This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainants, Sanjay Kr. Datta & Tumpa Datta.

The case of the complainants’ in short is that they intends to purchase a complete flat situated at the ground floor of a newly constructed multi-storied building namely “Jagannath Villa” at 15/B, Raja K.L. Goswami Street, Serampore, Hooghly and accordingly there was an agreement between the petitioners/purchaser and the developer i.e. M/s.Ganapati Construction on 30.07.2014. That Sri Amit Kumar Bhattacharjee, Sri Alock Sarkar, Sri Somnath Nandi and Sri Prabir Chakraborty are the partners of M/s. Ganapati Construction and Sri Amit Kumar Bhattacharjee and Sri Alock Sarkar are also the constituted attorney holder on behalf of the owner of the property i.e. Smt. Sandhya Pyne as per terms and conditions of the power of attorney dated 11.2.2011.  As per agreement of sale dated 30.7.2014 the purchase price of the garage was fixed at Rs.6,50,000/-. The petitioners paid Rs.10,000/- in cash as advance money to the O.Ps. on 28.7.2014 and on the date of agreement i.e. on 30.7.2014 the complainants paid Rs.1,20,000/- in cash to the developer.  Thereafter the complainants paid Rs.2,00,000/- on 5.8.2014 in cash to the developer.

The developer delivered the possession of the garage to the complainants on 10.8.2014 and subsequently on the same date i.e. on 10.8.2014 paid Rs.2,00,000/- to the developer.  Thereafter the complainants paid balance amount of Rs.1,20,000/- to the developer on 18.8.2014.  The petitioners got report that the owner i.e. Smt. Sandhya Pyne revoked the power of attorney and as a result inspite of written agreement between the petitioner and developer in respect of execution and registration of the said garage and inspite of repeated request, the developer is not taking any steps for execution and registration of the said garage.

The petitioners sent legal notice through their Ld. Advocate Binoy Bhusan Das on 24.8.2015 to the land owner requesting her to complete the transaction as early as possible and inform the petitioners the date and time for execution and registration of sale deed within 15 days from such notice but owner did not pay any heed to that effect.  In absence of valid and legal documents the complainants are facing much inconvenience.

Finding no other alternative the complainants filed this case before this Forum with a prayer to direct the O.P. to execute and register the garage by preparing a deed of conveyance in favour of the complainants, to pay Rs.1,00,000/- as compensation for harassment and mental agony of the petitioners.

The O.P. No.A contested the case by filing written version denying inter-alia all the material allegation as leveled against her.  This O.P. stated that she received a notice dated 24.8.2015 sending by the complainants under section 12 of the C.P. Act, are absolutely bad in law because it is clearly written in the said notice that the petitioners purchased a garage from the other opposite party.  But there is no garage in building concern namely ‘Jagannath Villa’ as per the sanctioned building plan.  Not only that it is not possible for this O.P. to know that who are the actual buyer of the flat or garage or any unit of the building concern.  After revocation of power of attorney this O.P. duly informed both the attorney about the revocation of power of attorney by a letter dated 1.9.2014 through registered post and also informed under what circumstances this O.P. was compelled to revoke the said power of attorney.  This O.P. has no enmity with the petitioners or with any other purchaser of any unit of the building concern.  In the said letter this O.P. categorically mentioned that she is ready to execute all deed personally and also ready to present herself and/or to appear before the concerned registrar for registration of deeds in respect of the flats and other units of the developer’s allocation for the building constructed by said M/s. Ganapati Construction upon the said holding of her only after total compliance of the terms and conditions of the said agreement for development and only after giving lawful and effectual possession of the owner’s allocation in the said building to her  and also only after her other lawful demands for which she is lawfully entitled.  Hence, this complaint case.

The O.P. No.B and B1 to B4 contested the case by filing written version.  They stated that the petitioners intends to purchase a complete garage situated at the ground floor of a newly constructed multi-storied building namely “Jagannath Villa” at 15/B, Raja K.L. Goswami Street, Serampore, Hooghly and accordingly there was an agreement between the petitioners/ purchasers and the developer i.e. M/s. Ganapati Construction on 11.8.2014. It is admitted fact that Sri Amit kumar Bhattacharjee, Sri Alock Sarkar, Sri Somnath Nandi and Sri Prabir Chakraborty are the partners of M/s.Ganapati Construction and they are also the power of attorney holder of the owner Sandhya Pyne as per terms and conditions of power of attorney dated 11.2.2011. And the possession of the suit property was handed over to the petitioners/purchasers on 19.8.2014 and till date the petitioners are in possession of the suit property.  It is further submitted that the relationship between the petitioners and O.P. No.B1 to B4 is very good and cordial and till now it is well maintained.  They are all along ready and willing to do registration of the garage in favour of the petitioners. All on a sudden the owners of the property i.e. Smt. Sandhya Pyne revoked the power of attorney on 27.8.2014 so the registration of the said garage was not possible. These OPs also stated that being honest and respectable citizen, the partners of a well known construction/developer agency i.e. Ganapati Construction, they are always ready and willing to help the petitioners to secure the valid ownership of the garage.

That in absence of power of attorney these O.Ps. have no right on capacity or any status to register the flat, but O.P. No. A now has responsibility to register the flat in favour of the petitioners and she is bounded to do so.

Both sides files evidence on affidavit, questionnaire followed by reply and written notes of argument which are taken into consideration while passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Sanjoy Kumar Dutta & Tumpa Dutta  are ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

    In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Sanjoy Kumar Dutta & Tumpa Dutta  are ‘Consumers’ of the opposite party?

From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein is the consumer of the OP, as the complainants being the intending purchaser paid consideration money and possessing the schedule mentioned garage so they are entitled to get service from the OP as consumers.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainants and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.100,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.      

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

  The case of the complainants is that they intends to purchase a complete garage situated at the ground floor of a multi-storied building namely “Jagannath Villa” at 15/B, Raja K.L. Goswami Street, Serampore, Hooghly and accordingly there was an agreement between the petitioners/purchasers and the developer i.e. M/s.Ganapati Construction on 30.7.2014. That Sri Amit Kumar Bhattacharjee, Sri Alock Sarkar, Sri Somnath Nandi and Sri Prabir Chakraborty are the partners of M/s. Ganapati Construction and Sri Amit Kumar Bhattacharjee and Sri Alock Sarkar are also the constituted attorney holder on behalf of the owner of the property, i.e. Smt. Sandhya Pyne as per terms and conditions of the power of attorney dated 11.2.2011. As per agreement of sale dated 30.7.2014 the purchase price of the garage was fixed at Rs.6,50,000/-.  On the date of agreement i.e. on 30.7.2014 the complainant paid Rs.1,20,000/- in cash to the developer. Thereafter the complainant paid Rs.2,00,000/- on 5.8.2014 and Rs.2,00,000/- on 10.8.2014 in cash to the developer.

The developer delivered the possession of the garage to the complainants on 10.8.2014 and subsequently the petitioners on 18.8.2014 paid Rs.1,20,000/- to the developer. The petitioners got report that the owner i.e. Smt. Sandhya Pyne revoked the power of attorney  so the developer is not taking any steps for execution and registration of the said garage owing to lack of power to do the same. Then the petitioners sent legal notice through his Ld. Advocate on 24.8.2015 to the owner requesting her to complete the transaction as early as possible and inform the petitioner the date and time for execution and registration of sale deed within 15 days but owner did not pay any heed to that effect. Getting no alternative the complainant filed the instant complaint case before this Forum praying direction upon the opposite party to execute the deed of conveyance in favour of this complainant, compensation for harassment and mental agony & litigation cost. 

 The opposite party No. A in his argument stated that she has no idea regarding any agreement between the petitioners and the other opposite parties. This opposite party has no enmity with the petitioners. The opposite party No.A categorically mentioned that she is ready to execute all deed personally and also ready to present herself and/or to appear before the concerned registrar for registration of deeds in respect of the flats and other units of the developer’s allocation for the building constructed by said M/s. Ganapati Construction upon the said holding after total compliance of the terms and conditions of the said agreement for development and only after giving lawful and effectual possession of the owner’s allocation in the said building.  She assailed that on the date of revocation of Power of Attorney the complete flat was unsold but the opposite party developer executed the agreement for sale in back date. This petitioners purchased the flat without causing any search and without going through the documents relating to building and land in respect of right and title. The opposite party No. A assailed against the opposite party No.B1 to B4 for not getting owners allocation as per agreement. 

 The opposite party No.B1 to B4 admitted in the evidence on affidavit as well as written argument that M/s Ganapati Construction entered into an agreement with Smt. Sandhya Pyne the owner of the property to develop and construction of multistoried building on the property situated at 15/B Raja K.L.Goswami street, Serampore, Hooghly. They also admitted that there was agreement in between the complainants and the developer in respect of purchase of a garage at a consideration of Rs.6,50,000/-. It is also admitted that the petitioners paid total consideration money to the developer for the said garage and the developer delivered possession of garage on 10.8.2014. There is no deficiency of service of the opposite parties no.B1 to B4 so they are not liable to pay any compensation to this complainant.

After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainants paid the consideration money during agreement for sale and after completion of garage paid the agreed value and in possession since then. When the OP No.A & OP No.B1 to B4 failed to execute &register the deed of conveyance then the complainants filed the instant complaint petition praying direction upon the OP to execute and register the flat mentioned in schedule. It is crystal clear that owners has allegation against the developers regarding dispute in respect of owners allocation but the case filed by the complainants praying reliefs against the opposite party including the owner for getting his flat executed & registered by the opposite parties.

 The opposite party No. B and B1 to B4 in their written version as well as written notes of argument admitted that they have taken the value of the garage from the complainant in different times and gave possession to the complainant so they are under liability to execute and register the sale deed in favour of the complainants but fact remains that the power to execute and register through deed of conveyance has been seized. Delay of execution & registration of deed of this complainant caused due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to these complainants.

It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainants have made several requests to the opposite parties to get the deed executed in favour of them but it remained unheeded. The O.P. no. A tried to evade her responsibility by putting blame on O.P. No.B1 to B4 and O.P. No. A tried to get owner’s allocation from the O.P. No. B1 to B4 in this consumer dispute which is not tenable in the eye of law. Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties.  So we may safely conclude that the OP No.A is also responsible to execute the deed of conveyance in favour of the complainants.

   Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the deed executed in their favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainants within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants. However, since the complainants are in possession considering the loss suffered by them, they are entitled to compensation of Rs.20,000/- from the opposite parties NoB1 toB4.

       Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned garage by adducing cogent document/evidence so the prayer of the complainants are allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.

ORDER

 Hence, ordered that the complaint case being No.192/2015 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.6000/- to be paid by the OP No.B1 to B4.

The Opposite Party No. A to B4 are directed to execute and register the deed of conveyance in favour of the complainants in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainants may get the deed executed through the machinery of this Forum.

    The Opposite Party No.B1 to B4 is directed to pay compensation amounting to Rs.20,000/- to the complainants for mental pain and agony within 45 days from the date of passing this order.    At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.