HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This consumer complaint is filed under section 17 of the Consumer Protection Act, 1986 by the complainant Md. Farook against the opposite parties on the allegation of deficiency in service on their part.

2. The case of the complainant in short is that Sk. Sajahan, since deceased as a vendor and Abdul Jabbar, opposite party No. 5 as the developer had entered into an agreement for sale with the complainant for sale of one self contained flat measuring an area of 1509 sq. ft. more or less at the 5^th floor and car parking space on the ground floor of the building constructed at premises No. 38, Dent Mission Road, P.S. Ekbalpur, Kolkata – 700 023 as described in the schedule of petition of complaint for a total consideration of Rs.39,23,400/- for the flat and Rs.04,00,000/- for the car parking space, in total Rs.43,23,400/-.

3. Further case of the complainant is that the complainant paid a sum of Rs. 21,61,700/- towards earnest money at the time of the execution of the agreement for sale. The vendor, Sk. Sajahan died living behind the opposite parties No. 1 to 4 as his legal heirs and legal representatives. Since after execution of the agreement, the opposite parties are required to complete the flat and car parking space and hand over the possession to the complainant and to execute and register the deed of sale on receiving the balance consideration money. In spite of several requests and persuasions by the complainant and even after serving of notice through the complainant’s Advocate, the opposite parties have failed and neglected to complete the flat and hand over the possession of the same and execute and register the deed of sale. So, the complainant through his Learned Advocate Mr. A.S. Md. Musa sent a notice to the opposite parties requesting them to complete the schedule mentioned flat and hand over the possession and execute and register the deed of sale on receiving the balance consideration money within 15 days from the date of receipt of the letter. But to no effect. So, the present complaint has been filed praying to direct the opposite parties to hand over the possession of flat as mentioned in the schedule of the petition of complaint and to execute and register the deed of conveyance in favour of the complainant on receiving the balance consideration money and to pay a sum of Rs.2,00,000/- (Rupees two lakh) only towards compensation.

4. To prove the case, the complainant has filed copy of agreement for sale dated 11.10.2011 executed between Sk. Sajahan, Abdul Jabbar and the complainant, copy of development agreement and copy of power of attorney.

5. Notices were duly served upon the opposite parties but the opposite parties did not enter appearance in this case and did not contest the case. As such, the case was heard ex parte against the opposite parties.

6. So, only the point for determination in this case is that :-

Whether the complainant is entitled to get the relief as prayed for?

7. Decisions with reasons :-

In support of his claim the complainant has filed evidence on affidavit. From the agreement for sale it appears to usthat the complainant and Sk. Sajahan, the deceased as vendor and Sk. Abdul Jabbar as the developer entered into an agreement for sale with the complainant, one self contained flat measuring an area of 1509 sq. ft. or less at the 5^th floor and the car parking space at the ground floor of the building constructed at premises No. 38, Dent Mission Road, P.S. Ekbalpur, Kolkata – 700 023 at a consideration of Rs.43,23,400/- in total. It also appears from the said agreement for sale dated 11.10.2011 that the complainant has paid a total sum of Rs.21,61,700/- to the opposite party No. 5, the developer out of the said total consideration of Rs.43,23,400/-. It also appears from the said agreement for sale dated 11.10.2011 that Sk. Abdul Jabbar had issued money receipt in favour of the said complainant Md. Farook. From the said agreement for sale it also appears to us that after execution of the agreement, the opposite party No.5 is required to complete the schedule mentioned flat and car parking space as mentioned in the 9^th schedule of page No. 31 of the said agreement for sale and to hand over the possession of the flat to the complainant. But according to the complainant, he has paid a sum of Rs.21,61,700/- towards earnest money out of the total consideration money of Rs.43,23,400/- and the complainant is always ready and willing to pay the balance amount but the complainant has neither been delivered the possession nor has the deed of conveyance been executed in his favour.

8. From the record it appears to us that there is absolutely no contrary to material on record to counter or rebut the claim as made by the complainant. Therefore, we are inclined to hold that the complainant has been able to prove his case by oral and documentary evidence. So, the complainant is entitled to get the possession of the case flat as mentioned in the agreement for sale and for execution of the deed of conveyance in his favour on payment of balance consideration money of Rs.21,61,700/-. However, in the given facts and situation of this case specially a huge amount is still not paid by the complainant, we find no justification to allow compensation as prayed for though he is entitled to the litigation cost as he was compelled to file the case.

Hence ordered that consumer case being No. CC/296/2018 is allowed ex parte.

The opposite parties are directed to deliver the possession of the flat as mentioned in the agreement for sale to the complainant and to execute and register the deed of conveyance in his favour within 4 months from the date of this order subject to payment of balance consideration amount of Rs.21,61,700/- by the complainant. The cost of registration shall be borne by the complainant. The opposite parties are further directed to pay Rs.10,000/- as litigation cost to the complainant within the aforesaid period of 4 months.

9. Let a copy of this order be served to both the parties free of cost.