Judgment : Dt.27.4.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed by Sri Subrata Roy Chowdhury of 155-A, Kankulia Road, Kolkata-700 029, against (1) Schematic Consultants (Pvt.) Ltd., (2) Sri Dipankar Bhattracharjee and (3) Smt. Sunanda Chakraborty nee Bhattacharjee.
Case of the Complainant in brief is that being intended to acquire a residential flat the Complainant came in touch with the OP No.1, the Developer Company whom he approached for the flat, having an area of 460 sq.ft. at 2nd floor of a building at premises No.155-C, Kankulia Road, P.s.-Lake, Kolkata-700 029, at a consideration of Rs.89,00,000/- only and accordingly, on 12.10.2001, an agreement for sale was executed by and between the Complainant and the OP No.1. The Complainant has stated that on 14.08.2001, the OP No.2 being the land-owner and the OP No.1 being the Developer executed a Development Agreement under certain terms and conditions, including respective allocations i.e. Developers allocation at first and second floor and 50% at ground floor construction of the proposed building. The OP No.2 also executed a general power of attorney on 01.10.2001 in favour of the Developer. The Complainant has further submitted that the OP No.1 by a letter dated 20.11.2001 informed the Complainant the payment schedule and by another letter dated 22.11.2001 informed about a brief introduction of the Developer Company. However, the Complainant through his banker (OP No.3 – Proforma OP herein) paid the entire amount of consideration and thereafter liquidated the loan disbursed by the bank in favour of him. The Complainant has stated that the OP No.1 vide letter dated 14.10.2002 delivered possession of the said flat in favour of the Complainant. The Complainant claimed to have been paying Municipal Tax, Electric Bill, etc. since then. The Complainant has specifically stated that the Complainant thereafter on several occasions i.e. in August, 2003, December 2004, in 2006, 2008, 2010 and 2012 met the OP No.1 and requested him to execute Deed of Conveyance in favour of him, but, in all occasions the OP No.1 avoided him on different pleas. Subsequently, as the Complainant has stated, in 2013, the OP No.1 asked the Complainant to get the Draft Deed prepared and to hand over the same to the land owner OP for necessary approval. The Complainant prepared the Draft Deed and handed over to the OP Nos. 2 & 3 but the OP No.1 showed reluctance to take steps for registering the same. In 2014 and 2015 the Complainant made attempt to get the flat registered in favour of him but the attempt yielded no fruitful result. The Complainant has also stated that had the Developer taken steps for registration of Deed of Conveyance in proper time i.e. after delivery of possession of the flat in question the registration cost would have been much less. Accordingly, the Complainant has prayed for direction upon the OPs to execute and register the Deed of Conveyance in respect of the property in question in favour of the Complainant, alternatively, let it be done through the machinery of this Forum, to pay Rs.2,00,000/- towards compensation and Rs.10,000/- towards costs.
Notices were duly served upon the OPs, but, they did not turn up and, therefore, this case, vide Order No.7 dt.15.3.2017 has been proceeded ex-parte against them.
Decision with reason
It appears from the un-challenged evidence and documents annexed thereto specially the letter dt.14.10.2002, issued from the end of the developer to the purchaser acknowledging receipt of entire amount of consideration in respect of the flat No.2 at the building situated at 155-C, Kankulia Road, Kolkata-700 029 and delivered the vacant possession of the same as per terms of the Agreement for sale dt.12.10.2001, that the Complainant paid entire amount of consideration to the Developer and the Developer having been satisfied with the same delivered possession of the flat in question.
There are seriatim of decisions of the Hon’ble National Commission that execution and registration of the property in respect of which parties enter into agreement for sale in favour of the purchaser. As the developer has failed to register the flat in question, it constitutes element of deficiency as defined under section 2(1) of the C.P.Act. The OP Developer should compensate the Complainant for that deficiency in providing service. Considering the situation specially hike of the value of stamp in registration of Deed, we are of opinion that an amount of Rs.1,00,000/- will be just and proper to compensate the Complainant.
Since the OP No.1/ Developer compelled the Complainant to file the instant case he is liable to pay Rs.10,000/- towards cost of litigation.
In the result, the petition of complaint succeeds.
Hence,
ordered
That the Consumer Complaint being No.628/2016 is allowed in part ex-parte against the OPs with cost against OP No.1 and without cost against the OP Nos.2 & 3.
The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within one month from the date of communication of this order, alternatively, the said flat having No.2 at 155-C, Kankulia Road, Kolkata-700 029, will be registered through the machinery of this Forum.
The OP No.1 Developer is directed to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards litigation cost to the Complainant within one month from the date of communication of this order failing which the entire amount shall carry interest @ 9% p.a. for the defaulted period.
