Date of filing : 14.02.2019
Date of Judgement: 26.11.2019
Mrs. Balaka Chatterjee, Hon,ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Ashoke Krishna Karmakar and Baby Karmakar alleging deficiency in service on the part of the OPs (referred as OP hereinafter ) namely (1) Nirmal Bhowmik (2) Sishil Bhowmik (3) Niva Bhowmik (4) Maya Dey ( Nee – Bhowmik ) (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 No.5,6 & 7 are the developer of the said plot of land. The complainant has stated that the said Hiranbala Bhwmick 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 the said Hiran bala Bhowlmik executed a partition deed in respect of a 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 and 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 on 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 18.06.1999 with the complainant in respect of a self-contained flat being no.C-1 measuring about 500 sq.ft more or less on the 1st floor of the said building at a consideration of Rs. 3,48,000/- and an amount of of 15,000/- was only received by the developer as Earnest /Part payment of the entire consideration amount from the complainant on 18.06.1999. 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 27.02.2001 and the complainant had to make the flat habitable by paying on his 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 18.06.1999, demand notice dated 31.07.2018 along with draft deed of conveyance and letter dated 20.01.2019, money receipts dated 18.05.1999, 18.06.2000, 20.09.2000, 27.10.2000, 27.02.2001 and possession letter dated 27.02.2001.
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 dated 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-1, measuring about 500 sq.ft. at a consideration of Rs. 3,48,000/- and paid entire consideration amount. It appears from the deed of agreement executed by and between the developer and the complainant that the complainant entered into an agreement for sale in respect of the said flat. Money receipts filed by the complainant also show that the complainant 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 developers allocation and the developer was empowered to sell flats from the developers allocation to the intending purchasers 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 27.02.2001 vide possession letter dt. 27.02.2001 by the developer. Copy of the possession letter dated 27.02.2001 filed by the complainants also supports such contention of the complainants. 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, he is entitled to get registration of deed of conveyance in favour of him. Under such state of affair, 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 complainant. Further the unrebutted as well as unchallenged evidence of the complainant supports the claim of the complainant. In the result, the consumer complainant succeeds in part.
Hence,
Ordered
CC/92/2019 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 18.06.1999 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.
