Order-7.
Date-12/10/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short is that one Kesto Mondal, since deceased, husband of OP-1 and father of OP-2 to 3 entered into a development agreement dated 14.08.2013 being the owner with developer (OP-4) for construction of a G+3 storied building at premises No. 112 also known as Netaji Nagar Colony, PS . Tiljala, presently Anandapur, Kolkata-700 100 on certain terms and conditions as stipulated therein.
Subsequently the Complainant entered into an agreement for sale dated 10.03.2014 with the owner and the developer for purchase of a flat in the first floor having area measuring 640 Sq. ft. super built up area at a total consideration of Rs. 11 lakhs as described in the schedule of the petition of complaint. OP-4 signed as developer and received Rs. 2 lakhs and subsequently Complainant also paid a further sum of Rs.7 lakhs to OP- 4 and OP- 4 thus received a total sum of Rs.9 lakhs in respect of the said flat. The developer also delivered the possession of the subject flat to the Complainant on 04.08.2015 after receiving said consideration amount. It is stated that original owner Kesto Mondal died in the year 2015 leaving behind OPs-1 to 3 as legal heirs and successors. The present OPs 1 – 3, however, have not given any Power of Attorney in favour of OP- 4 to execute the Deed of Conveyance in respect of the developer’s allocation. It is stated that OPs-1 to 3 being the legal heirs of Kesto Mondal and OP- 4 being the developer are liable to execute the Deed of Conveyance in favour of the Complainant jointly. It is stated that the Complainant repeatedly requested the OPs to execute the Deed of Conveyance in favour of the Complainant, but the OPs neglected and refused to execute the Deed of Conveyance in respect of Complainant. It is also alleged that the construction of the said building is in incomplete conditions and certain works have not been completed as stated in Para no. 8 of the petition of the Complainant. The Complainant also sent legal notice dated 16.02.2017 to the OPs, but the OPs in spite of receiving the notices failed to comply with the request of the notice. The Complainant has alleged deficiency of service against the OPs when the OPs failed and neglected and refused to execute the Deed of Conveyance. Hence this case.
Despite service of summons, none appeared from the side of the OPs and the case has proceeded ex parte against the OPs.
Point for Decision
- Whether OPs are deficient in rendering service to the Complainant?
- Whether Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. photocopy of Gift Deed dated 23.06.2011, photocopy of Property Tax, photocopy of Development Agreement, photocopy of Agreement for Sale dated 10.03.2014, photocopy of Payment receipts and other documents on record.
It appears from the documents on record that one Kesto Mondal was the original owner of the property situated at premises No.112 also known as Netaji Nagar Colony, PS . Tiljala, presently Anandapur, Kolkata-700 100. During life time the said Kesto Mondal entered into a development agreement on 10.03.2014 with OP- 4, the developer for construction of G + 3 storied building on the aforesaid plot subsequent to execution of the said development agreement, the said Kesto Mondal handed over the possession of the subject plot of land to the developer for construction and development of the said plot of land. The Complainant entered into an agreement of sale with OP- 4 and original owner Kesto Mondal, since deceased for purchasing a flat in the first floor as described in the schedule of the petition of complaint from developer’s allocation at a total consideration of Rs. 11 lakhs. It also appears and as stated by the Complainant, the Complainant paid an amount of Rs.9 lakhs out of Rs.11 lakhs to the developer and the developer also gave possession of the said flat to the Complainant. It is however, alleged that the construction of the building is absolutely in incomplete condition. It is alleged that the developer also did not hand over the completion certificate of the building to the Complainant. It is stated that outside plaster of the building is incomplete, water supply and water tank in the building are also incomplete, meter room, main gate and plaster inside the room are also lying incomplete. The Complainant has furnished a list of incompletion works in para no. 8 of the petition of the complaint.
It also appears that OPs have not executed and registered the Deed of Conveyance in favour of the Complainant. We think that the OPs being the owner and developer are duty bound to execute the Deed of Conveyance in favour of the Complainant in respect of the subject flat. It however, appears that the Complainant has paid Rs.9 lakhs out of Rs. 11 lakhs, so the Complainant has to make payment of the balance consideration to the OP- 4 at the time of execution of the Deed of Conveyance. We think that non execution of the Deed of Conveyance is, of course, a deficiency in service on the part of the OPs. OP-1 to 3 being the legal heirs of the original owner are also duty bound to execute and register the Deed of Conveyance in favour of the Complainant along with the developer.
Despite service of summons, none appears from the side of the OPs to contest or controvert the case of the Complainant. The affidavit-in-chief as filed by the Complainant remains unchallenged and uncontroverted in absence of any contrary and controverting materials on record and having regard to the document thereon, we think that OPs have been deficient in rendering service to the Complainant. Moreover, OP- 4 as it is alleged has not completed the construction of the building as alleged in para no.- 8 of the petition of the Complainant.
Consequently, the case merits success.
Ordered
That the instant case be and the same is allowed ex parte against the OPs.
OP-4 along with OP-1 to 3 are directed to execute and register Deed of Conveyance in respect of the subject flat in favour of the Complainant within 45 days from the date of the order subject to payment of the balance consideration amount by the Complainant to OP- 4.
Complainant is also directed to make payment of the balance consideration of the amount in favour of OP - 4 during the said stipulated period.
OP- 4 is also directed to complete the unfinished works of the building as mentioned in para-8 (A to L) and handover certificate of completion to the Complainant within the said stipulated period apart from litigation cost of Rs.10,000/-.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
