Date of filing : 03.08.2018
Judgment : Dt.27.08.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Sri Tapan Adhikary alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (Smt. Mahua Majumder and (2) Smt. Pranati Ghosh.
Facts in brief are that the OP No.2 is the absolute owner of a piece of land measuring about 3 cottah 9 chittacks 2 sq.ft. lying and situated at Mouza – Paschim Barisha, J.L.No.-19, C.S.Khatian No.2222, C.S.Dag No.3806 under R.S. Khatian No.3350, Dag No.3806/4517, P.S.-Thakurpukur, KMC Warde No.125, premises No.40, Ranganathpur colony, Postal premises No.60 Thakurpukur Road, Kolkata-700 063. The OP No.2 being landowner of the above mentioned premises entered into a Development Agreement on 03.10.2001 with the husband of OP No.1 (Developer) for constructing a G+3 storied building. Subsequently, the Complainant for availing housing construction service in respect of a flat on the said building entered into an Agreement with the Developer (husband of OP No.1).
The Complainant has stated that he paid entire consideration amount of Rs.5,25,000/- against which receipts were issued by the Developer (husband of the OP No.1) and possession of said flat was duly handed over to the Complainant and receiving possession of the flat the Complainant obtained separate electricity connection from CESC and requested the developer (husband of OP No.1) to execute and register the Deed of Conveyance in favour of him but subsequently the Developer Ranjit Majumder (husband of OP No.1) died leaving behind his wife (OP No.1) as his legal heir. It is stated by the Complainant that after demise of the developer he requested the OP Nos.1 & 2 to execute and register the Deed of Conveyance in favour of the Complainant but the OPs did not do the same and, therefore, the Complainant sent notice dt.3.7.2018 to the OPs but the OPs paid no heed to that notice and thus, caused willful negligence and harassment to the Complainant and finding no other way the Complainant by filing the instant Consumer Complaint prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the Complainant and other reliefs.
The Complainant annexed copy of Agreement for Sale dt.29.6.2003. Money receipts, possession letter dt.4.2.2004. Advocate’s letter dt.3.7.2018 and returned envelope.
Notice was served by way of paper publication but the OP No.1 did not turn up, and, therefore, the case proceeded ex-parte against OP No.1 vide order dt.15.11.2018.
The OP No.2 contested the case by filing written version stating inter alia, that the Agreement for Sale dt.29.6.2003 is not binding upon the OP No.2 since it was executed by and between the Complainant and the Developer (husband of OP No.1) only. The OP No.2 has stated that possession of the flat claimed to have been handed over to the Complainant but facts remain that the said flat has been under control of some other persons who being allegedly claimant of the said flat retained the control of the said flat and put a padlock on the main door of the flat and the OP No.2 being co-owner of the said building namely Pranati Apartment had found a Bank notice on the main door of the said flat. It is stated by the OP No.2 that the Complainant never approached her for execution and registration of the Deed of Conveyance and, moreover, ownership of the flat in question was under dispute. It is also stated by the OP No.2 that if the Complainant succeeds to establish his bona fide the Deed of Conveyance would be executed by OP No.2 in favour of the Complainant and prayed for dismissal of the case.
The Complainant adduced evidence but the OP No.2 did not file any evidence. No questionnaire was filed by the OP No.2 against the evidence of the Complainant.
The Complainant filed BNA and Municipal Tax payment receipt and electricity bill issued to the Complainant.
In course of argument Ld. Advocate for the Complainant has submitted that the Complainant has been residing in the flat in question since the time of receiving possession and the same is under his possession.
None appeared on behalf of OP No.2.
Points for determination
- Whether there is deficiency on the part of the OP
- Whether the Complainant is entitled to the reliefs as prayed for
Decision with reasons
Point Nos.1 & 2 – Both points are taken up together for comprehensive discussion and decision.
The Complainant claimed to have entered into an Agreement for Sale with the Developer (husband of OP No.1) in respect of a flat to be constructed by the Developer and paid entire consideration amount. In support of such contention the Complainant has filed a copy of Agreement for sale dt.29.6.2013 and money receipts wherefrom it appears that the Complainant entered into Agreement for Sale with one Ranjit Majumder on 29.6.2003, in respect of a flat and paid entire consideration amount of Rs.5,25,000/- by installments on different dates.
On perusal of documents on record it further appears that the Developer (husband of OP No.1) handed over possession on 4.2.2004 to the Complainant by issuing a possession letter in favour of the Complainant but sudden demise of said Ranjit Majumder put hindrance to execute the Deed.
It is stated by the OP No.2 in her written version that the flat in question is under the control of some other persons and she being owner of the property noticed that a Bank Notice has been pasted on the main door of the flat which has been kept under lock and key by the said person. The Complainant by filing Evidence swearing affidavit has denied the said averment and, moreover, in course of argument has filed a copy of Municipal Tax payment receipt dt.29.5.2018, which was payable by the Complainant to the KMC and Electricity bill payable on 1.8.2015 which indicates that the Complainant is in possession of the said flat.
The OP No.2 has stated that the Agreement for Sale executed by and between the Complainant and the Developer is defective one since the landowner has not been made a party to that Agreement for Sale.
On perusal of Agreement for Sale date 29.06.2003, it appears from point No.L that the landowner namely Pranati Ghosh (OP No.2 herein) executed and Registered a Power of Attorney in favour of the Developer Ranjit Majumder, since deceased (husband of OP No.1) being Deed No.3304 for the year 2002 and entered into a Development Agreement with the developer (husband of OP No.1) on 3.10.2001. However, the OP No.2 has not denied or raised any point against execution of Power of Attorney and Development Agreement. It is, therefore, evident that the Developer by virtue of above mentioned documents was empowered to enter into agreement for sale with intending purchaser but after demise of Ranjit Majumder, the power of Attorney executed in favour of him lost its force.
Furthermore, considering the unrebutted and unchallenged evidence of the Complainant, we are of opinion that the Complainant entered into Agreement for Sale in respect of a flat with the Developer and paid entire consideration amount so he is entitled to get registered the flat in favour of him.
Under such state of affairs, we think it will be just and proper if the OP No.1 being financial beneficiary of the deceased developer by and between whom and the Complainant the Agreement for Sale was executed is to take responsibility of execution and registration of the Deed of Conveyance on the footings of as such Developer. The OP No.2 being the land owner is also to take responsibility for such registration.
In the result, the Consumer Complainant succeeds.
Hence,
ordered
That CC/466/2018 is allowed on contest against OP No.2 and allowed ex-parte against OP No.1 without cost.
The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within two months from the date of this order alternatively the Deed of Conveyance will be registered in favour of the complainant through machinery of this Forum.
