Complainant by filing this complaint submitted that she purchased one flat No. 301measuring 550 sq. ft. on the 3^rd floor of premises No. 20A, Kalidutta Street, Kolkata-700005 and op is the developer and the proforma defendants are the joint owners of the said premises.

          Fact remains that original owner of the premises was Sudhindra Kumar Guha and on his death on 17.04.1973, his widow wife Nandita Guha, one married daughter Smt Ratna Basu (nee Guha) and only son Goutam Guha became the absolute owner of the property by inheritance and said Nandita Guha, Goutam Guha, Ratna Basu (nee Guha) as joint owners decided to develop their property by erecting a (G+3) multi-storied building on the said land after obtaining sanctioned plan from the Kolkata Municipal Corporation and thereafter they entered into a Development Agreement with the developer/op no.1 Suman Construction and Suman Chakraborty is the proprietor of the said organization.

          The said building plan is Building Permit No. 7/EE/Borough11/2006-07 dated 18.05.2006 valid upto  17.05.2011 and the developer constructed the said building on the said premises and in respect of Development Agreement a General Power of Attorney was executed and registered on 16.05.2006 and thereafter the owners revoked the said power of attorney and the intimation for revocation was given by the owners stating the reasons for such cancellation of the said power of attorney.

          Subsequently, during continuation of the said construction one of the owner of the said property namely Goutam Guha died on 05.07.2009 leaving behind his widow wife Smt Swarupa Guha and two sons Indranil Guha and Gourav Guha and only married daughter Smt Debonilia Naidu as his legal heirs and successors.

          Complainant in support of execution of the agreement to sale paid a total consideration of Rs.8,80,000/- to Suman Chakraborty of M/s Suman Construction Co. and entered into an agreement for sale with developer on 17.08.2006 and on receipt of entire amount op no.1 handed over possession of the said flat to the complainant and complainant has been possessing the same since then.

          Thereafter op fixed up the date of registration but on particular date he did not turn up for registration though complainant repeatedly requested the op/developer to get the title deed of registration in his favour but he avoided.  Subsequently, the owners of the premises (land) by publication in newspaper dated 26.12.2012 in Sambad Pratidin requested the developer to come and to execute the deed of conveyance in favour of purchaser within 15 days from the notice failing which the owners shall execute deed in favour of the purchaser.  But in respect of that M/s Suman Construction and its proprietor did not execute any such deed and actually for negligent and deficient manner of duties and for violating the terms of the contract of the agreement complainant has filed this case for redressal.

          In this case notices were duly served upon the ops but ultimately ops did not turn up for which the case is heard exparte finally.

                                          Decision with reasons

          No doubt after considering the evidences on record of the complainant including the vital fact of the agreement to sale dated 17.08.2006, it is found that agreement to sale was executed by Suman Chakraborty as proprietor of M/s Suman Construction Co. with the complainant in respect of the schedule property of this case as also mentioned in the schedule of the said agreement and from  the document it is also proved that Suman Chakraborty received Rs. 5,72,000/- from Central Bank of India vide 4 cheques within the period from 11.06.2007 to 04.08.2008 and possession was delivered to the complainant no doubt and further it is proved that ultimately op no.1 received Rs.8,80,000/- and possession was delivered.  But even then the deed was not executed in favour of the complainant, though a draft deed was prepared by the complainant in non-judicial stamp paper of Rs.10/- and it is proved that op did not at all consider the same and also did not execute the deed of sale and register the same.

          As per agreement to sale dated 17.08.2006 complainant is entitled to get a registered sale deed from the op, but op even after accepting the entire amount of Rs.8,80,000/- did not execute the same.  So, invariably complainant has his cause of action to file this case to get registered deed of sale in respect of the case flat.  Most interesting factor is that notices were also served upon the ops by publication in Sambad Pratidin on 5^th September, 2013, but even then ops did not turn up to challenge the complainant’s claim and so relying upon the evidence of the complainant and the allegation of the complaint including the documents as filed by the complainant, it is proved that deed of sale has not been executed by the op no.1.  But reason is already expressed by the complainant that power of attorney as executed by the land owners had already been revoked.  So, invariably it is proved that op no.1 had no fault for non-execution and registration of the sale deed because op no.1 had no legal power to execute such deed of sale and register the same and fact remains that the land owners other ops (Proforma) by publication informed the op no.1 to execute the sale deed with them and register the same in favour of the purchasers but even then op no.1 did not turn up.

          In the above situation we are of the view that no doubt the complainant is entitled to get relief when final deed of sale has not been executed by all the ops as yet and it has not yet been registered.

          In the circumstances, the present case succeeds.

Hence, it is

                                                  ORDERED

          That the complaint be and the same is allowed on exparte against op no.1 with cost of Rs.10,000/- and same is allowed exparte against other ops (proforma) but without any cost.

          Ops are directed to execute the registered sale deed in favour of the complainant after execution of the same as per agreement within one month from the date of this order failing which the complainant shall have his/her liberty to file application praying for execution of the sale deed through this Forum as per agreement to sale and in that case op no.1 shall have to pay Rs.40,000/- as service charge which shall be paid to the State Consumer Welfare Fund, but registration cost etc shall be paid by the complainant, if op no.1 fails to comply the order.

          Further for non-compliance of the Forum’s order, op no.1 shall have to pay a punitive damages to the extent of Rs.40,000/- to the complainant for causing harassment and for not executing the sale deed even after giving possession and receiving the entire consideration of Rs.8,80,000/-.  But same shall be paid within one month from the date of expiry of execution of the sale deed and if it is not made by the op no.1 for violating the Forum’s order and continuous disobeyance of the Forum’s order by the op no.1, op no.1 shall have to pay a penal interest @ Rs.200/- per day till full satisfaction of the decree and said amount if it is collected, shall be deposited to State Consumer Welfare Fund and even for violation of the Forum’s order op no.1 shall be prosecuted u/s 27 of C.P. Act 1986.