Date of filing: 02/09/2019                                                    

Date of Judgment: 24/02/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Sri Khokon Poddar under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) Sangita Sahoo (2)(a) Biswajit Biswas (2)(b) Subhra Das allies Papia Biswas (2)(c) Dalia Pal allies Dalia Biswas alleging deficiency in service on the part of the opposite parties.

The case of the complainant in short is that O.P. 2(a) namely Biswajit Biswas and Shefali Biswas (since deceased and her legal heirs being O.P. 2(b) and 2(c)) as owners entered into a development agreement on 16/08/2000 with the developer Amarendra Sahoo (now deceased) for construction of a multi storied building. Said Amarendra Sahoo raised the building but unfortunately died on 22/03/2016 and after his death, his daughter Sangita Sahoo O.P. No. 1 entered into an agreement as developer with the complainant to sell a flat about 1200 sq. ft. super built-up area on the 3^rd floor at a total consideration price of Rs. 19,00,000/-, on 01/06/2016. Complainant has paid the entire consideration price of Rs. 19,00,000/- to the developer O.P. 1. The developer O.P. 1 promised to hand over the possession of the flat and execution and registration of the deed in favour of the complainant within September,2017 but in spite of the repeated request neither the possession has been handed over nor deed of conveyance has been executed in favour of the complainant by the opposite parties. Thus the present complaint has been filed praying to direct the opposite party to hand over the possession of the schedule flat as per agreement and to execute sale deed in favour of the complainant, to pay 80,000/- as compensation and Rs. 10,000/- as litigation cost.

O.P. No. 1 contested the case by filing the written version contending specifically that after the death of her father the original developer, 20% unfinished work was to be completed. She has always been ready and willing to hand over the possession of the schedule flat in favour of the complainant after completion of the construction therein. So the O.P. No. 1 has prayed for the dismissal of the case.

O.P. No. 2(b) and 2(c) have also contested the case by filing the written version contending inter-alia that their mother namely Shefali Biswas now deceased and brother Biswajit Biswas O.P. 2(a) had entered into a development agreement with the predecessor interest of O.P. 1. The agreement for sale has been entered into between O.P. 1 with the complainant and there is no lathes and lacuna on the part of the opposite party O.P. 2(b) and 2(c). O.P. 1 is liable to hand over the possession. So they have prayed for dismissal of the case with cost.

O.P. 2(a) did not take any step neither filed any written version So, case has been heard exparte against O.P. 2(a).

So the following points require determination.

1. Whether there has been deficiency in rendering of service on the part of the opposite party?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

Claim of the complainant that a development agreement was entered into between the predecessor-in-interest of O.P. 1 as developer and O.P. 2(a) and the predecessor interests of O.P. 2(b) and 2(c) as owners on 16/08/2000 has not been denied and disputed by opposite parties. It is also not disputed that an agreement for sale was entered into between O.P. 1 after the death of original developer, and the complainant on 01/06/2016 to sell a flat measuring about 1200 sq. ft. described in the schedule ‘B’ of the agreement for sale. This is also an admitted fact that the total consideration price of Rs. 19,00,000/- has been paid by the complainant to O.P. 1 but the possession of the flat and the deed of conveyance has not been executed. According to the O.P. 1, 20% of the construction was left to be completed by her predecessor in interest namely Amarendra Sahoo and she shall complete the same by March, 2020 (be it noted that the written version was filed on 16/01/2020 and the said fact of finishing the 20% of unfinished work by March 2020 was stated in the written version). There is no material before this commission that the possession of the flat has been handed over as stated in the written version.

On perusal of the copy of the development agreement filed by the parties it is evident that  “Developer” shall mean the said Amarendra Sahoo (original developer) and / or his respective heirs, executors, administrators. So since the recital of the said agreement is categorical about the heirs being also the developer, after the death of Amarendra Sahoo O.P. No. 1 being his daughter had entered into agreement for sale with the complainant. It may also be pertinent to point out that the said development agreement discloses that the Schedule ‘A’ property described in the said agreement was gifted to the said owners Biswajit Biswas and Shefali Biswas by the Government of West Bengal and the gift deed was executed on 08/07/1999. It appears that immediately next year only owners entered into development agreement i.e. in August2000. There was embargo of ten years to transfer the said property. However the agreement for sale between the complainant and O.P. No. 1 has been entered into on 01/06/2016 which is much after the period of embargo. In such a situation since apparently complainant has paid the entire consideration price but neither the possession of the flat has been delivered nor the deed has been executed, complainant is entitled to the possession of the said flat and also execution and registration of the deed in his favour. However in the given facts and situation of this case, we find no justification to pass an order of compensation.

Hence

           ORDERED

CC/467/2019 is allowed on contest against O.P. No. 1 and O.P. 2(b) and 2(c) and exparte against O.P. No. 2(a). Opposite party No. 1 is directed to hand over the possession of the flat to the complainant as per agreement for sale dated 01/06/2016 and all the opposite parties are directed to execute the deed of conveyance in favour of the complainant in respect of the flat as described in the said agreement for sale dated 01/06/2016, within three months from the date of this order.

Opposite Party No. 1 is further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of three months.