Date of filing: 28/08/2019
Date of Judgment: 31/01/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Gouri Sarkar under section 12 of the Consumer Protection Act, 1986 against opposite parties (referred as OPs hereinafter) namely (1) Smt. Bulu Bhattacharya (2) Sri Pran Krishna Giri and (3) Shri Debasish Roy alleging deficiency in rendering of service on the part of the OPs.
Case of the complainant in short is that O.P. No. 1 & 2 being the developer and O.P. No. 3 and his mother Nisha Roy (now deceased) being the owner entered into a development agreement to raise four storied building. Consequent to the said development agreement dated 06/05/2000 entered into between the opposite parties, O.P. No. 1 & 2 the developer, by an agreement for sale dated 21/10/2001 agreed to sell a self-contained flat measuring area of 550 sq. ft. described in the Schedule ‘B’ of the agreement at a total consideration price of Rs. 3,25,000/-. Complainant has paid the entire consideration price to O.P. 1 & 2 and the possession of the subject flat has also been handed over to the complainant in the year 2002. But the deed has not been executed and registered in favour of the complainant in spite of several request from the complainant. So the present complaint has been filed by the complainant praying for directing the opposite parties to execute and register deed of conveyance in respect of the flat, to pay a sum of Rs. 2,00,000/- as compensation and Rs. 15,000/- as litigation cost.
O.P. Nos. 1 & 2 have contested the case by filing the written version contending specifically that possession of the flat has already been delivered to the complainant and in spite of several request from their end complainant herself expressed her inability due to financial crises. However, they are still ready to execute the deed of conveyance in favour of the complainant. Since there is no deficiency on the part of the O.P. 1 & 2, they have prayed for dismissal of the case.
O.P. No. 3 has also filed the written version disputing and denying the allegation contending specifically that the complainant was aware that O.P. No. 3 and his mother being the owners had given no Power of Attorney to the developer to create any third party interest in the property. So the complainant entered into an agreement for sale with the developers in absence of the owners at her own risk and as such O.P. 3 has no legal or contractual obligation to execute and register sale deed in favour of the complainant.
During the course of the trial it appears after the complainant filed examination in chief on affidavit, O.P. Nos. 1 & 2 filed their questionnaires but no questionnaire was filed by O.P. No. 3. The record discloses O.P.s did not take any step since 23/02/2022. They neither filed any evidence. So the case was ultimately fixed for argument. At the time of argument, brief notes of argument has only been filed by the complainant but none of the O.P. took any step.
So the following points require determination:-
- Whether there has been any deficiency in rendering of services on the part of the opposite parties?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
In order to substantiate her claim that by an agreement for sale, she agreed to purchase the subject flat, complainant has filed the agreement for sale dated 21/10/2001 wherefrom it appears O.P. Nos. 1 & 2 being the developer agreed to sell the flat as described in the Schedule ‘B’ of the complaint at a total consideration price of Rs. 3,25,000/-. Admittedly the possession has been delivered to the complainant and entire amount towards consideration price has been paid by the complainant. It is admitted by the O.P. 1 & 2 about payment of the total sum of consideration price of Rs. 3,25,000/-. O.P. no. 3 however has contended that he has not been made a party to the agreement for sale and no power of attorney has been executed by the owners in favour of the developer O.P. 1 & 2 but in this context it may be pertinent to point out that there is no disputes that a development agreement was entered into between O.P. 1 & 2 with the owners Nisha Roy (Since deceased) and O.P. No. 3 on 06/05/2000 to develop and raise four storied building in the property described in the Schedule ‘A’ of the said development agreement. The copy of the said development agreement dated 06/05/2000 has been filed by the complainant where from it is evident that it has been specifically agreed between the parties therein that on the request of the developers the owners would be obliged to execute deed of conveyance in respect of flats, car parking space etc. in the name of different buyers. So as per the terms in the said development agreement O.P. No. 3 being the owner is liable to execute the deed of conveyance in favour of the complainant in respect of the subject flat as per agreement for sale. Admittedly the possession of the flat was delivered in the year 2002 and the deed could not be registered unless the embargo period of 10 years had expired. The owners had acquired the property admittedly in the year 1994 and there was embargo to transfer it for 10 years. It also appears from the complaint that complainant was also suffering from some financial crises for which she could not take any step for registration of the deed. So on consideration of the said fact and also for delay in filing the present case, we find no justification to pass an order as to compensation. However complainant is entitled to execution and registration of the deed of conveyance in respect of the subject flat.
Hence,
ORDERED
CC/460/2019 is allowed on contest. Opposite parties are directed to execute and register the deed of conveyance in favour of the complainant in respect of the subject flat as per agreement for sale dated 21/10/2001, within 2 months from this date. OPs are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of 2 months.
