FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the OP is a Sole Proprietor of M/s Pramila Construction. Complainant was in search of Sweetable accommodation for her younger son namely Manik Swarnokar and the OP having learned such intention of the complainant, offered her to sell a residential flat on the ground floor of KMC Premises No. 8A, Madhav Chatterjee Street, Kolkata-700020 comprising two bed rooms with one toilet measuring about 280 sq. ft. super build up area fully described in the schedule of the complaint petition. Complainant expressed her desire to purchase said flat from the allocation of OP on the proposed G+3 storied building at a total sale price of Rs. 13,50,000/- and an Agreement for Sale dated 05.02.2018 was executed between the parties and in terms of the said agreement for sale complainant paid an amount of Rs. 4,50,000/- to the OP. In terms of the Agreement for Sale, the OP is liable to handover physical possession of the subject flat to the complainant within 06 month from the date of execution of the agreement. In default, the complainant is entitled to refund the advance amount.
Further case of the complainant is that on 01.01.2015, the OP had availed a financial accommodation of Rs. 3,00,000/- from the husband of the complainant and out of such amount, Rs. 1,000/- refunded. On 24.06.2019, the OP again availed loan of Rs. 5,00,000/- from the husband of the complainant and it was agreed between the parties that such amount would be adjusted against the sale price. The OP physically handover possession of the subject flat to the complainant in the month of March, 2018 incomplete condition. As a result, the complainant incurred Rs. 1,50,000/- to renovate and complete the unfinished work of the subject flat. The husband of the complainant passed away and the complainant approached with the bank official to avail House Building Loan to fulfill her part of the obligation in terms of the Sale Agreement. The bank official assured to sanction house building loan to the complainant, if her son is implicated in the Agreement for sale as a co purchaser. The OP verbally give his willingness to incorporate the son of the complainant in the Supplementary Agreement for sale but the OP did not execute any supplementary agreement for sale incorporating the name of her younger son. Even, the OP failed and neglected to execute and register deed of conveyance of the subject flat in favour of the complainant and her younger son though it is the obligation of the OP to execute and register deed of conveyance in favour of the complainant and her younger son. Alleging deficiency in service and unfair trade practice the complainant has filed the consumer case against the OP.
Despite service of notice, the OP did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus the case runs ex parte against the OP.
Sir Mainak Swarnokar son of the complainant has filed evidence by way of affidavit in where he has reirritated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainant and also perused the material available on record.
In course of hearing the Ld. Advocate for the complainant submitted that there is a gross deficiency in service and unfair trade practice on the part of the OP. Despite receiving a bulk amount of sale price, he did not execute and register Deed of Conveyance. It is prayed that the consumer complaint should be allowed in terms of the prayer.
We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate of the complainant and find that the OP is the sole proprietor of M/s Pramila Construction who agreed to construct a G+3 storied building on the KMC Premises No. 8A, Madhav Chatterjee Street, Kolkata-700020 owned by Sri Pashupati Chandra. Development Agreement dated 29.01.2013 was executed and registered between the said Pashupati Chandra and the OP. On perusal of the photocopy of the agreement for sale dated 05.02.2018, It appears that the OP agreed to sell a self contained flat measuring about 280 sq. ft. super build up area on the South East portion on the ground floor of the proposed building fully mentioned in the second schedule of the Agreement for Sale. The sale price of the subject flat is Rs. 13,50,000/-. On perusal of the photocopy of letter dated 26.02.2018 of the OP, it appears to us that he availed financial assistance of Rs. 8,00,000/- from the husband of the complainant. Complainant admitted in the complaint petition that the OP refunded Rs. 1,00,000/- to her husband out of Rs. 8,00,000/- and remaining loan amount of Rs. 7,50,000/- adjusted with the sale price of the subject flat. Thus, it is crystal clear that out of total sale price of Rs. 13,50,000/-, complainant had paid Rs. 7,50,000/-. Therefore, the complainant is liable to pay remaining sale price of Rs. 6,00,000/- to the OP. Complainant alleges that the OP physically handover the subject flat to her in unfinished condition for which she incurred a huge amount to make it habitable condition. Complainant fails to produce any scrap of paper to show that she incurred huge amount for complete the unfinished work of the subject flat. Annexure D is the copy of Supplementary Agreement for Sale and it is not executed between the OP, complainant and his younger son. Thus, the Supplementary Agreement for Sale has no value in the eye of law. Therefore, the purported Supplementary Agreement for Sale is not binding upon the OP. There is no existence of Supplementary for Agreement for Sale for which we cannot direct the OP to execute the same. There is no dispute that the complainant is liable to pay balance sale price of Rs. 6,00,000/- to the OP and without payment of such amount we cannot direct the OP to execute and register deed of conveyance in favour of the complainant.
It is the duty of the OP to execute and register Deed of Conveyance in favour of the complainant after receiving balance sale price of Rs. 6,00,000/-. OP did not file WV denying the allegation of the complainant as made out in the complaint petition. Complainant cannot be made to wait indefinitely for execution and registration of the Deed of Conveyance. Thus, the Commission has the authority to pass appropriate order in this complaint case.
It is settle law that the complainant being the purchase of the subject flat for residential purpose is a ”Consumer” under the provision of Consumer Protection Act, 2019. We also find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OP.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OP without any cost with the following directions:-
- OP is directed to execute and register Deed of Conveyance of the subject flat fully mentioned in 2nd schedule for agreement for sale measuring about 280 sq. ft. super build up area on the ground floor of the building situated at KMC Premises No. 8A, Madhav Chatterjee Street, Kolkata-700020.
- OP is also directed to issue possession letter and completion certificates of the subject flat to the complainant.
The OP is directed to comply the above order within a period of 90 days from today and the complainant shall pay the balance sale price of Rs. 6,00,000/- to the OP within 60 days from today. Complainant will bear cost of stamp duty and registration charges for execution and registration of Deed of Conveyance .
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
