Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 206 / 2009

1)           Sri Dilip Kumar Banerjee and

2)           Smt. Manju Banerjee

Both of

P-30A, Indrani Park, Kolkata-700033.                     ---------- Complainant

1)           Sri Satya Das,

68, Izzatulla Lane, Kolkata-33.

2)           Sri Goutam Kumar Dutta

3)           Sri Ashim Kumar Dutta,

Both of

8, Pankajini Chatterjee Road, Kolkata-33.             ---------- Opposite Party

Present :        Sri S. K. Majumdar, President.

                        Smt. Jhumki Saha, Member.

                        Sri T.K. Bhattacharya, Member

Complainant, Sri Dilip Kumar Banerjee and his wife, Smt. Manju Banerjee by filing a Petition of Complainant under Section 12 of the Consumer Protection Act, 1986 on 05.06.2009 have prayed for issuing direction upon the O.P. No. 1, Shri Satya Das, the Developer of the building in question to execute and register the Deed of Conveyance in respect of the Complainants’ flat on the ground floor of the building measuring 300 sq. ft. super-built area and deliver possession in terms of the Agreement dated 21.12.2007 on receiving the balance Consideration Money of Rs. 1,10,000.00 together with the undivided proportionate share on the ground land alongwith all other common areas and facilities available in the building in question situate at premises No. 7B, Indrani Park, Kolkata-700 033, Police Station : Charu Market, District : 24-Parganas (South), and pay a Compensation of Rs. 1,00,000.00 and Litigation Cost of Rs. 10,000.00 and any other relief or reliefs as the Forum may deem fit and proper.

The fact of the case, in short, is that the O.P. Nos. 2 & 3 by way of inheritance from their predecessors became the absolute joint owners of the premises No. 7B, Indrani Park, Kolkata-700 033 and they got the building plan for construction sanctioned from Kolkata Municipal Corporation of a new Ground Plus 3-Storied building thereon and an Agreement dated 27.094.2004 was executed by and between the Developer, O.P. No.1 and the owners, O.P. Nos. 2 & 3. Thereafter, on 03.05.2004the owners, O.P. Nos. 2 & 3 executed a General Power of Attorney in favour of the Developer, O.P. No. 1 to deal with the property in question and on the basis of Power of Attorney coupled with the Agreement dated 27.04.2004 the Developer constructed G+3 Storied building on the premises described above. Subsequently, O.P. No. 1 declared to sell out Parking Space of Motor-cycle measuring, more or less, 242 sq. ft. covered area on the ground floor with the assurance to convert the said Motor-cycle Space into a self-contained flat observing all the formalities of Kolkata Municipal Corporation.

Thereafter, the Complainant entered into an Agreement for sale with the O.Ps for purchasing the said self-contained flat measuring about 300 sq. ft. super-built area of the flat in question for Total Consideration Money of Rs. 2,40,000.00, and the Complainant out of Total Consideration Money of Rs. 2,40,000.00 paid Rs. 1,30,000.00 in terms of the Agreement dated 21.12.2007 and assured to pay rest of the Consideration Money of Rs. 1,10,000.00 and the Complainant was asked to pay the entire Consideration Money before the completion of the sale transaction and the O.P. No. 1 agreed to deliver possession by 30.06.2008. The Complainant is always ready and willing to pay the balance Consideration Money of Rs. 1,10,000.00 but the O.P. No. 1, the Developer has not yet executed and registered the Deed of Conveyance in respect of Complainants’ flat in question measuring about 300 sq. ft. in terms of the Agreement dated 21.12.2007 and being aggrieved against such act of the Developer, O.P. No. 1 the Complainant has filed his case with the aforesaid prayers.

The case was filed on 05.06.2009. O.P. No. 2 & 3 appeared on 20.07.2009, but O.P. No. 1, the Developer did not appear. The O.Ps No. 2 & 3 did not file any Written Version. So the case is heard ex parte against all the O.Ps.

The Complainant has no grievance against the owners of the building, O.P. Nos. 2 & 3, but he has only grievances against the Developer, O.P. No. 1 who inspite of receiving Part Consideration Money of Rs. 1,30,000.00 out of Total Consideration Money of Rs. 2,40,000.00 has neither given him possession over the flat in question as described above nor has be executed and registered a Deed of Conveyance in favour of the Complainants, although the Complainant are always ready and willing to pay the rest of Consideration Money of Rs. 1,10,000.00. We have perused the Agreement for Sale, Annexure-B which was duly registered in the Office of the Registrar of Alipore between the Developer, O.P. No. 1 and the Vendor, O.P. Nos. 2 & 3. We have also perused the Schedule of the Deed.

It also appears from the Page-26 of the Petition of Complainant, Memo of Consideration that the Developer, O.P. No. 1 received Rs. 40,000.00 on 21.12.2007 out of Rs. 2,40,000.00. It also appears from Page-28, Annexure-C of the Deed that the O.P. No. 1 has accepted Rs. 1,30,000.00 on 25.03.2009 leaving a balance unpaid sum of Rs. 1,10,000.00. It appears from the Annexure-A Series that in all the O.P.-Party has already paid Rs. 1,30,000.00 out of Total Consideration Money of Rs. 2,40,000.00 leaving a balance of Total Consideration Money of Rs. 1,10,000.00.

We have also perused the Examination in-Chief of the Complainant No. 1, Dilip Kumar Banerjee and it appears to us that his Evidence is not only fully corroborative but thoroughly supportive in nature with regard to the pleadings made out in his Petition of Complaint speaking therein that out of Total Consideration Money of Rs. 2,40,000.00 they have paid Rs. 1,30,000.00 to the Developer, O.P. No. 1 for purchasing a flat measuring about 300 sq. ft. on the address given above in terms of the Agreement dated 21.12.2007.

In view of this position there is nothing to disbelieve the unchallenged testimony of the Complainants, and we find that the Complainants are entitled to get the relief in terms of their prayer as ordered hereunder.

Hence

that the O.P. No. 1, Satya Das, the Developer of the building in question is directed to execute and register the Deed of Conveyance in respect of the Complainants’ flat on the ground-floor of the building measuring 300 sq. ft. super-built area and deliver possession thereof in terms of the Agreement dated 21.12.2007 receiving balance Consideration Money of Rs. 1,10,000.00 together with undivided proportionate area on the ground floor alongwith other common areas and facilities in the said building situate at 7B, Indrani Park, Kolkata-700 033, P>S. Charu Market, District : South 24-Parganas, positively within 45 days from the date of communication of this Order, filing which the Complainant will be at liberty to get the flat in question executed and registered at his own cost from the Registration Office within his jurisdiction. O.P. No. 1 is also directed to give Compensation of Rs. 10,000.00 for the mental harassment and agony suffered by the Complainants and to pay Cost of Rs. 1,000.00 as Litigation Cost positively within 45 days from the date of communication of this Order, failing which it will carry interest @ 10% per annum.

Fees paid are correct. Complainant may get Certified Copy of this Office upon payment of prescribed fees.