Date of Filing : 24/01/2022
Date of Judgment : 30/09/2024
Sri Manish Deb, Hon’ble Member
That the opposite party (OP No.1 )herein is the developer of a plot admeasuring 5 katah 9 chittacks little more or less together with four storied building lying and situated at 38A Lansdowne Terrace, Kolkata 700 026 , who constructed building on the said premises for residential purpose .
The complainants states that said property originally belonged to i) Kamala Ghosh ii) Jyotirmoy Ghosh (iii) Jayanti Ghosh, iv) Tanmoy Ghosh the OP No. 2 to 5 who are the recorded owners of the property, who have entered in to development agreement and executed power of attorney in favour of the opposite party (OP No.1 ) for development and construction of a residential building at said premises.
The complainant along with her husband Dr Sukumar Dutta were in search of an appropriate accommodation and during their search for a dwelling unit for their family they came to contact with the said developer the opposite party (OP No.1 ) and being satisfied with the construction of the building . The construction of the building was in progress . The Complainant with her husband Dr Sukumar Dutta have entered into an agreement for sale on 02.04.1999 with the developer to purchase all that piece and parcel of one flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space in the new building at Premises No.38A Lansdowne Terrace Kolkata 700 026 from developer’s allocation with other amenities as mentioned in the sale agreement for a total consideration amount of Rs.7,87,296/- and complainant paid the entire consideration amount i.e the purchase price money for the proposed flat.
The complainant states that opposite party (OP No.1 ) has delivered possession of the property to the complainant but has not executed the final deed of conveyance till date of filing of the case.
The complainant stats that she has expressed and communicated her intention to get and complete the registration of the deed of conveyance in respect of flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space but the opposite party (OP No.1 ) has been neglecting to perform its part of contract on one pretext or the others to execute the deed of conveyance even after receipt of the full consideration amount and inspite of the several requests, persuasions, personal visitations, letter of requests and or telephonic conversations said the opposite party (OP No.1 ) developer has never shows its little bit of interest to execute the deed of conveyance and or to uphold or perform the duties and responsibilities toward the complainant herein.
Though according to complainant, she paid the entire consideration amount and excess amount also paid by the complainant to the opposite party (OP No.1 ) said money needs to be refunded by developer .
It is fact that after execution of the agreement and prior registration of the flat the husband of the complainant died leaving behind her as legal heir( there is no evidence of other legal heirs of the Dr Sukumar Dutta now deceased)
The complainant states at all materials point of time the complainant is earnestly ready and willing to get register her allotted flat in her name by paying the appropriate stamp duty, registration fees and other incidental costs as being her obligation to get her flat be registered but owning to non cooperative adamant unreasonable , whimsical and illegal attitude on the part of the opposite party (OP No.1 ) the overall bonafide attempts on the part of the complainant was turned down on one pretext to other with gross, wrongful intention to harassment on the part of the opposite party (OP No.1 ) .
Whereas on several occasions complainant personally visited the offices of the opposite party and requested them to do the needful in this regard but unfortunately opposite party ( OP No. 1) has always falsely assured the complainant that company is going to take appropriate steps for registration of her flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space very shortly
but all the hopes and efforts of the complainant/petitioner in respect of the registration of the deed of conveyance of her flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space went in vein.
That since all the sincere attempts on the part of the complainant has failed due to the gross negligence and wrongful activities on the part of opposite party( OP No.1) and/or as verbal request along with constant persuasion failed to yield any positive gesture from the side of the opposite parties and the complainant finding no other suitable alternative on 21/12/2021 has issued a legal notice through Ld Advocate, and requested the opposite party( OP No.1) to execute and register a valid deed of conveyance in her favour in respect of her purchased property as per sale agreement within a period of fortnight from the date of the receipt thereof and the said legal notice returned back to the addressee.
The complainant lodged this complaint praying for
i) direction to the opposite party to execute and register the deed of conveyance in respect of the property being Schedule-“B” of the un-registered agreement of sale dated 22.04.1999 and/or refund the entire amount paid amounting to Rs.7,87,296/- along with interest @18% p.a. from the date of receipt of payment to till its realization and also to provide the completion certificate to the complainant by the opposite parties.
ii) Direction to the opposite parties to return back the amount which excess paid more than the agreed amount payment as per the registered agreement of sale dated 22.04.1999 amounting to Rs.5,00,704/- by the OPs to the complainant.
iii) Direction to the opposite parties to pay compensation amount of Rs.5,00,000/- for causing day to day mental agony harassment and unfair trade practice and also Rs.3,00,000/- for enhancement of registration charges and stamp duty together with interest on pendentlite @18% pa.. till date of execution and registration of the conveyance and till realization .
As per complainant the opposite party is under obligation to execute and register the deed of conveyance in favour of the complainant inrespect of the flat in question as such it causes the delay and default on the part of the opposite party and non Execution of registration of deed of conveyance be considered as negligence and deficiency in service on the part of the opposite party towards the complainant.
POINTS FOR DISCUSSION
Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
Whether the commission has the jurisdiction to decide the present complaint
Whether the opposite party in deficient in providing its services to the complainant.
Whether the case is maintainable or not
Whether the complainant is entitled to get relief as prayed for.
OBSERVATION, DISCUSSION AND FINDINGS
The complainant falls in the category of the “Consumer” under Consumer Protection Act 2019.
It is filled within two years from the date on which the cause of action has arisen.
The commission has territorial jurisdiction to decide the present complaint as the property in question is situated at 38A Lansdowne Terrace, Kolkata 700 026 ,
The main question for consideration before us is whether the opposite parties are deficient by not providing service for registration of the flat , including one room on the ground floor and car par king space within the stipulated period after receiving the full consideration money from the from the complainant .
And our view is the opposite parties are liable in deficiency in service and unfair trade practice as alleged.
Our view regarding entitlement of getting relief sought by the complainant is also affirmative.
The facts and circumstances as stated herein it is crystal clear that the complainant being the bonafide purchaser of the flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space in the building situated at premises No.38A Lansdowne Terrace, Kolkata – 700026.
That the opposite parties are under obligation to execute and register the deed of conveyance in favour of the complainant in respect of her flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space in the building situated at premises No.38A Lansdowne Terrace, Kolkata – 700026, in question and such delay and default on the part of the opposite party in respect of the non execution of the deed of conveyance should be considered as negligence and deficiency in service on the part of the opposite parties and which caused serious prejudice, loss and suffering to the complainant altogether with pain mental harassments agony for which the complainant is entitled to get relief
It is surprising to note that while the complainant was given possession of the said flat after paying the full consideration of Rs.7,87,296/-pursuant to the agreement of sale dated 22/04/1999, the OPs failed to execute and register the deed of conveyance in favour of the complainant for the reasons best known to them. Though as per agreement of sale, the OPs were duty bound to execute register the deed of conveyance.
It is observed that the land owner ops No. 2 to 5 , executed General Power of Attorney on in favour of the OP No.1 with respect to the total property of the project which includes the subject flat i e flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space to be purchased by the complainant and that power of attorney conveys the right to sign and execute the deed of sale in favour of the purchaser / complainant by op No.2 and to receive the full and final consideration money from the purchaser.
Thus in our opinion during the period of pendency of the said Power of Attorney, OP No.1 was very much competent to execute the deed of conveyance on behalf of the owners executants, But that did not happen.
Even after passing over 22 years developer of the land owners did not have any barrier to execute and register the deed of conveyance, in spite of the OP No. 2 to 5 have given the power of execution of deed upon OP No.1 , we do not find any justified reason for not executing and registering the deed of conveyance by the all Ops no one on the part of the opposite parties did not shows any interest for execution and registration of the deed of conveyance.
It is needless to mention that without execution and registration of the deed of conveyance, the right and title of the complainant over the purchased property does not hold good title at all.
In our view deficiency in service on the part of OPs is established. As the OPs have contest the case field the evidence on their part . The and arguments, adduced by the complainants remains unchallenged and in our opinion, the complainant has successfully established her case thereby, making herself eligible for the relief(s), sought for.
It is crystal clear from the sale agreement submitted by the complainant, that complainant and her husband decided to purchase the said flat for residential purpose, but in course of time she realized that the OPs willfully left the scenario after receiving total consideration money from the complainant without performing or rendering the service for which the payment was made to them.
We also observed that though initial payment and final payment was received by OP1 as per the contents of the agreement Both payments were duly acknowledged by respective recipients by way of issuing money receipts.
Now it is pertinent to consider the gravity of mental agony and harassment to the complainant caused by the deficiency in service by the OPs for prolonged period of 22 years during which the OPs miserably failed to take any step towards any progress of registration of the flat on the second floor measuring about 800 sq.ft. super built up area , one room and one toilet in the ground floor also one car parking space
We feel that acts and omissions on behalf of the OPs reflect an unambiguous character of unfair trade practice adopted by the OPs with the intent/motive of deceiving the complainant and it needless to mention, to what extent such act on the part of OPs created mental agony and harassment towards the complainant. Since the OPs has contested the case , and filed the evidence and documents adduced by the complainant remains unchallenged.
Under the circumstances stated herein above, the complainant is entitled to get relies and ops are bound to execute deed of conveyance in favour of complainant
The opposite parties No. 1 has filed its written version through its director and contended that they have handed over the possession of the flat to the complainants and her husband with extra area of 92 Sq.ft even the complainant occupied 225 sq.ft for the purpose of car parking space in place of 120 sq.ft even the complainants did not paid any extra amount for excess area occupation , the opposite party also submits that the complainant has availed loan of Rs.3,43,500 from the opposite Party No.1 the op No.1also submits that complainant did not filed any service and maintenance of the flat to the OP No.1.
It is further contented that the opposite party (op no. 1)is always ready to execute the deed of conveyance in favour of the complainant, subject payment of Rs. 8,88,139 along with maintenance charge , but our observations is that such contents are not part of the sale agreement , however opposite party has not produced any documents to show , regarding the taking of loan by complainant from the opposite party No1 due of maintenance on the part of the complainant. The Op No. 2 to 5 have also filed written version and denied all allegation against them labeled by the complainant.
Whereas under the contractual obligation the OPs were supposed to do certain acts provide service as agreed towards the complainant within a certain time frame of work which they did not performed and as such the acts of the said OPs come under the ambit of deficiency of service.
The complainant has filed evidences, and also forwarded Brief Note of Argument at the time of advancing oral argument in the case and contesting all ops have filed written version in the case raised objection against several points of complaints filed by the complainant.
One more aspect which need to be mentioned here that though the opponents developer have raised so many technical issues and as well as casted doubts about the legal heirs of the Dr. Sukumar Dutta after his demise and non inclusion of name of legal heirs in the complaint
We have applied our mind and gone though the material on record together with the Annexure /documents filed in the case course of trial.
On receipt of the total consideration money of the flat Ops had to executed and registered the deed of conveyance within the stipulated time frame from date of execution of sale agreement with respect to the scheduled flat in favour of the complainant.
As opposite parties No. 2 to 5 being the owners of the property have executed development agreement and power of attorney , thus they are also liable and responsible for the act of the op No.1 pursuing the principal and agent policy .
In our opinion, the complainant has succeeded in establishing her case and thereby entitled to get relief. The complainants filed evidence and BNA and also advanced verbal arguments during the proceedings.
In our opinion, the complainants have successfully proved their case and therefore eligible to get relief(s), since more than 22 years have already elapsed we are of the opinion that handing over of the bungalow to the complainant in near future would not be practicable.
Hence it is
ORDERED
CC No.45/2022 is allowed against OPs.
- All Opposite parties are directed to execute and registered deed of conveyance of the flat which mentioned in the second scheduled of the sale agreement as well as described in the complaint application, to the complainant within 60 days from the date of this order.
- Alternatively the opposite party No.1 is directed to pay Rs. 7,87,296/ along with interest @12% p.a. for the period from the date of payment made by the complainant from the dated 22/04/1999 till the date of actual payment of the amount as stated above .
- The opposite party No.1 also directed to pay Rs.2,00,000/-towards compensation for harassment ,unfair trade practice and Rs.20,000/- towards cost of litigation within 60 days from the date of this order.
- The opposite party No.1 also directed pay excess money if any paid by the complainant to the OP No. 1 on production of the voucher and Bills by the complainant.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
