Date of filing: 18.08.2020

Judgment date: 28.12.2022

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainants Sri Srinjoy Shankar Ray and Rituparna Ray U/s. 34/35 of the Consumer Protection Act, 2019 against the opposite parties (referred as O.P.s hereinafter) namely (1) Pintu Enterprises (2) Pintu Sengupta (3) Sri Kamal Dasgupta (4) Sri Subal Dasgupta (5) Sri Parimal Dasgupta (6) Sri Balai Dasgupta (7) Sri K. Dasgupta (8) Sri Mintu Dasgupta (9) Sri Debasish Chowdhury & (10) Sri Prasenjit Chowdhury alleging deficiency in service on their part.

The case of the complainants in short is that opposite party no.1 being represented by its proprietor O.P. No. 2, entered into a development agreement dated 22/02/2013 with the opposite party nos. 3 to 10 being the owner of the property as described in the schedule ‘A’ of the development agreement.  Subsequently by an agreement for sale dated 23/02/2015, O.P. No. 1 & 2 the developers agreed to sell one self-contained flat measuring 2100 sq. ft. in the entire 2^nd floor, to the complainants at a consideration of Rs. 60,00,000/-. The complainant paid Rs. 40,00,000/- at the time of execution of the said agreement and also further paid a sum of Rs. 11,50,000/- on the request of the opposite party 1 & 2. Even though complainants were put in possession of the flat they were not completely constructed. The complainant requested the O.P. to complete the said construction work and to execute and register the deed of conveyance on receiving of the balance amount of Rs. 8,50,000/-. But the O.P. did not pay any heed. Complainants also sent a notice through their Ld. Advocate and on receipt of the same, opposite party 1 & 2 approached the complainant to enhance the price of the flat due to increase of the measurement of the said flat and thus total price was settled to Rs. 66,96,000/- instead of Rs. 60,00,000/- which has already been paid by the complainants. The complainants thereafter were also handed over the possession vide possession letter dated 30/10/2018. But since the opposite parties failed to execute and register the deed of conveyance, present complaint has been filed by the complainants praying to direct the opposite parties to execute and register the deed of conveyance in favour of the complainants in respect of the subject flat, to pay Rs. 50,000/- towards the cost of litigation and Rs. 2,00,000/- as compensation.

On perusal of the record it appears, notices were sent but none of the O.P.s took any step neither filed any written version, so the case has been heard exparte against them.

The only point required determination is whether the complainants are entitled to relief as prayed for?

DECISION WITH REASON

  In support of their claim that a development agreement was entered into between the opposite parties 1 & 2 being the developer and O.P. Nos. 3 to 10 being the owners, complainants have filed a copy of the development agreement dated 22/09/2013 and have also filed the agreement dated 23/02/2015 entered into between the complainant and the O.P. No. 1 being represented by O.P. No. 2. On perusal of the agreement entered between the opposite parties it is evident that as per the terms of the said development agreement developer was entitled to sell his allocation and consequent to the said terms and conditions O.P. No. 1 & 2 agreed to sell the subject flat by agreement for sale dated 23/02/2015. The memo of consideration in the said agreement reveals that complainant has paid total sum of Rs. 40,00,000/- out of then settled price of Rs. 60,00,000/-. Complainants have also filed receipts showing further payment and a document dated 30/10/2018 termed as final sale value agreement appears to have been executed between O.P. Nos. 1 & 2 and the complainants, reveals that the total price value was enhanced to Rs. 66,96,000/- from the earlier settled price of Rs. 60,00,000/-. It further reveals that the complainants had already paid Rs. 61,65,000/- and outstanding amount was Rs. 5,31,000/- which appears to have been paid in full by the complainant as the possession letter issued by the O.P. dated 30/10/2018 does not indicate any amount due to be paid by the complainants. The possession letter has been annexed with the complaint as Annexure – ‘G’. A money receipt is also filed dated 18/11/2018 showing payment of Rs. 1,31,000/- by the complainants which as per document dated 30/10/2018 was to be paid at last towards balance outstanding. So it is evident that in spite of payment of the entire consideration price, the deed has not been executed by the opposite parties in favour of the complainants. In such a situation the complainants are entitled to execution and registration of the deed in their favour in respect of the flat as per agreement for sale dated 23/02/2015 especially when before this commission, no contrary material is forthcoming to counter or rebut the claim of the complainants.

So far as prayer of the complainants for compensation, in the given facts and situation of this case, we find no justification to pass an order of compensation. However they are entitled to the litigation cost.

Before parting with the judgment, it will be appropriate to highlight that this complaint was filed on 18/08/2020. The consideration price paid by the complainants as referred to above is Rs. 66,96,000/- which exceeds the pecuniary jurisdiction of the commission as per the present situation. But in this contest it may be mentioned here that the Consumer Protection (Jurisdiction of District Commission, State Commission and National Commission) Rules, 2021 came into effect in December 2021 where the pecuniary jurisdiction of the District Commission was brought to Rs. 50,00,000/- from 1 crore. So when this complaint was filed on 18/08/2020, the pecuniary jurisdiction of the District Commission was up to 1 crore. So there has not been any legal impediment to proceed with the case.

Hence

            ORDERED

CC/161/2020 is allowed exparte. Opposite parties are directed to execute and register the deed of conveyance in favour of the complainants in respect of the schedule flat as per agreement for sale dated 23/02/2015, within two months from this date. O.P. Nos. 1 & 2 are directed further to pay litigation cost of Rs. 12,000/- to the complainants within the aforesaid period of two months.