SAMIKSHA BHATTACHARYA,  MEMBER 

The instant  Complaint has been filed by the complainant under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.

The  facts of the case, in brief, are that the OP No. 1 is the promoter-cum-developer by profession to develop flats and apartments. OPs No. 2 and 3 are the land-owners-cum-vendors in respect of   Premises No. 350,  Jesshore Road, PS Lake Town, Kolkata 700055, District  24 Parganas,  (North) measuring about 2 cottahs 3 chhitacks and 3 sq. ft. more or less. The OPs No. 2  & 3 entered into one Development Agreement with the OP No. 1on 15.05.2012 and on the basis of the said Development Agreement, the OPs No. 2 & 3 also executed a general power of attorney on the same date in favour of the developer i.e.,  OP No. 1. On the  basis of development agreement,  as well as  general power of attorney, the OP No. 1 has  erected the  main structure of a multi-storied building at the said premises according to the sanctioned building plan vide Permit  No. 698 dated 09.03.2013 issued by South Dum Dum Municipality.

One Agreement for Sale dated 28.09.2015 was executed  among the complainant and OP No. 1 in respect of a flat  in the  said building which is within the developer’s allocation. According to the Development Agreement, all the OPs being the   owners and developer have agreed to complete the execution of the deed of conveyance in favour of the complainant within three months from the date of handing over the possession of the said flat and the complainant has duly paid a  sum of Rs.29,00,000/-  to the  OP No. 1 out of total consideration of Rs.29,04,000/-  for   the said flat and the OP No. 1 has duly handed over the possession of the  said flat being  No. A-1 measuring about  968 sq. ft. super built up area within the aforementioned premises. 

It was further agreed between the complainant and the OP No. 1  that the OP No. 1  would complete the construction work within  the period of three months from the date of handing over the possession  but it is a fact that till date the OP No. 1  has not completed the  construction work for  boundary walls of the  subject premises, stair cases from the first  floor to the roof, common areas and the entire ground floor and parapets over the roof  top while the OP No. 1 has  given the possession of the flat on 27.04.2017  to the complainant. The OP No. 1 has also the  obligation to serve the copy of  the completion certificate issued  by the competent authority to the complainant. But till date no  step has been taken for that purpose. Thereafter,  the complainant  has severally requested the OPs to execute and register the deed of conveyance  in respect of the said flat in favour of the complainant and prior to  that to complete the  pending construction works but the OPs kept silent without any reason whatsoever. The complainant has requested the  OPs through  a  representation  made on 11.04.2019 seeking the execution and registration of the deed of  sale in respect of the said flat and  prior to that the completion of the   above said constructional work, but till date no step has been taken. The OP No. 1 has  only issued a reply, requested the complainant to meet with him  at the convenience of OP No. 1.  The complainant  has suffered  severe mental trauma and shock and due to  lackadaisical  approach of the OPs in dealing  and  addressing the grievance of the complainant, the complainant  shattered which laid him to utter deprivation and  for such reason the complainant is now seeking direction upon the OPs. Hence, the application before this Commission  praying for direction upon OPs to  execute and the register  of deed of  sale in respect of the said flat  in favour of the complainant within a reasonable time and prior to that to complete the construction work for boundary walls of the said premises, stair cases from first floor to the roof, common areas and the entire ground floor and the parapets  from the roof top and also to hand over the completion certificate issued by the concerned municipality to the complainant within  a reasonable time. The complainant has also prayed for litigation cost of Rs.2,00,000/- and compensation of Rs.1,00,000/- for suffering mental agony and pain.

Though the notice was served upon all the  Ops, none appeared before this Commission to contest the case  by filing written version. The case was proceeded ex parte  against all the OPs.

On the date of final hearing, the Ld. Advocate for  the complainant has drawn our attention by showing the Development Agreement entered into  by and between the land-owners and the developer, which was executed on 15.05.2012. On the basis of that  Development Agreement, the complainant entered into an Agreement for Sale on 28.09.2015 with the OP No. 1/developer. In the said agreement, it was stated that   OPs No. 2 & 3 are  the owners  who absolutely seized and possessed the  piece and parcel of the land in question. As per agreement for sale dated 28.09.2015 the complainant entered into the Agreement for Sale   for purchasing the flat being No. A-1 measuring about 968 sq. ft. super built  up area,  Premises No. 350,  Jesshore Road, PS Lake Town, Kolkata 700055, District  24 Parganas,  (North) which is within the developer’s allocation as per the  Development Agreement. The parties have agreed to complete the execution  of the deed of conveyance in respect of the flat in question  within three months from the date of handing over the possession of the said flat. Complainant  duly paid Rs.29,00,000/-  out of  Rs.29,04,000/- as total consideration. But till date, the registration and execution of the flat is due and  several  constructional works for boundary wall of the said premises, stair cases from first floor  to roof, common areas and the entire ground floor and parapet are  not completed. Though the OP No. 1 has delivered the possession of the flat on 27.04.2017 to the complainant, the registration of the deed of conveyance is due and the  several constructional works  are not completed. The complainant  sent a representation on 11.04.2019 and the OP No. 1 replied to the same with request to meet  him by  early appointment   in his residence to solve the matter but ultimately no meeting was held with the OP No. 1.  Therefore, the  Ld. Advocate for the complainant has   prayed for allowing the complaint petition   by giving a direction upon  OPs as mentioned in the prayer  portion of the  petition of complaint.

Upon hearing the Ld. Advocate on behalf of the complainant and on perusal of the  entire materials on record, it is evident that the development  agreement was executed by and between the land-owners and the developer on 15.05.2012. On the basis of the Development Agreement, the complainant entered into an Agreement for Sale with the OP No. 1/developer on 28.09.2015 for purchasing a flat in question for a consideration of Rs.29,04,000/-. In the agreement for sale in running page 16 of the agreement for sale it is specifically mentioned under the heading “Memo of Consideration” that Rs.6,00,000/- was received by the developer from the complainant. The complainant has filed several money receipts   issued by the OP No. 1. The money receipt dated 11.08.2015 against Rs.2,00,000/-, money receipt dated 15.11.2015 against  Rs.3,00,000/-, money receipt dated 28.12.2015 towards Rs.5,00,000/-, money receipt dated   25.11.2016 against Rs.2,00,000/-, money receipt dated 12.12.2016 against Rs.2,00,000/-  have been annexed by the complainant with the petition of complaint. However, the complainant has filed  a  non-judicial stamp paper in support of his payment wherefrom it is revealed that the complainant has paid Rs.29,00,000/- on different dates and  against each  and every payment. OP No. 1 has signed. In the running page  54 of the   petition of complaint  it is evident that the complainant has paid Rs.3,50,000/- on 16.06.2015, Rs.50,000/- on 19.07.2015, Rs.2,00,000/- on 11.08.2015, Rs.50,000/- on 05.05.2017, Rs.3,00,000/- on15.11.2015,Rs.5,00,000/- on 28.12.2015, Rs. 2,00,000/- and Rs.1,00,000/- on 25.11.2016, Rs. 2,00,000/- and Rs.1,00,000/- on 10.12.2016, Rs.50,000/- on 02.01.2017, Rs.5,00,000/- on 11.03.2017, Rs.1,00,000/- on 12.04.2017, Rs.2,00,000/- on04.09.2017. Since the OP No. 1 has  signed against each and every payment  there is no dispute that the complainant has paid Rs.29,00,000/-. As per clause No. 3 of Agreement of Sale (internal Page 4 of Agreement for sale dated 28.09.2015).   The OP No. 1 is bound to register the deed  of conveyance of the flat in favour of the complainant. Since the case is proceeded ex parte we do not know whether  the power of attorney  has been revoked by the landlords  given in favour of the OP No. 1 developer. Therefore, we think that the  Order should be given to all the OPs to execute and register the  deed of conveyance in favour of the  complainant. The landlords will sign on the deed of sale as confirming the parties.

Now the question is whether the complainant is entitled to get relief in respect of   completion of boundary wall and  other works which are mentioned  in the  prayer portion of  the petition of complaint. These grievances are related to interest of all  the  flat owners but the complainant has not filed any application under Section 12 (1)©   to file the petition of complaint after taking the necessary permission from this Commission. Section 12(1)©  of the CP Act, 1986 is reproduced  as under:

“12. Manner in which complaint shall be made –

(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered  or any service provided or agreed to be provided may be filed with a  District Forum by - …………..

(C) one or  more consumers where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or……”

Since  the complainant has not filed any application under Section 12(1)©, therefore, the reliefs as prayed for which are for the benefit of all the flat  owners cannot be entertained.

Now the  question  is whether the complainant is entitled to  any compensation.  An agreement was entered  between the complainant and the developer on 28.09.2015. Clause   No. 9  of the Agreement for Sale (internal Page No. 6) within 30 days (time is the essence of the contract) from  the date that the property agreed to be sold is notified by the developer as complete. As per Clause No. 10, if the purchaser fails to obtain the registered conveyance  or deed of transfer in respect of the property agreed to be sold as aforesaid within 3 (three) months from the date of handing over the possession  of the  property  agreed to be sold the  purchaser shall be liable to  bear  and pay to the developer  of such duty/penalties if imposed by registering or not other authority or authorities. The complainant has notbeen completed within the stipulated period. Moreover, the possession of the flat was delivered on 27.04.2017 but till date registration is due. It is the obligatory duty of the OP No. 1 to take necessary  steps for registration but the OP No. 1 has failed to do the same. The OP No. 1 has replied to the same only intimating  the complainant  for fixing   the date for meeting but however, the  OP No. 1 has  not taken any  initiative.

The agreement  for sale was executed in the year 2015 and the possession of the flat was given in the year 2017. Though the  scheduled date for delivery  of possession was much earlier that the actual date of delivery of possession.  As per Agreement, the OP NO. 1  failed to do the registration  process.   This is 2023. Though the OPs gave  the possession of the flat in question  to the complainant  on 27.04.2017 but till date the  execution and registration is due  till date. Therefore, the complainant has suffered mental agony and stress. Therefore, we are of the view that the complainant is entitled to compensation  payable  by the  OP No. 1.

Therefore, we think that the complainant is entitled to get some  amount  of compensation since he has got  only possession of the flat.

Accordingly, the complainant has substantiated his case and  accordingly, the complaint case succeeds.

Hence,

       it is

                                         O R D E R E D  

The Complaint Case being No. CC/326/2019 be and the same is allowed ex parte against all the OPs.

The OPs  are jointly and severally  directed to execute and register the deed of conveyance of the flat in question  within 60 (sixty) days from the date of this order.  

The complainant is directed to pay Rs.4,000/- (Rupees four thousand) only  as  balance consideration  on the  date of registration. 

The cost of registration shall be borne by the complainant.

The OP No. 1 is also directed to pay compensation of Rs.50,000/- (Rupees fifty thousand) only to the complainant within the aforementioned  stipulated period  for  causing  harassment and mental agony, in default, OP No. 1 is liable to pay interest @ 8% p.a. over the amount of compensation till realization of the amount.

OP No. 1 is  also directed to pay litigation cost of  Rs.20,000/- (Rupees twenty thousand) only to the complainant  within the  aforesaid stipulated period.

If the  OPs fail to  comply with the  order as aforesaid, the complainant is at liberty to put the decree into execution.

Let a   plain copy  be supplied to the parties free of cost as per Regulation.