West Bengal

Hooghly

CC/35/2019

Shri Soumen Choudhury - Complainant(s)

Versus

Shri Srijit Banerjee - Opp.Party(s)

03 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, HOOGHLY
CC OF 2021
PETITIONER
VERS
OPPOSITE PARTY
 
Complaint Case No. CC/35/2019
( Date of Filing : 12 Mar 2019 )
 
1. Shri Soumen Choudhury
76A G.T Road, P.O & P.S - Uttarpara, 712258
HOOGHLY
WEST BENGAL
...........Complainant(s)
Versus
1. Shri Srijit Banerjee
F no 303 4th floo.Or 16 sibnarayan Road, P
HOOGHLY
WEST BENGAL
2. Sri Sunil Singha
42 Banerjee Psrs street, P.O & P.S - Uttarpara, 712258
Hooghly
WEST BENGAL
3. Sri Anil Singha
42 Banerjee Psrs street, P.O & P.S - Uttarpara, 712258
Hooghly
WEST BENGAL
4. Samir Singha
42 Banerjee Psrs street, P.O & P.S - Uttarpara, 712258
Hooghly
WEST BENGAL
5. Smt Sunita Singha
12 Panchu Dhobani Lane, 700007
kolkata
WEST BENGAL
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Debasish Bandyopadhyay PRESIDENT
 HON'BLE MRS. Minakshi Chakraborty MEMBER
 HON'BLE MR. Debasis Bhattacharya MEMBER
 
PRESENT:
 
Dated : 03 Mar 2023
Final Order / Judgement

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

 

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that OP no.2,3,4 and 5, they by an agreement entered into a Developer’s agreement that the op no.1 on the terms and conditions mentioned in the said agreement as the OP no.2 – 5 being the owner of all that area of land measuring 2 cottah equivalent to 0.029 of an acre comp rised in R.S. Plot no.3734 and 3735 under Khatian no.1564 corresponding L.R. Plot no.4621 and 4422 under L.R. Khatian no.4626 lying within Mouza Uttarpara, J.L No.12, Municipal Holding no. old 42, new 122, Banerjee Para Street, Ward no.16 under Uttarpara – Kotrung Municipality, P.S-Uttarpara Dist-Hooghly particulars of which mentioned in the schedule mentioned and the OP no.1`declared to sell the allocated flat of OP no.1 and also allocated shop, garage to be constructed on the schedule mentioned property and the complainant herein on good faith and bonafide belief that the OP no.1 is a bonafide developer and also there is a developer agreement between OP no.2-5 and OP no.1 but in spite of making demand of the said developer agreement, the Op no.1 never supplied a copy of developer agreement to the petitioner or any other purchaser of the said building and the petitioner was asked to make payment of Rs.3 lacs for the purpose of execution of agreement for sale and assured to handover all relevant documents such as copy of deed, settlement record, sanction plan, L.R record, Municipal tax receipt and collected documents but the Op no.1 assured that he possessed all the relevant documents but did not handover a copy of any documents to the petitioner.  So, the petitioner considering the bonafide of OP no.1 made payment of consideration asked by the Op no.1 being Rs.3 lacs and the petitioner on good faith paid the said amount for the purpose of purchasing one shop room on the ground floor eastern side measuring 9’3”X 12’7” equivalent to 129 sq. ft. covered area and 142 sq.ft super built up area with marble floor together with proportionate undivided share of the land underneath of the four storied building of the schedule mentioned and particulars of the shop room given in the schedule mentioned.

The Op no.1 also conveyed that the owner being the OP no.2-5, they by registered agreement appointed the OP no.1  having its office at 10, N.S Road, P.O & P.S-Uttarpara, Dist-Hooghly and the complainant on good faith and bonafide belief and being assured by the OP no.1 to hand over relevant documents such as sanctioned plan, developer’s agreement, power of Attorney but actually the OP no.1 never handed over the copy of any document as required for the purpose of completion of registration of the schedule mentioned and the petitioner has grocery business and somehow maintained the family and for the purpose of shifting business, purchased the said shop room and the petitioner asked the OP no.1 for giving the relevant documents as he like to make arrangement for completion of registration of the sale deed of the schedule shop room but the op no.1 refused to hand over any document and asked that op no.1 possessed all relevant documents and he would make all arrangement for registration of deed, preparation of plan and nothing to be worried.  Only the petitioner shall have to supply PAN card no. and w copies of photo and the op no.1 for the purpose of registration made assessment of the market value of the shop room for completion of registration and asked the petitioner that the assessed value is Rs.7,74,000/- is to be paid and registration shall be completed through their appointed Advocate and no other Advocate will be allowed.  The OP no.1 also asked for payment of charges of preparation of plan to the Draftsman and the plan is annexed with the deed.  And the petitioner for conformation regarding the said matter of completion of sale and Op no.1 asked 9% of the total assessed value as the cost of the deed is to be paid and the petitioner taking information of other purchaser of flat owners came to confirm that the OP no.1 has taken the 9% as completion of registration charges and preparation of Plan charges is to be paid separately and Op no.1 has taken all responsibility for completion of sale deed and the petitioner on good faith went to the registration office at Serampore as per instruction of the OP no.1 and executed one sale deed of the shop room on 4th February, 2015 duly registered being no.799 for the year 2015 of A.D.S.R. Office Serampore and the petitioner after taking delivery of original deed from the OP no.1 on 12thFebruary, 2015 found that the OP no.1 executed the deed only on behalf of the OP no.2-5 as Constituted Attorney and self.  Though the OP no.1 is not the owner of the Ka schedule land and the signature as “SELF” is totally illegal because the OP no.1 was not a party to the Deed and there is no mentioning of the status of OP i.e., name, father’s name company’s name and other particulars but only found that in the description of Kha schedule in the sale deed being no.799 of 2015 mentioned that the “construction on Ka schedule of G+3 storied building of holding no. old 42, new 122, Banerjee Para Street, Ward no.16 in sanctioned plan.  That the particulars of the same are given in the schedule mentioned below and the petitioner is filing a photocopy of the said purchase deed for the consideration of this office.

The petitioner on good faith went to the municipal office for mutation of his name in the assessment register of the Uttarpara-Kotrung Municipali8ty in respect to the purchase of shoproom but the municipality refused to give any application form for mutation to the petitioner on saying that the construction has been taken without any sanction of building plan.  So, no mutation can be granted and the petitioner alongwith other purchaser of the said building went to the OP no.1 and asked the entire fraudulent things and matter which has been done by the Op no.1.  He has not taken any sanction of building plan from the municipality and the entire construction made of G+3 building is without any sanction plan and have committed an offence of cheating and the OPno.1 believing the petitioner and others that he has all relevant documents such as title deeds, L.R Parcha, sanctioned plan, power of attorney, agreement and also informed that the municipality refused to hand over any mutation application on the basis of deed that there is no sanctioned plan and mutation cannot be granted the entire construction is illegal and invalid.  Besides that the sale deed executed also is not legal, valid and the sale deed being no.799 of 2015 is void. Firstly in the sale deed OP no.1 has not joined as a vendor or conforming party on behalf of his firm and also he did not sanction any deed as a developer.  Secondly there is no mentioning of no. of sanction planand date and bythe impugned deed actually the entire right, title, interest of the shop room has not been transferred for non-joining of OP no.1as a party on behalf of the firm.  Thirdly, the OP no.1 also made fraud practice upon the petitioner on mentioning in the schedule of the said purchase deed being the schedule mentioned. Lastly taking the advantages of making payment of entire consideration of Rs.3 lacs, the OP no.1 has taken extra charges i.e. total 9% of the purchase assessed by the A.D.S.R office, Serampore being Rs.7,74,000/- and for the purpose of registration stamp duty required Rs.46,460/- and for registration fees Rs.8503/-  including E-fee.  That is the actual cost.  It may be taken into consideration that the drafting charges, type charges and miscellaneous fees but the act of the developer for taking the excess amount is amounting to extortion and is a criminal offence and has taken full advantages of the simplicity of the petitioner who already made payment of the total amount and became under the clutch of the OP no.1 and this petitioner is a liberty to file criminal case but total relief will not get for which the petitioner has come to this Consumer Disputes Redressal Forum for proper remedy.

The petitioner and other flat owners made complaint to the Chairman of the Municipality in writing on 12.11.2016 for the purpose of mutation as the mutation was not granted.  So the Chairman by letter asked the petitioner and others to attend a meeting and accordingly the petitioner and others went to the office of the Chairman and it was lastly informed verbally that the matter is to be informed subsequently and the complaint was made on 12.11.2016.  Subsequently petitioner went to municipal office several times but the petitioner was not entertained by the municipality and completely asked that no sanction plan, no mutation and entire step is to be taken and entire responsibility is taken by the OP no.1 who assured to comply the request of Chairman.  But no response for a past considerable period in spite of repeated request made on behalf of the petitioner and others also.

The petitioner lastly through their Advocate by registered letter dt. 24.08.2018 duly registered on 29.08.2018 addressing the OP no.1 informed the illegal act committed by the OP no.1 and without the mutation of name of the petitioner in respect to the shop room, no trade license for any other license will be granted by any authority and actually purchasing the shop room now become useless so long sanctioned plan is not made and actually sale deed executed by all that is the developer and owner being OP no.1-5 and the petitioner taking loan purchased the shop room but unfortunately the OP did not pay any interest for taking further space.  The registered letter which was given to the OP no.1 on 24.08.18 registered on 29.08.2018 duly accepted by the OP no.1 on 31.08.18 and by which the op no.1 was requested to handover all relevant documents and executed further valid deed in respect to the property in schedule mentioned and before execution of registration to hand over documents to satisfy the petitioner and alsomade request totake sanction of building planand op no.1 accepted the notice on 31.08.2018 but has not given any reply and alsohas not performed his dutyand the acts of the opposite party is illegal, fraudulent, extortion and cannot be supported legally.

            Complainant filed the complaint petition praying direction upon the opposite party no. 1 to execute and register the proper  instrument of transfer schedule mentioned flat at the cost of the op no. 1 in favour of complainant after observing all formalities that is taking sanction of building plan from the municipality and for the purpose of completion and registration, proper stamps duty and registration fees and all other charges within a specified reasonable time and in failure the complainant may be permitted to execute and register proper instrument of scheduled mentioned shop room through the Forum and to pay a sum of Rs. 1 lakh for the purpose of harassing causing mental agony and to pay a sum of Rs. 54180/- being the 7% of the total assessed value of Rs. 7,74,000/- taken by op no. 1 by extortion and together with interest and to pay a sum of Rs. 50,000/- for noncompliance of the request made through Advocate’s letter dt.24.8.2018 registered on 29.8.2018 and to pay a sum of Rs. 50,000/- and to pass necessary order as deem fit and proper.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that originally the property belonged to the father of the opposite party nos. 2 to 5 and during his life time he transferred his favour of the opposite party nos. 2 and 4 by registered deed of gift dt. 16.2.1999 and after bequeathing the property by the registered deed of gift the opposite party nos. 2 and 4 became the owner of the property and thereafter the opposite party nos. 2 and 4 filed a T.S. being no. 31/2000 before the Civil Judge (Jr. Divn.) 1st Court, Serampore for eviction of license against the opposite party no. 3 and after getting the summon the opposite party no. 3 entered into appearance and filed written statement and after hearing both sides the ld. Court has been pleased to pass an order and decreed the suit and thereafter getting the judgement and decree the opposite party no. 3 filed an appeal being T.A. no. 45/2004 before the District Judge, Hooghly and thereafter the appeal transferred to Addl. District Judge cum Fast Track First Court, Hooghly and after hearing the both sides the ld. Court has been pleased to pass an order remanded back the appeal before the Trial Court and after passing the order of remand back the suit has already been remand back to the trial court and the plaintiff in the trial court filed a petition under order 3 Rule 1 read with Section 151 C.P.C. and the ld. Court has been pleased to pass an order dismissing the suit for non prosecution and thereafter the opposite party nos. 3 and 5 executed a power of attorney in favour of the opposite party no. 1 dt. 24.8.2011 and they entered into an agreement on 19.11.2010 and thereafter the opposite party no. 1 duly stationed the plan and duly mutated and raised construction as per sanction plan and thereafter opposite party no. 1 duly registered the deed in respect of flats/ shops and in favour of the intending purchasers. Thus the complaint is liable to be dismissed with cost.

The opposite party Nos. 2 and 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the petitioner no. 1 persuaded the OP no. 2 & 4 and influenced this op that he is a promoter in the locality and likes to develop schedule mentioned property of the complainant and also agreed to hand over one complete 600 sq. ft. flat to op no. 2 and one complete flat measuring 650 sq. ft. area to this op no.4 and also agreed to pay Rs.50,000/- in addition of the flat to the op no.2, but ultimately has failed to pay the said amount as well as failed to deliver the possession of the flat measuring an area 600 sq. dt. And instead of that only has given a flat measuring Carpet area 360 sq.ft. being covered area 415 sq.ft. onlyand it was agreed that for the less area flat the price @Rs.3000/- per sq. ft. is to be paid that is for the leas area OP no.1 is to pay Rs. 5,40,000/- to this OP no.2, but the area for which this op agreed to execute the developer agreement that is 600 sq. ft. , but 360 sq. ft. flat being the half area more or less and will not serve the purpose of accommodation of OP no.2. and the op no.1 developer agreed to handover the complete flat measuring 650 sq      .ft., but instead of said area has given 530 sq. ft. and the op no.1 for the less area adjusted from the ground floor, but that was not sufficient.  So, this op no.4 had to purchase some area for which Rs.1,40,000/- was paid to op no.1 unnecessarily in the name of the wife of this op no.4 and has given the less area not the contractual area.

The developer agreement was executed by this op no.2 and 4 in good faith on 20.11.10 and the op no.1 represented as a proprietor of Annapurna Reality and the said agreement is not at all registered and also one general power of Attorney was executed by op no.2 and 4 on 29.7.11 duly certified by Notary conferring some powers and the op no.1 has mis-utilised the said developer agreement as well as the power of attorney and the op no.3 and 5 is completely a third party and they never acquired any right, title and interest in respect to the property in schedule and this op no.1 with some malafide intention and also with the intention to make fraud upon this OPs and prospective purchasers inserted the name of op no.3 and 5 without the knowledge and consent of this ops and in the developer agreement this op no.2 and 4 has been mentioned as owner as well as in the power-of-attorney the status of this op has been shown as owner of the property, but suppressing the said facts the op no.1 collusively managed to another developer agreement and power of attorney which has been manufactured by OP no.1 in collusion with 3 and 5 for illegal gain.  That actually the op no.1 has made fraud practice upon this op and also fraudulently has manufactured documents for illegal gain and it was not known to this op that the op no.1 without taking any sanction of building plan made construction of four storied building demolishing the old one and the said matter subsequently came to the notice when the petitioner and some other purchasers of different  flats applied for mutation of name then from the municipality came to learn regarding the fraudulent act of the op no.1 for fraud practice upon the ops as well as the municipality and others and the entire construction has been done illegally and said matter was brought to the notice of the chairman who is a party to this complaint and the chairman called this op, and others but conveyed his inability of taking any steps against the fraudulent act of the op no.1, it is best known to the chairman of Uttarpara-Kotrung municipality and this op no.2 and 4 acted on good faith but all illegal act made by the op no.1 behind the back and knowledge of the op and ;this op is going to take the legal action against the op no.1 and the op no.1 has acted on the basisof unregistered power of attorney and himself made fraud practice upon the complainant and others and op no.2 and 4 completely unnecessary party in the present case and has no responsibility regarding the matter of all fraudulent acts of the op no.1 and their names is required to be strike out from the cause Title of the complaint.

            The opposite party Nos. 3 and 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that originally the property belonged to the father of the opposite party nos. 2 to 5 and during his life time he transferred his favour of the opposite party nos. 2 and 4 by registered deed of gift dt. 16.2.1999 and after bequeathing the property by the registered deed of gift the opposite party nos. 2 and 4 became the owner of the property and thereafter the opposite party nos. 2 and 4 filed a T.S. being no. 31/2000 before the Civil Judge (Jr. Divn.) 1st Court, Serampore for eviction of license against the opposite party no. 3 and after getting the summon the opposite party no. 3 entered into appearance and filed written statement and after hearing both sides the ld. Court has been pleased to pass an order and decreed the suit and thereafter getting the judgement and decree the opposite party no. 3 filed an appeal being T.A. no. 45/2004 before the District Judge, Hooghly and thereafter the appeal transferred to Addl. District Judge cum Fast Track First Court, Hooghly and after hearing the both sides the ld. Court has been pleased to pass an order remanded back the appeal before the Trial Court and after passing the order of remand back the suit has already been remand back to the trial court and the plaintiff in the trial court filed a petition under order 3 Rule 1 read with Section 151 C.P.C. and the ld. Court has been pleased to pass an order dismissing the suit for non prosecution and thereafter the opposite party nos. 3 and 5 executed a power of attorney in favour of the opposite party no. 1 dt. 24.8.2011 and they entered into an agreement on 19.11.2010. Thus the complaint is liable to be dismissed with cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

  1. Whether the complainant is the consumer of the opposite parties or not?
  2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
  3. Is there any cause of action for filing this case by the complainant?
  4. Whether there is any deficiency of service on the part of the opposite parties?
  5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed separate evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant and ops are residents of Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

  1. It is admitted fact that father of the op nos. 2 to 5 was the original owner of the suit property.
  2. It is also admitted fact that the father of the op nos. 2 to 5 transferred the property to op nos. 2 to 4.
  3. There is no controversy over the issue that the said property was transferred by way of executing a deed of gift dt. 16.2.1999 and thereafter the op nos. 2 to 4 became the owner of the suit property.
  4. There is no dispute over the issue that the op nos. 2 to 4 had filed a civil suit being no. Title suit no. 31/2000 before the ld. Civil Judge (Jr. Division) 1st Court, Serampore for eviction of license against the op no. 3.
  5. It is admitted fact that op no. 3 after getting summon contested the said case by filing written statement.
  6. It is also admitted fact that after hearing both sides ld. Trial Court has been pleased to decreed the said suit.
  7. There is no controversy over the issue that thereafter the op no. 3 had filed an appeal being no. T.A. 45 of 2004 before the Ld. District Judge, Hooghly.
  8. There is no dispute over the issue that thereafter the said appeal was transferred to the Court of Additional District Judge cum First Tract Court, Hooghly.        
  9. It is admitted fact that ld. Judge of Additional District Judge cum First Tract Court, Hooghly thereafter remanded back the said suit to the Trial Court.
  10. It is also admitted fact that after the case is remanded back to the Trial Court, the plaintiff who are the op nos. 2 to 4 of this Complaint case had filed an application under Order 3 Rule 1 read with Sec. 151 C.P.C.
  11. There is no controversy over the issue that the above noted suit was subsequently dismissed for non prosecution.
  12. There is no dispute over the issue that subsequently the op nos. 3 and 5 of this complaint case executed a power of attorney in favour of op no. 1 on 24.8.2011.
  13. It is admitted fact that thereafter the op nos. 3 and 5 entered into an agreement with op no. 1 on 19.11.2010.
  14. It is also admitted fact that the op no. 1 thereafter developed the said property and constructed multistoried building thereon.
  15. There is no controversy over the issue that the complainant intended to purchase a shop room measuring about 129 sq.ft. covered area and 142 sq.ft. super built up area in the said property and also paid consideration money.
  16. There is no dispute over the issue that the op no. 1 inspite of receiving the consideration money had not executed and registered a deed of conveyance in favour of the complainant.
  17. It is admitted fact that the complainant and op no. 1 entered into an agreement.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant adopted the plea that inspite of payment of consideration money to the op no. 1 no deed of conveyance has been executed and registered in respect of the schedule mentioned shop room and it is a gross negligence and deficiency of service on the part of the ops. But the ops adopted the defence plea that entire consideration money has not been paid and for that reason deed of conveyance has not been executed and registered.

            For the purpose of arriving at just and proper decision in respect of above noted difference and apple of discord between the parties this District Commission after going through the evidence on record finds that the complainant has paid consideration money to the op no. 1 and inspite of receiving the consideration money the op no. 1 has not executed and registered the deed of conveyance which is undoubtly a clear instance of negligence and gross deficiency of service. It is settled principle of law that if the promoter/ developer fails to execute and register the deed of conveyance within stipulated period of time, he is duty bound to refund the amount deposited by the consumer with interest. This legal principle has been observed by the Hon’ble Apex Court and it is reported in 2022 (2) CPR page.1.

          Thus, it is crystal clear that the complainant has proved his case in respect of all the points of consideration adopted in this case and so he is entitled to get relief which he has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 35 of 2019 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get an order directing the op no. 1 to execute and register the deed of conveyance in respect of the schedule mentioned shop room by complying all legal formalities of the complaint petition and to hand over possession of the same with written occupancy certificate within 45 days from the date of this judgement otherwise op no. 1 shall refund the consideration money of Rs. 7,74,000/- along with interest @ 9% to the complainant within 45 days from the date of this order. Failing which complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party no. 1 is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.

 
 
[HON'BLE MR. Debasish Bandyopadhyay]
PRESIDENT
 
 
[HON'BLE MRS. Minakshi Chakraborty]
MEMBER
 
 
[HON'BLE MR. Debasis Bhattacharya]
MEMBER
 

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