FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

The complainant Sri Pranb Ghosal has filed the instant petition of complaint U/S12 of The C.P. Act, 1986.

The fact of the case in a nutshell is that one Nagendra Nath Das and Rabindra Nath Das were the joint owners of the A schedule property as described in the schedule ‘A’ of the petition of complaint. They have entered into an agreement for development of the A schedule property with the OP-1/developer namely Sri Siddharath Majumdar on 01.03.1991 for the purpose of development and construction of high-rise building in a schedule property. 

It is further stated that the OP-1 after getting the sanctioned building plan for construction of the building on a schedule property he approached the complainant to purchase a flat in the newly constructed building. The complainant became agreed and entered into an agreement for sale with the OP-1/developer for purchasing a flat measuring about 700 sq. ft. being flat No. A on the 2^nd floor of the proposed building together with undivided proportionate share of interest of land of A schedule property along with common amenities and facilities attached therewith at a consideration of Rs. 3,40,000/- only in total. The said flat in question has been described in the schedule B of petition of complaint. The complainant entered into agreement for sale on 09.12.1994 with the OP-1 and the land owners.

It is further stated that one of the land owners Khagendra Nath Das died intested as bachelor leaving behind his two brother i.e. Nagendra Nath Das and Rabindra Nath Das as his legal heirs & successors. After demise of Khagendra Nath Das, Nagendra Nath Das and Rabindra Nath Das became the joint owners of the entire ‘A’ schedule property. It is further stated by the complainant that as per agreement for sale dated  19.12.1994 he paid Rs. 3,40,000/-  to the OP-1 and the three owners i.e. Khagendra Nath Das, Nagendra Nath Das and Rabindra Nath Das on several dates,  by cash and cheque the lastly he paid Rs. 1,00,000/- by cash on 06.01.1997. The complainant  further stated that the OP-1 and all the three owners named above also demanded Rs. 25,000/- more for additional cost. So, the complainant paid Rs.  3,65,000/-  in total to the OP-1 and owners  towards the consideration money of the flat in question. It is further stated by the complainant that during construction of the building in question he was posted at Patna subsequently, he was transferred to Kolkata on  25.06.1996.  He alleged that he was agreed by the OP-1 and owners of the land that they will hand over the flat in question to the complainant within 02 years  from the date of agreement for sale i.e. on and from  09.12.1994 thereafter, the OP-1 gave the temporary possession  to the complainant  of a portion of the first floor of the building in question  to keep his entire house hold articles shifted from Patna as at that time the OP-1 told him that the flat in question booked by him has not yet been completed. In the mean time, Nagendra Nath Das died intested leaving behind his wife and two sons as legal heirs and successors and Rabindra Nath Das died interested leaving behind his wife as legal heirs and successors. All of them  have been brought into the case and cause title of this petition of compliant as proforma OP Nos.  2 to 5.

The complainant stated that he is always ready to perform his part for registration of the deed of conveyance  but the OP-1 developer intentionally neglected him and did not pay any heed to his repeated request to handover the possession and registration and execution of the deed of conveyance.

Hence, the instant case is filed by the complainant by a prayer to direct the OPs to execute and register deed of conveyance on the basis of agreement for sale dated 09.12.1994 described  in the schedule  ‘B’ of the petition of complaint  and also prayed  for giving direction  to the OPs to pay a sum of Rs.  5,00,000/-  as  compensation along with litigation cost of Rs. 1,00,000/-.

The OPs 1 and 4  have contested the case by filing separate WV,. The OP-1 in his WV has contested the case by denying all the materials allegations levelled against him.

The case do run ex parte against OPs-2, 3 and 5.

It is the case of the OP-1 that the case is not maintainable. It is harassing one and is also bad for mis-joinder of necessary parties.

It is further case of the OP that the complainant entered into agreement for sale dated  09.12.1994 with him at a consideration of Rs. 3,40,000/-  for the flat in question as mentioned in the schedule  “B” of  the petition  of complaint but subsequently, he requested to do some extra work  and for that reason the OP-1 demanded  a further payment of Rs. 1,00,000/-  from the complainant  out of which the complainant paid only Rs. 25,000/-  and 75,000/-  has not yet been paid.  Apart from that in due time within 02 years from the date for agreement the first floor construction has been completed more or less and the possession of the flat in first floor was handed over to the complainant against the schedule flat in question on 2^nd floor of the said premises under agreement with the complainant in June, 1996 and the complainant accepted the possession of the said flat without having any grievance.

The OP further stated that he is always ready and willing for registration  of deed of sale in favour of the complainant and he has no grievance and demand against the complainant but his power of attorney has been revoked long back as such he has no responsibility /authority for execution deed of sale on behalf of the land owners. The OP-1 further stated that the complainant was kept mum over the issue for a period of long 22 years and all on a sudden he has filed the case. however, though the OP-1 has denied the claim of the complainant but he prayed  that if this forum after consideration of entire matter will be pleased to direct the OP-1 to execute and registration of the deed of sale in respect of the flat in first floor he is always ready to do so otherwise the case is liable to be dismissed with cost.

The OP-4 in his WV also denied the materials of the petition of complaint and stated that the instant case is barred u/s 12 (a) of WB building Act 1993.   It is admitted by the OP-4 in his WV that Khagendra Nath Das and Nagendra Nath Das were the predecessor in interest in respect of ‘A’ schedule property of OPs 2 to 5 and the entered into a development  agreement with the OP1 on 01.03.1991.

It is further stated by the OP-4 in his WV that the present complainant being a plaintiff has instituted a suit for specific performance of contract against  and since deceased Nagendra Nath Das and Rabindra Nath Das and the OP which is still pending before the Ld. 5^th Court Civil (Sr. Div) Alipore being title suit no. 191/1998. During the pendency of that suit the predecessor interest of OP-2 to 4 was demised and the legal heirs were not substituted within time as a result, the suit was abated.  It is further stated by the OP-4 that the flat in question is situated within the allocated portion of owner so the OP-1 has no right to enter into an agreement for sale with the complainant and the complainant has no cause of action to file the case. Thus the case is liable to be dismissed with cost.

In view of the above stated pleadings, following issues are framed.

1. Is the case maintainable in its present form & in law?
2. Is the complainant a consumer within the ambit of CP Act, 1986?
3. Is there any deficiency in service on the part of the OPs to this case?

5.  Is the complainant entitled to get relief as prayed for?

6. To what other relief or reliefs is the complainant entitled to get?

Decision with reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.

On a close scrutiny of the materials as well as evidence on record and position of law it is revealed that this Forum has got the jurisdiction both pecuniary and territorial to try this case and the case is well within the ambit of law.

It is the admitted fact that the complainant entered into an agreement for sale with the OP-1 dated 09.12.1994 for purchasing a flat being Flat No.-A, measuring about 700 sq. ft. in the 2^nd floor of the proposed building together with undivided proportionate of share or interest of land of the A schedule property along with all common amenities and facilities attached therewith at a total consideration of Rs.3,40,000/-.  It is admitted fact that the complainant paid the entire consideration amount of Rs.340000/- and he also paid Rs.25,000/- more as per demand of the OP-1 and the then owners  on several dates by cash and cheque.  From the documents as submitted by the complainant it is found that he paid Rs.1,00,000/- on 19.10.1994 by cash, Rs.49,000/- on 17.11.1994 by cheque, Rs.15,000/- on 13.07.1995 by cash, Rs.2,90,000/- on 25.09.1995 by cheque and Rs.1,00,000/- on 06.02.1997 by cash (Annexure B series) and the OP-1 received the amount mentioned above by issuing money receipt.  So from the discussions made above it is crystal clear that within the ambit of the provision of the C.P. Act, 1986 the complainant is / was a consumer under the OP members and the OP members are the service provider.

It is alleged by the OP-1 in his WV and also in his BNA that after transferring at Kolkata from Patna he accommodate the possession of a flat to the complainant situated of the 1^st floor in the alleged building against the scheduled flat in the 2^nd floor in the month of June, 1996 and the complainant was agreed to accept the same and he is possession of the said flat.  But he kept silence in respect of registration of the said flat in 1^st floor.   In this context Ld. Advocate for the complainant argued that the complainant entered into an agreement with the other member in respect of purchasing the flat – A situated in the 2^nd floor of the alleged building on 09.12.1994 and he paid the entire consideration amount to the OP-1 in respect of the said flat in question then how he will be agreed to make the registration of the flat in the 1^st floor to which the OP-1 accommodate him on emergency when the transferred to Kolkata from Patna.  The OP-4 being the legal heirs of one Nagendra Nath Das the original owners of the land of the A schedule property since deceased argued that the OP-1 has no right to execute and register the deed of conveyance in favour of the complainant and he also argued that the flat A which is the subject matter of this case is situation in the allocated portion of the land owners so the OP-1 cannot register or execute the deed of conveyance to the complainant.  However, considering all the aspects it is revealed that the complainant paid the entire amount of consideration in respect of the flat in question (schedule B) situated in the 1^st floor of the A schedule property and also paid Rs.25,000/- more towards the extra work made in his flat.  It was agreed by the OP-1 in the agreement for sale that he will hand over the possession of the flat on question (B schedule property) and executed and register the deed on conveyance to the complainant within 2 years from the date of payment of the entire consideration money),  From the document it is found that from 18.10.1994 to 06.02.1997 the complainant paid the entire consideration amount to the OP-1 and other OP member so the OP-1 is bound to hand over the flat in question within 06.02.1999.  but fact remains that till this the OIP did not hand over the B schedule  flat to the complainant and execute and register the deed of conveyance to the complainant which amounts to gross negligence and deficiency in service and it caused immense mental paid and agony to the complainant from which the OPs should be liable to execute and register the deed of conveyance to the complainant also to pay compensation for harassment, negligence and mental paid and agony on their part.

In view of the discussion above it is held by this commission that the complainant could be able to prove his case beyond the shadow and to entire relief as prayed for.

All the pints are considered favourably to the complainant.

The case is properly stamped.

Hence,

ORDERED

that the case be and the same is decreed on contest against the OPs-1 and 4 and ex parte against OPs-2, 3, and 5 with cost.

The OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the B scheduled flat as mentioned in the petition of complaint within 45 days from the date of order and to give delivery of possession of the flat in question to the within 45 days from the date of order.

The OP members are further directed to pay Rs.50,000/- (Rupees Fifty thousand) only to the complainant either jointly or severally as compensation along with interest @ 9% interest p.a. for harassment, mental paid and  agony within 45 days from the date of order along with litigation cost of Rs. 10,000/-.

If the OP members failed to comply the decree within the stipulated period as mentioned above the complainant is at liberty to execute the decree as per law.

Let a copy of this order be handed over to the parties free of cost.