Judgment : 20.2.2017
This is a complaint made by Smt. Indrani Sarkar, wife of Kamal Sarkar, residing at A/7/1, Poddar Nagar Colony No.2, 1st floor, P.S.-Jadavpur, Kolkata-700 032 against (1) Partha Roy Chowdhury, son of Late Satya Ranjan Roy Choudhury, A/7/1, Poddar Nagar Colony No.2, 2nd floor, P.S.- Jadavpur, Kolkata-700 032, OP No.1 and (2) Smt. Bulu Bhattacharjee, wife of K. G. Bhattacharjee, 12, Bikramgarh (Kali Bari), Kolkata-700 032, OP No.2, praying for a direction upon the OPs to register the deed of conveyance in favour of the Complainant in respect of the flat situated at A/7/1, Poddar Nagar Colony No.2, P. S.- Jadavpur, Kolkata-700 032, measuring about 1200 sq.ft. super built up area, further direction upon the OPs to pay a sum of Rs.2,00,000/- towards the cost of delay for executing the deed of conveyance in favour of the Complainant, direction upon the OPs to pay a sum of Rs.1,00,000/- for harassment, troubles, mental agony and for direction upon the OP No.1 to pay a sum of Rs.50,000/- towards litigation cost.
Facts in brief are that the mother of the OP No.1 was the absolute owner of the land and property measuring about 2 cottahs 03 chittacks at Poddar Nagar. OP No.2 is the developer and OP No.1 is the son of the owner. OP No.2 being the developer constructed a three storied building on the said land in the month of July, 2003 and approached Complainant to sell one self contained flat measuring about 1200 sq.ft. together with proportionate share and a total consideration was fixed Rs.7,40,000/-. Complainant agreed to purchase the flat and made payment of Rs.3,00,000/- as advance amount and entered into agreement for sale on 8.7.2003. Thereafter, Complainant paid Rs.7,40,000/- on different occasions and developer received the money and acknowledged the receipt. The OP No.2 handed over possession of the flat on 20.9.2005. Complainant made several requests to the OP No.2 to make conveyance deed. But, he did not obliged. Thereafter, Complainant issued notice. But, despite the notice the OP did not execute the conveyance deed. So, Complainant filed this case.
On the basis of above facts, notices were served upon the OPs. But, they did not appear. Thereafter, OPs did not make any appearance, so, the case proceeded ex-parte against the OPs .
OP No.2 filed written version wherein he has denied all the allegations of the complaint and prayed for dismissal of the complaint.
Decision with reasons:
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Complainant has also filed original copy of agreement for sale which reveals that there was an agreement for sale between the parties and Complainant has paid the amount of Rs.3,00,000/- at the time of agreement. This agreement for sale has been signed by the Complainant and OP No.2 who is the developer. Complainant has stated that he is in possession of the flat. Original receipts are also filed showing that Complainant paid Rs.85,000/- on 9.3.2004, Rs.80,000/- on 27.4.2004 and Rs.1,10,000/- on 20.9.2005. Further, Complainant has filed possession certificate showing that she was handed over the possession on 20.9.2005. So, it is clear that Complainant is in possession and has paid the consideration money because the allegation of Complainant remained unchallenged and unrebutted.
As such, Complainant is in necessity to a decree for registration of conveyance deed in her favour. So far as compensation of Rs.2,00,000/- for making delay in executing the deed of conveyance and Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- as litigation cost are concerned, it appears that as per the agreement for sale that it was executed on 8.7.2003 and Complainant paid the rest part of the consideration money up to 20.9.2005, possession was handed over on 20.9.2005 to the date of filing of this complaint.
Suddenly, on 3.10.2016, Complainant issued a notice to the OP for making conveyance deed. There is no explanation forthcoming as to why Complainant did not take any step for about 10 years for making conveyance deed in her favour.
As such, we are of the view that there is no ground to allow compensation and litigation cost.
Hence,
ordered
CC/486/2016 and the same is allowed in part on contest against OP No.2 and ex-parte against OP No.1. OPs are directed to make conveyance deed in favour of the Complainant within three months of this order.
