DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No.611/2017

Date of Filing:                      Date of Admission:             Date of Disposal:

            07.12.2017                              14.12.2017                              16.01.2023

P R E S E N T                       :-         Smt. Sukla Sengupta………………….President.

:-         Smt. Monisha Shaw…………………. Member.

                                                :-         Sri.  Abhijit Basu…………………. Member.

            JUDGMENT/FINAL ORDER

            The Complainant filed this case U/s 12 Read With Section 13 and 14 of the Consumer Protection Act, 1986.

            The brief facts of the case are as follows:-

            One development agreement was made between the Mira Rani Patra, Smt. Nanda Rani Mitra, Sri Gosta Patra as joint landlords and Sri Amlan Ghoshal, Sri Arup Chandra Das as developer on 17/06/2000. The agreement was made for develop a multi-storied building upon the plot being R.S. Daag No. 5485, R.S. Khatian No. 1253, Mouza Ariadaha, known as 14 Bindhya Basinitala Road, P.S. belgharia, Kolkata – 700057, District North 24 Parganas. Thereafter, on 26/09/2003 one triparte agreement for sale was made between said land lord, developer and purchaser (i.e. Complainant of this case). The developer executed on behalf of landlord by dint of general Power of Attorney executed by said land lords and as a partners of Loknath construction. In the instant case, Complainant is the purchaser and O.P. Nos.1 and 2 are the legal heirs of Nanda Rani Mitra since deceased, heir of the land lords and O.P. No. 3 is developer. The said deed for agreement for sale was made for purchasing a flat for developers allocation for transfer a self contained residential flat being south-east facing situated on the 3^rd floor, measuring about 600 sq.ft. super built up area with undivided proportionate share of land upon the said total land. The consideration amount was settled in between the parties amounting to Rs. 3,60,000/-. The Complainant paid entire consideration amount of Rs. 3,60,000/- as full and final payment on several dates by cash and cheques to the developers. Opposite Parties have already delivered the physical possession and presently the Complainant is residing at suit flat with his family members. The flat is also recorded at Kamarhati Municipality in the name of the Complainant as “occupier”.

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On several occasions the Complainant requested the Opposite Parties to execute and register the sale deed in respect of suit flat but the Opposite Parties assure the same but failed and neglected on different pretexs. Thereafter, on 06/11/2017 the Complainant send demand notice through his advocate for execute and register the relevant deed of sale in his name which is returned with postal department endorsement as unclaimed, which is good service. Hence, compelling circumstances, the Complainant filed this case as prayed for.

From the record, it appears that the Opposite Parties did not appear before this Commission and the case do run ex-parte against the O.Ps from 17/02/2022.

Prayer of the Complainants:-

Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?
2. Whether the Complainant is entitled to get relief / reliefs in this case or not.?
3. Whether there is any pecuniary or territorial jurisdiction under this Commission or not?
4. Whether the case is filed within the limitation period or not?

Decision with reasons:-

We have carefully gone through the petition of complaint, written version, the documents submitted by all the concerned parties. Considering the facts and circumstances as well as nature and character of this case all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of materials on record and relating documents available in case record as well as hearing of the argument by the advocate of the Complainant it is revealed that the Complainant paid full consideration amount of Rs. 3,60,000/-. The Opposite Party No. 2 was appeared before this Commission through Advocate by filing Vakalatnama and also filed Written Version on 3^rd June, 2019. In Written Version O.P No. 2 submitted and admitted that O.P. No. 1 and 2 are the legal heirs of Nanda Rani Mitra since deceased and O.P. No. 3 constructed multi-storied building upon their land as one of the partners of partnership firm. It is also stated in written version that O.P. No. 2 never entered any agreement for sale with Complainant and O.P. No. 1 and 2 never received any consideration money from Complainant. It is admitted that O.P. No. 3 received the entire consideration money, it is also declared that O.P. No. 2 is always ready and willing to execute  and register the deed of conveyance but the OP. No. 3 is not execute and register the document in favour of the Complainant.   

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In the instant case we found that the Complainant paid entire consideration amount for purchasing the suit flat which mentioned in the second schedule of the agreement of the sale deed. The Complainant is in possession of flat and recorded his name in concerned municipality as occupier but O.Ps are not yet execute and register the deed of conveyance in favour of the Complainant and the O.Ps are also not yet provide the completion certificate to the Complainant inspite of serving notice upon all Opposite Parties only O.P. No. 2 appeared before this Commission and filed written version but other O.Ps did not feel any urge to appear before this Commission. O.P No. 2 was also not taking any steps and appeared before this Commission since long. Hence, heard argument ex-parte.

We observed regarding the agreement for sale in page 5 para 9 there is a clause that “developers will hand over the complete physical possession of the said flat to the purchaser and also they will sign, execute and register a deed of conveyance in favour of the purchaser.” In the instant case, registration is not yet made by OPs. Therefore, since the deed of conveyance has not been executed or register in favour of the Complainant, it is continuous cause of action and complaint is within time. The same observation is passed by the Hon’ble N.C.D.R.C., in Revision Petition No. 4437 of 2014, hence the Complainant filed this case within limitation period. We also considered the demand notice of advocate of the Complainant which duly served on O.Ps on 06/11/2017 for asking the O.Ps to execute and register the relevant deed of sale in the name of Complainant. Here the advocate for Complainant send demand notice upon Opposite Parties for execute and register the saledeed but the Opposite Parties were failed and neglected to do the same. In this regard, the issue of limitation the Hon’ble Supreme Court observed in 2022 (4) Indian Civil Cases 354 that “In any case, so far consumer disputes concerned, when appellant failed to execute deed of conveyance despite receiving notice from Complainant, it could safely be taken that cause of action accorued for purpose of complaint only after expiring of period of notice.” Hence, limitation period for filing the case is not over. Complainant files this case within limitation period. Here, Complainant is a consumer and Opposite Parties are service provider but the Opposite Parties did not provide their service and/or failed and neglected to provide their service. It is also mentioned that there is an agreement for sale was made between Complainant and Opposite Party No. 3 as a partner of Loknath Construction, Developer and the mother of O.P. no. 1 and 2 named Nanda Rani Mitra since deceased. Here, developer received the entire consideration money and the developer sold the developer’s allocated flat and developer and / or partnership firm is also the service provider under the consumer protection act but O.Ps are failed and neglected to provide their service.

The Complainant must come under the definition of Consumer U/s 2(1)(d) of the Consumer Protection Act, 1986. Hence, he is a consumer and O.Ps are service provider U/s 29(1)(o) of the Consumer Protection Act, 1986 but O.Ps failed to provide their service, hence, O.Ps are also come under the Consumer Protection Act.

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The case is within the territorial and pecuniary jurisdiction of this Commission. Hence, this Commission has ample power to try this case.

The discussed points bear positive results on behalf of Complainant as such we are of the view that the Complainant is entitled to get a decree for execution and registration of sale-deed in the name of the Complainant and shall provide completion certificate from the competent authority.

Thus all the points are disposed of accordingly.

Hence, for ends of Justice,

It is ordered,

            That the case being no. C.C./611/2017 be and the same  is allowed ex-parte against the O.Ps as O.Ps are not taking any steps and found absent on repeated calls at the time and date fixed of argument also. It is also mentioned that O.Ps are not taking any steps since long.

            The Complainant do get a decree in this case as under. It is directed the Opposite Parties to execute and register the relevant sale-deed in the name of Complainant in respect of suit flat and supply the completion certificate / occupancy certificate to the Complainant with Rs. 10,000/- for compensation to the Complainant by the O.Ps for litigation charges and mental agony within 02 months from the date of the judgment.

Failing which the Complainant has liberty to file execution case according to law.

            Let plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated & Corrected by me                      

Member                                            

Member                                                         Member                                                         President