Date of Filing : 22/07/2019

Date of Judgement : 20/12/2023

Mr Sudip Niyogi, Hon’ble President

                                                                BRIEF FACTS

Complainant had entered into an agreement for sale on 05/07/2017 for purchasing one flat in the proposed building to be developed by OP1 & OP2 following a development agreement between the said OPs and OP3 to OP7. The said OP1 and OP2 who had shortage of fund and approached the complainant following which the said agreement for sale was made.  Complainant also made advance payment of consideration which was fixed at Rs.13,25,000/-. It was a 600 sq.ft. flat in the second floor of the proposed building.  The stipulated time for the said flat was 21 months from the date of execution for sale.  The complainant already paid Rs.9,55,000/- but alleged subsequently OP2 refused to give possession of the flat to the complainant for which one notice was issued by him through his advocate asking OP2 to handover the possession of the flat but no reply was given to that notice. So he by filing this case, prayed  for delivery of possession of the flat, execution and registration of the deed of conveyance in respect of the flat, payment of compensation and cost of litigation.

OP2 who is the sole proprietor of OP1 proprietorship firm filed one written version and admitted to have entered into an agreement for sale with complainant for the flat and claimed that he could not execute and register the deed of conveyance in favour of the complainant because he had no development agreement and power of attorney at the instance of the heirs of deceased landowners Late Durga Rani Das and Late Sandhya Das.  He also admitted that the complainant worked as labour contractor in the said project and booked the said flat for security purposes. However, he prayed for dismissal of the instant complaint. No other OPs appeared to contest the instant case following which it was heard ex parte against them.

Complainant filed his evidence and also produced documents , brief notes of arguments. OP No.1 & 2 also produced some documents along with their written version.

So point for determination is whether the complainant is entitled to any relief(s) in this case.

FINDINGS

On going through the materials on record including written version of OP1 & OP2 and the documents, it is found that the complainant had entered into an agreement on 05/07/2017 for purchasing the scheduled flat of 600 sq.ft.super built up area together with the undivided proportionate share of plot of land at Municipal Premises No.109 Ashutosh Colony, P.S. Garfa formerly Kasba – 700078 corresponding to mailing address 13 Ashutosh Colony at a price of Rs.13,25,000/-.  The stipulated time for completion of the said project  was 21 months.

The developer i.e. OP1 & OP2 also admitted the fact that the complainant who is a labour contractor worked in the construction of the said project.  The money receipts issued by developers produced by the complainant revealed that he paid towards the consideration by making payment on several dates. Apart from this, Ld. Advocate for the complainant submitted that the documents produced by the developer along with their written version showing adjustment of amount of Rs.4,85,000/- towards the consideration.  The money receipts produced by the complainant revealed payment of Rs.9,55,000/- and the documents viz., bills produced by the developer along with written version revealed adjustment of Rs.4,85,000/-. The total amount thus comes to Rs.13,40,000/- when the actual consideration of the flat was Rs.13,25,000/-.

As admitted by the developer/OP2 that he could not execute the deed of conveyance in favour of the complainant despite having willingness to do the same, we think the complainant should get the relief as prayed for in the petition of complaint.

Accordingly it is

                                      ORDERED

that the complaint is allowed on contest against OP1 & OP2 and ex parte against the remaining OPs (OP3 to OP7). 

OPs are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant in accordance with the agreement for sale dated 05/07/2017.

OP1 and OP2 to pay cost of litigation of Rs.6,000/- to the complainant. 

The OPs are directed to comply with the aforesaid order from the 30 days from the date of this order failing which the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

                President