Date of filing : 14.02.2019

Date of Judgement: 03.12.2019

Mrs. Balaka Chatterjee, Hon,ble Member

          This petition of complaint is filed under Section 12  of the Consumer Protection Act, 1986 by Anindita Majumder alleging deficiency  in service on the part of the OPs (referred as OP hereinafter ) namely (1) Nirmal Bhowmick (2) Sushil Bhowmick  (3) Niva Bhowmick (4) Maya Dey ( Nee – Bhowmick ) (5) Mass Media represented by its partners (6) Ajanta Guha and (7) Saugata Mukherjee.

          Facts in brief are that the  the OP  Nos. 1 to 4 are the owners of a piece of land which was previously owned by their predecessor-in-interest Smt. Hiranbala Bhowmick  and the OP Nos.5, 6 & 7  Is the developer  of the said plot of land. The complainant has stated that said  Hiranbala Bhowmick died  on 12.12.1984 leaving behind  her  legal heirs   namely Nirmal Bhowmick, Parimal Bhowmik, Bimal Bhowmick, Sushil Bhowmick, Sumal Bhowmick, Mala Bhowmick, Ashoke Bhowmick, Kishore Bhowmick, Niva Bhwmick, Maya Dey and  Chaya Bhowmick and  said Hiran bala  Bhowlmik  executed   a partition deed in respect of the property  comprising   Dag Nos. 114, 189, 116 and 120 appertaining  Khatian No 252, J.L. No. 35, Touzi No. 151. As per said partition deed, the OP Nos. 1 2,3 an 4  became   the joint owner of a plot of land measuring about  3 cottah  13 chittaks  and 33 sq.ft. being Postal Premises No. 34/1, Garfa Main Road,   P. S. – Purba Jadavpur, Kolkata – 700 075 district –South 24-Parganas. The complainant have stated that the  OP Nos. 1 to 4 entered into a development agreement  27.08.1995 with the developer  i.e. OP No.5  for developing the said plot of land by constructing  a multi-storied building and a General Power of Attorney was also executed by the OP Nos. 1 to 4 in favour of the OP No.5, 6 & 7. The complainant have further stated that by the  strength  of said Development Agreement  and General Power of Attorney,  the developer  entered into  an agreement for sale  on 09.06.1996 with the complainant in respect of a self-contained  flat  being no.C-3 measuring about  600 sq.ft  more or less on the 3rd floor of the said building along with a garage space of  130 sq.ft. at a consideration  about Rs. 3,98,000/-  and an amount of  of 25,000/-  was only received by the developer as  Earnest /Part payment of the entire consideration  amount  from the complainant on 09.06.1996 and thereafter the complainant paid entire consideration amount. It is stated by the  complainant  during the period of construction of the said building  an accident was happened and the entire construction  work had been delayed. However, the developer handed over  possession  of the incomplete  flat to the complainant  on 09.11.1999 and the complainant  had to make the flat  habitable by paying  on her own. Thereafter,  the complainant  issued demand notice  asking for registration of deed of  conveyance in favour of the complainant but the OP paid no heed to that request and  being aggrieved the complainant by filing  the instant consumer complaint  prayed  for direction upon the OPs  to execute  and  register the deed of conveyance in respect of the schedule flat in favour of the complainant and other reliefs.

          The complainant  annexed  joint Promotion Agreement   dated 27.08.1995 , power of Attorney  dated 23.12.1996 agreement for sale  dated 09.06.1996  demand notice dated 31.072018 along with  draft deed of conveyance  and letter dated 20.01.2019,  money receipts  dated 09.06.1996, 09.10.1996, 11.09.1997, 09.12.1997, 09.10.1998 and possession letter dated  09.11.1998.

          Notices were served  but OPs did not turn up . So, the case proceeded exparte against  OP Nos. 1 to 4  vide order dated 04.06.2019 and exparte against OP No.5 vide order date d 12.07.2019. The complainant prayed for treating the petition of complaint as evidence. Prayer was allowed.

Decision with reasons

          Complainant claimed  to have entered into an agreement for sale   with the O P No. 5 in respect of a flat  being no, C-3, measuring about 600 sq.ft.  along with a garage space measuring 130 sq.ft. at a consideration  of Rs. 3,98,000/- and  paid entire consideration amount. It appears from the deed of agreement executed by and between the developer and the complainants that the complainant  entered into an agreement for sale  in respect of the said flat along with garage space measuring 120 sq.ft. Money receipt filed by the complainants also show that the complainants paid entire consideration amount. It further appears from the development agreement executed by and  between the OP Nos. 1 to  4 and OP Nos. 5, 6 & 7 that the  plot in question was agreed  to be developed by the  developer  by constructing  a multi-storied building and the developer  was entitled to get a portion of the said building as to the developer’s allocation and the developer  was empowered to  sell flats from the developer’s allocation to the intending purchaser and execute  the deed of conveyance in respect of the sold flats in favour of the purchaser after completion of the construction  of the building. General Power of Attorney which was executed in favour of the developer also supports  such contention of the complainants. Complainants has claimed that the complainants  was  received possession on 09.11.1999 vide possession letter dt. 09.11.1998 by the developer. Copy of the possession letter dated 09.11.1998 filed by the complainant  also supports such contention of the complainant. On perusal of Line 4 Para 4 of the deed of agreement dt. 09.06.1996 it appears that the No. Of flat has been mentioned therein as Flat No. A3 on the 3^rd floor, it further appears from the schedule of the said deed of agreement that the No. of the flat as mentioned therein as flat No. C3 on the 3^rd floor. However the complainant by swearing an affidavit has stated that the said discrepency is nothing but typographical mistake. On consideration of the said affidavit, money receipt, Possession letter dt. 09.11.1998 and unrebutted as well as unchallenged evidence of the complainant we are inclined to allow the prayer of the complainant. To sum up, the complainant entered into an agreement  for sale and paid entire  consideration  amount and received possession of the flat in question. So, she is  entitled  to get  registration of deed of conveyance in favour of her. Under such state of affairs,  it will be just and proper if a direction  is given to the OPs to execute and cause registration of the deed of conveyance in favour of the complainants. In the result, the consumer complainant succeeds in part.

Hence,

                                         Ordered

       CC/90/2019 is allowed exparte without cost. Opposite Parties  are directed  to execute and register the deed of conveyance in favour of the   complainants as per agreement dated  09.06.1996 within three months from the date of communication of this order to the OPs, in default the deed of conveyance will be executed  and registered through machinery of this Forum.