Date of filing: 29/10/2018
Date of Judgement: 18/09/2020
Mrs. Sashi kala Basu, Hon’ble President
This complaint is filed by the complainant namely Bajrang Lal Agarwal under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties ( hereinafter referred as OPs ) namely (1) Srimati Anjali Chakraborty and (2) Joita Estate Private Limited alleging deficiency in service on their part.
Case of the complainant in short is that OP No.1 was the owner of the land measuring about 9.88 cottha situated at premises no. 132, Block – ‘G’ , New Alipore ,Kolkata together with structure thereon. OP No.2 is a promoter/developer. A development agreement dated 17.01.1992 was entered into between the OP No.1 and OP No.2 whereby OP No.2 was empowered to demolish the existing structure and constructed a multi-storied building. By an agreement of sale deed dated 18.07.1994 OPs agreed to sell the flat and car parking space described in schedule ‘B’ of the said agreement to the complainant at a total consideration of Rs. 8,60,000/- out of which Rs.5,10,000/- was to be paid to the developer towards cost of construction and Rs. 3,50,000/- was to be paid to the owner through the developer. Complainant has paid the entire sum of consideration to the OPs and after the construction of multi-storied building, possession of the flat and the car parking space has already been handed over to the complainant by OP No.2.So the complainant has been in possession of the flat and the car parking space and has been paying electric bill and municipal tax. But till today the deed of conveyance has not been executed by the OPs in favour of the complainant inspite of his repeated requests. So the present complaint has been filed by the complainant praying for directing the OPs to execute and register the deed of conveyance in respect of the property as described in schedule ‘B’ in favour of the complainant, to pay compensation of Rs.5,00,000/- for mental agony and for the cost of the proceedings.
On perusal of the record it appears that the OP No.2 has contested the case by filing the W.V. contending inter alia that he was entrusted to develop the property by OP No.1 and after the completion of the building as per the building plain sanctioned by Municipal Corporation, he has handed over possession of apartments to the respective flat owners including the complainant. OP No.1 the owner filed Civil Suit against him. OP No.1 being the owner is responsible to execute the deed of conveyance in favour of the complainant. OP No.2 being the developer cannot be held responsible for non-execution of deed of conveyance and thus he has prayed for dismissal of this case against him.
On perusal of the record it appears that the OPNo.1 did not take any step in spite of the service of notice and so vide order dated 07.02.2019, case was directed to be proceeded exparte against the OP No.1.
Complainant has annexed with the complaint, copy of Memorandum of Agreement entered between the parties, money receipts , electric bills , municipal tax receipts and the copy of the ration card.
During the course of the trial, complainant has filed affidavit in chief but no questionnaire was filed by OP No.2 and also neither any evidence was filed by OP No.2. So, ultimately the argument has been advanced by both the parties .They have also filed the written notes of argument.
So, the following points require determination :
- Whether there has been deficiency in service on the part of the Opposite Parties ?
- Whether complainant is entitled to the relief as prayed for?
Decision with reason :
Both the points are taken up together for discussion for the sake of brevity and convenience and to avoid repetition.
Complainant has claimed that by an agreement of sale dated 18.07.1994 entered into between him and the OPs, complainant agreed to purchase a flat and car parking space described in the schedule ‘B’ of the agreement at a total consideration of Rs. 8,60,000/-. It was agreed that the complainant would pay Rs. 5,10,000/- to the OP No.2 the developer and Rs. 3,50,000/- to the OP No.1 the owner, through developer. According to complainant, he has paid the entire consideration amount.
The claim of the complainant about the execution of the agreement dt, 18.07.1994 and that he has paid the entire consideration money, has not been disputed and denied by the contesting OP i.e. OP No.2.
It is also an admitted fact that OP No. 1 had entered into a development agreement with OP No.2 to raise multi-storied building after demolishing the existing structure and t after construction of the building, complainant has already been handed over the possession of flat and the car parking space as per agreement. Complainant’s name has been mutated in the Kolkata Municipal Corporation and he has been paying the municipal tax and electricity bill.
The only claim of the complainant is that the deed of conveyance has not been executed by the OPs in his favour OP no.2 has contended that the owner is liable to execute the deed and he cannot be held responsible for non-execution of the deed in favour of the complainant. OP No.2 has contended that there has been litigation between him and the OP No.1 OP no.1 had filed civil suit against him. But on a careful scrutiny of the agreement of sale dt. 18.07.1994, it appears that there is clear recital that the purchasers will pay to the developer the cost of stamp duty, registration charges etc for preparation, execution and registration of the sale deed. So it is true that the OP No.1 being the owner is liable to execute the deed but OP No.2 cannot absolve his responsibility. Similarly, any litigation or inter-se dispute between the land owner and the developer cannot defeat the right of a bonafide purchaser. So as admittedly deed of conveyance has not been executed in favour of the complainant, there has been deficiency in service on the part of the opposite parties and thus complainant is entitled to execution and registration of deed of conveyance in his favour. He is also entitled to the compensation, not only for harassment but also because he will have to pay the registration fee as per present market value.
Hence,
Ordered
CC/616/2018 is allowed on contest against OP No.2 and exparte against OP No.1. Opposite parties are directed to execute the deed of conveyance in favour of the complainant in respect of the flat and car parking space as per agreement dated 18.07.1994 within two months from this date. They are further directed to pay compensation of Rs. 50,000/- and litigation cost of Rs.10,000/- to the complainant within the aforesaid period of two months failing which the amount shall carry interest @8% p.a. till realisation.
