Judgment : Dt.12.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Gautam Prasad @ G. Prasad and Smt. Shila Debi alleging deficiency in service on the part of the opposite parties namely (1) Smt. Bulu Bhattacharjee, (2) Sri Subinoy Deb @ Sri Kajal Deb and (3) Sri Subimal Deb @ Sajal Deb.
Case of the Complainant in brief is that being desirous to have a residential flat they entered into an agreement for sale on 4.1.2011 in respect of a flat on eastern side of the ground floor of a multi-storied building to be constructed within a plot of land measuring about 4 cottah 2¾ chitaks within the district South 24 Parganas P.S.-Jadavpur, J.L.No.39, Mouza Arakpur under S.P.No.148, comprising C.S.Plot No.768 & 772, EP No.111 within the jurisdiction of Ward No.95 of KMC, local premises No.111, Bikramgarh Colony, P.O.-Jadavpur University, Kolkata-700 032, with the OP No.1/Developer who by virtue of a development agreement dt.15.12.2002 executed by and between him and predecessor in interest of the OP Nos. 2 & 3 and also by virtue of a power of attorney executed by the predecessor in interest of the OP Nos.2 & 3 on 1.9.2004, developed the said property by constructing a multi-storied building therein. Agreed consideration amount for the said flat was Rs.7,00,000/- out of which the Complainants have paid Rs.4,50,000/-. It is the allegation of the Complainants that in spite of making payment of a sum of Rs.4,50,000/- out of the total consideration Rs.7,00,000/- the OPs neither completed the construction work nor did deliver peaceful possession of the property in question. Execution and registration of deed of conveyance in respect of the said flat had not been done. The Complainants requested the OPs on several occasions for execution and registration of deed of conveyance but to no effect. Hence, the Complainant by filing the instant case has prayed for directions upon the OPs to execute and register the deed of conveyance, to pay a sum of Rs.5,95,000/- towards compensation and cost of litigation.
OPs contested the case and filed written version respectively.
The OP No.1 developer has filed written version denying and disputing all allegation stating inter alia that the Complainant, in respect of receipt regarding Rs.15,000/- forged her signature. She further stated that after death of their father the OP Nos.2 & 3 became land-owner and resisted the OP No.1 Developer to complete the construction work in the said premises and, therefore, she had no deficiency in providing service. Accordingly, the OP No.1 prays for dismissal of the instant case.
In their written version the OP Nos.2 & 3 / land-owners have denied the allegation and stated inter alia that they are in no way connected to the agreement for sale dt.4.1.2002 since their father died on 16.2.2006. It is further stated by the OP Nos.2 & 3 that the Complainants realized Rs.32,500/- from them on pretext of incomplete work of their flat allotted to them. The OP Nos.2 & 3prays for dismissal of this case.
Parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
Points for determination -
- Whether the OPs have deficiency in providing service.
- Whether the Complainants are entitled to get relief as prayed for.
Decision with reasons
Both points are taken up together for comprehensive discussion and decision. On perusal of documents on record, it appears that Dhirendra Chandra Deb was the owner of a piece of land which the OP No.1 agreed to develop by virtue of a Development Agreement dt.15.2.2002 and subsequently a power of attorney executed on 1.9.2004 in favour of the OP No.1 Developer. However, the said Dhirendra Chandra Dey died on 16.2.2006 and therefore the said power of attorney ceased to exist. It is the specific allegation of the Complainants that the OP No.1 did not complete the said flat in all respect and also did not execute and register the deed of conveyance. In this regard, it is the defence of OP No.1 that the OP Nos.2 & 3 did not allow her to complete the construction of the flat in question rather, resisted her to do so. However, it appears from the record that no such document have been filed before us wherefrom it would have been evident that the OP No.1 faced resistance from the OP Nos. 2 & 3 as regards the completion of the said flat. Therefore, non-performance of promised service definitely amounts to deficiency in service because as per agreement dt.4.1.2011 the OP No.1 was bound to complete the said construction and to register the deed of conveyance in favour of the Complainants.
As regards the statement of collecting of an amount of Rs.32,500/- by the Complainant (as made by the OP Nos.2 & 3) is not sustainable since no documentary evidence in support of such averments have been made. In her written version the OP No.1 has stated that she is ready and willing to execute the deed of conveyance in favour of the Complainants. Under such state of affair, we are inclined to allow this complaint and direct the OPs to execute the deed of conveyance in favour of the Complainant in respect of the flat being No.A4 on the ground floor at KMC premises No.111, Bikramgarh Colony, P.S.-Jadavpur, Kolkata-700 032 after receiving the balance amount of consideration.
Considering the circumstances, especially the outstanding amount of consideration, we are not inclined to pass any order as to compensation.
Since the OP compelled the Complainants to file the instant case the OP No.1 is liable to pay the cost which is assessed by as Rs.7,500/-.
In the result, the complaint succeeds.
Hence,
ordered
that CC/225/2017 is allowed in part on contest.
The opposite parties are directed to execute register the deed of conveyance in favour of the Complainant after receiving balance consideration amount within one month. The OPs are further directed to pay Rs.7,500/- towards cost of litigation failing which the entire amount will carry interest @ 9% p.a.
