Date of filing: 24/10/2019                                                    

Date of Judgment: 23/05/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Sri Avisek Sarkar under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) Pratima Chatterjee (2) Banhi Chatterjee (3) Snigdha Chatterjee (4) Neha Chatterjee (5) Kshiti Ranjan Chatterjee (6) Subrata Chatterjee (7) Ranjan Chaterjee (8) Satarupa Sen Roy and (9) Swati Ghosh, alleging deficiency in rendering of service on the part of the opposite parties. 

Case of the complainant in short is that a development agreement dated 06/12/1984 was entered into between the owners of the property being premises no. 12, Balaram Ghosh Ghat Road, Kolkata – 700 025 under police station Bhawanipur and the developer namely Sukumar Ghosh proprietor of M/s. Housing Promoters, to construct a multi storied building. The OP 1 to 8 are those owners or their legal heirs and OP 9 is the widow of Sukamal Ghosh the developer. Consequent to the development agreement entered into between the owners and the developer, father of complainant namely Ajit Sarkar (since deceased) agreed to purchase a flat from the developer’s allocation at a consideration price of Rs. 1,68,750/-. Said agreement was entered into between the complainant’s father and the developer on 23.04.1985. The entire consideration money was paid by the complainant and on payment of the same, developer also handed over the possession of the flat to the complainant as per the agreement for sale. But since, after delivery of possession, opposite parties i.e. developer and the owners did not execute and register the deed of conveyance, present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance in respect of the flat no. 14 in the 3^rd floor as per agreement in favour of the complainant, to pay sum of Rs. 2,50,000/- as compensation and to pay Rs. 50,000/- as litigation cost.

OP 1, 5, 6, 7, & 8 have contested the case by filing the written version contending specifically that the development agreement was executed on or about 06/12/1984 and the agreement for sale was entered into between the father of complainant and the developer on 23/04/1985. But the complainant sat tight over the matter for such a long period. No step was taken by the complainant himself for registration and only to fetch money or illegal gain, complainant has filed the present complaint after so many years. It is further contended that the father of complainant had purchased the flat at a consideration price of Rs. 1,68,750/- in the year 1985. Today the market value of the same is more than 20,00,000/- and if there is any execution and registration of deed by the OPs, they shall have to bear the tax over the capital gain. So if there is any such direction to the OPs to execute and register the said deed in respect of flat in question then there be direction upon the complainant to bear the tax over the capital gain on behalf of OPs.

Other OPs including OP No. 9 the widow of the developer, did not turn up in spite of service of notice and thus the case has been heard exparte against them.

During the course of evidence complainant filed examination in chief on affidavit but it appears that the contesting OPs did not take any step either to file questionnaire or to file examination in chief on affidavit. They also did not appear during argument. Complainant only has filed BNA.

So the following points require determination:-

1. Whether there has been any deficiency in rendering of service on the part of the OPs?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

Both the points being interlinked are taken up together for discussion. In order to substantiate his claim that there was a development agreement between the owners and the developer namely Sukamal Ghosh (Since deceased and his legal heir being OP 9), complainant has filed the copy of the said development agreement where from it appears that the same was entered into between the parties therein on 06/12/1984. Complainant has also filed the copy of the agreement for sale entered into between his father Ajit Sarkar (since deceased)  and the said developer Sukamal Ghosh (since deceased) dated 23/04/1985. It is an admitted case of the complainant that the possession of the said flat as per agreement dated 23/04/1985 has already been handed over to him. Complainant also filed a possession letter dated 0/04/1986 which indicates that the possession was handed over to father of complainant on 01/04/1986 stating therein categorically that registration of the deed will be done in September 1986. It is also stated that all dues in respect of flat shall have to be paid before registration. From the letter dated 10.04.1986 issued to the complainant by the developer, it appears Rs. 1,50,000/- has only been paid. Complainant has not filed any document that he made any further payment. In such a situation complainant is liable to pay balance of Rs. 18,750/- to OP. No. 9.  

On a careful scrutiny of the written version filed by the contesting OPs as referred to above, their main contention is that the complainant remained silent whereas deed has already been executed and registered in favour of other flat owners. According to OPs, 9 nos. of flat out of 11 nos. of flat of the developer’s allocation has already been registered long back. It is evident from the possession letter filed by the complainant that the possession was delivered in April 1986. But the complainant has not filed a single document stating that he wrote either to the developers or to the owners for execution and registration of deed. Excepting bare statement that he requested repeatedly to the OPs for registration of the deed, there is no scrap of paper that he had approached the opposite parties or their predecessor in interest for registration of the deed. Apparently complainant slept over the matter for more than 32 years. If he could approach this commission in the year 2019 then there is no explanation why he could not approach it before. However, it may also be pertinent to point out that OPs also have not filed any documents or letter that they had written at any time to the complainant, to take step for registration of the deed. So since complainant is in possession of the flat but no deed has been executed and registered, he is entitled to execution and registration of the deed in respect of the flat as per agreement. Be it mentioned that complainant has claimed that he is the sole legal heir of Ajit Sarkar (since deceased). However, we do not find any justification to pass an order of compensation as prayed by him or any litigation cost. So far as the contention of the OPs that they will have to bear the tax for alleged capital gain, same has not been explained. It is not clear, how there will be any capital gain by the OPs.  The deed will only be registered on payment of registration fee as per the present market value and the said registration cost will be borne by the complainant. The consideration price paid as per agreement will remain same. Apart from this, there cannot be any direction against the complainant as prayed by the OP in this case as question of any counter claim does not arise.

It may further be mentioned that the Promoter / developer in this case is already dead, so the power of attorney if any must have lost its effect. In such a situation owners OP 1 to 8 are liable to register the deed in favour of the complainant and if necessary OP 9 may be a confirming party.

Hence,

             ORDERED

CC/556/2019 is allowed on contest against OP 1, 5, and 6 to 8 and exparte against OP 2 to 4 and OP 9. Opposite parties are directed to execute and register the deed in respect of the flat in favour of the complainant as per agreement dated 23/04/1985, within two months from this date on payment of balance consideration price of Rs. 18,750/- by the complainant to OP. No. 9.