MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Complaint has been preferred under section 17(1)(a)(i) of the C P Act, 1986.The Complaint Case No.CC/230/2013 being identical in facts, nature and character, the said case was analogously heard with the instant complain and is being disposed of by this common order.
The facts of the complaint, in brief, are that the OP No.2, the owner of the premises No. 10, Bhupen Bose Avenue, Kolkata 700004 entered into an Agreement for development of the said premises with the OP 1/Developer, executing in favour of the said Developer a General Power of Attorney in respect of the subject property.
According to the Agreement, the OP 1/Developer was to construct a multistoried building on the subject premises as per plan to be sanctioned by the Kolkata Municipal Corporation, to allocate 50% of the constructed space to the OP 2/owner against land cost and to retain the remaining 50% space as his own share. The OP 1/Developer, in terms of the said Agreement, was having the right to enter into further agreement for sale in respect of his own share of allocation with the intending purchaser.
The OP 1/Developer, accordingly, entered into an Agreement dated 07.06.2007 with the Complainant/Purchaser for sale of a flat out of his own allocation particulars of which are detailed in the “second schedule” of the said Agreement at a consideration of Rs.31, 20,000/-which included the value of the proportionate share of the land.
As per Para 19 of the Agreement, possession of the subject flat, after completion of construction, was to be handed over by September, 2007. The Complainant/Purchaser, as alleged, paid the full consideration but, due to delayed start of construction for reasons best known to the OP 1/Developer, the completion of construction was delayed and the letter of request for taking possession could not be issued by the OP 1/Developer before 29/04/2008.
The complainant, after taking over possession of the flat, requested the OPs on number of occasions to make arrangement for Execution and Registration of the Deed of conveyance in favour of the Complainant as well as supply the completion certificate issued by the competent authorities in respect of the subject property. There being no effective action from the OPs in response for a long period, the complainant filed the instant complaint praying order for:-
- Execution and Registration of the Deed of conveyance by the OPs in favour of the complainant.
- supplying the completion certificate from the competent authorities by the OPs to the complainant.
- payment of compensation to the tune of Rs. 5,00,000/-by the OPs to the Complainant for the harassment and mental agony sustained by the Complainant and
- payment of litigation cost of Rs.50,000/-by the OPs to the Complainant.
Heard the Ld. Advocate appearing on behalf of the Complainant. It was submitted that the complainant paid the entire consideration of the subject property as per Agreement and has been enjoying the possession of the subject property since 2008. Peculiarly enough, the OPs, as submitted, have not taken any step for Execution and Registration of the Deed of Conveyance or to hand over the completion certificate of the subject property in spite of repeated requests to that effect by the complainant.
The circumstances narrated above, as the Ld. Advocate continued, is enough indicative as to the deficiency committed by the Ops denying the Complainant the services due to him. The Complainant, as submitted, had to sustain immense harassment and mental agony for the aforesaid deficiency on the part of the Ops and therefore, the complainant is entitled to claim the cost and compensation payable by the OPs in addition to immediate Execution and Registration of the Deed of Conveyance as well as the furnishing of the completion certificate in respect of the subject property by the said OPs.
With the above submission, the Ld. Advocate prayed for the complaint to be allowed with appropriate direction upon the Ops
There was none to represent the Ops in spite of due service of notice upon them. The case is being taken up for hearing in compliance with the objective of the C. P. Act, 1986 of expeditious disposal of the case.
Perused the papers on record. Also perused the petition dated 10/07/2014 of the OP 1 filed before this commission wherein the OP 1 expressed his willingness to execute and register the Deed of conveyance in respect of the subject property but disputed the cost and compensation as claimed in the complaint. Nowhere in the aforesaid petition has any disagreement been evident towards non-payment of consideration by the Complainant to the O.P. No. 1 as per Agreement. This indicates that the consideration as per agreement in respect of the subject property was duly paid to the OP 1 by the complainant.
Further, the complainant stated in his BNA that the OP No. 2 is the person who actually dragged the issue unnecessarily and stood in the way of execution and Registration of the Deed of Conveyance.
We fail to understand why the vital issue of Execution and Registration of the Deed of Conveyance was not done even after delivery of possession of the subject property almost eight years ago and that too after all conditions including that of payment of due consideration being fulfilled by the complainant in time.
Keeping in view the facts and circumstances narrated above, we are of considered view that there was serious deficiency in service on the part of the OPs which put the complaint in acute mental agony having been deprived for a long period of the execution and registration of the Deed of Conveyance of the subject property.
At the same time, we appreciate that the cost and compensation claimed by the complainant was disproportionately high and, therefore, need to be reasonably reduced.
Hence ordered that the complaint is allowed in part with cost. The OPs are directed jointly and severally to:-
- execute and register the Deed of conveyance in respect of the subject property within 45 days from the date of this order.
- pay compensation of Rs.1,00,000/-and a litigation cost of Rs.10,000/- to the complainant within the said period of time.
- supply the completion certificate issued by the competent authorities to the complainant within the said period of time.
In case of default in respect of the direction under 2 above, a simple interest @10% per annum shall accrue to the amount of Rs.1,10,000/- from the date of default till the said amount is fully realized.
Instant order shall govern both the complaint cases bearing Nos CC/229/2013 and CC/230/2013.
