Date of Filing: 15.02.2021

Date of Judgment: 29.04.2022

Mrs. Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainants, Sri Subhadip Mukherjee and Smt. Deblina Mukherjee, under section 12 of the C.P Act, 1986 against the Opposite Party namely Shri Raju Mukherjee ( referred to as O.P hereinafter),  alleging deficiency in service  and unfair trade practice on the part of the O.P.

            The case of the complainants in short is that by way of an Agreement for Sale dated 18.9.2016 entered into between them and the O.P/developer , they purchased entire second floor in the building being Kolkata Municipal Premises no. 8, KarunamoyeeGhat Road under P.S Haridevpur consisting of self contained residential 2 flats each measuring about 450 sq.ft at a total consideration of Rs. 37,50,000/-. Complainants have paid Rs.6 lac at the time of execution of the said agreement to the O.P. But subsequently one another registered agreement for sale was executed between the parties on 12.3.2020 and complainant have paid total sum of Rs.36 , 00,000/- out of the consideration price of Rs. 37,50,000/-. As per agreement dated 12.3.2020 the O.P had to complete the flat and deliver possession within 90 days . But neither possession of the flat has been delivered, nor the deed has been executed.  So, the present complaint has been filed by the complainants directing the  O.P to complete registration of the deed of conveyance along with possession letter, directing the O.P to provide all the services as provided in the agreement and to pay compensation.

            Complainants have filed with the complaint, copy of the Development Agreement, copy of the Agreement for Sale entered into between the parties dated 12.3.2020, copy of the Agreement for sale dated 18.9.2016 and the copy of the money receipts showing payment of the sum by the complainant towards the consideration price.

            On perusal of the record it appears that inspite of service of notice O.P did not take any step . Thus case came up for exparte hearing.

            The complainant during the course of the trial filed affidavit-in-chief and subsequently also filed the brief notes of argument. So, only point requires determination is whether the complainant is entitled to the reliefs as prayed for.

                                                            Decision with reasons

            In support of their claim, two agreements entered into between the parties have been filed by the complainants and also the copy of the Development Agreement entered into between the owner and the O.P/developer. From the Development Agreement dated 8.2.2016 it appears that the O.P/developer has been empowered to sell and transfer the flats of his allocation and there is also reflection in the Development Agreement that a Power of Attorney will be executed in favour of the O.P developer empowering him to transfer of his allocation to the intending purchasers. Even though copy of the Power of Attorney has not been filed before this Commission by the complainants but the agreement for sale dated 12.3.2020 reveals that a Power of Attorney dated 8.2.2016 was registered in favour of the developer. It has been submitted by the Ld. Advocate appearing for the complainants that the O.P/developer was empowered to execute the deed of conveyance in favour of the complainants and the presence of the owner is not required. It may be pertinent to point out that owners have not been made party in this case .

            So far as the 2 agreements executed between the complainants and the O.P/developer, it is evident that by agreement dated 18.9.2016 entire second floor was purchased which consisted of only one flat. However, in the subsequent agreement dated 12.3.2020, there finds reflection of second floor consisting of 2 flats  measuring 450 sq.ft. In the said Agreement dated 12.3.2020 there is specific reflection in the Memo of consideration that a sum of Rs.36 lac has been paid by the complainants out of total consideration of Rs. 37,50,000/-. The complainants have also filed money receipts showing payment of the said sum to the O.P/developer. In such a situation, since according to the complainants neither the deed has been executed nor the possession letter has been handed over, in the absence of any contrary material before this Commission, the complainants are entitled to the relief as prayed for. They are also entitled to the compensation as they have to bear the registration fee as per the present market value. So, a sum of Rs. 40,000/- would be sufficient and a further sum of Rs. 10,000/- as litigation cost.

Hence,

            ORDERED

That CC/91/2021 is allowed exparte.

The O.P is directed to execute and register the deed of conveyance in favour of the complainants as per Agreement dated 12.3.2020  within three months from this date on payment of balance consideration price of Rs. 1,50,000/- by the complainant. O.P. is further directed to hand over the possession letter within the aforesaid period of 3 (months) months.

O.P is also directed to pay compensation of Rs.40,000/- and litigation cost of Rs.10,000/- to the complainants within the aforementioned period of 3(three) months.