Date of filing : 08.03.2018

Judgment : Dt.21.1.2019

Mrs. Sashi Kala Basu, Hon’ble President.

        This consumer complainant  is filed by Shri  Kashi Sikari  under Section 12  of the  Consumer Protection Act, 1986 against the OPs namely (1) Smt. Sovona Ghosh (2) Smt  Sefali Guha Roy (3) Smt. Putul Pal (4) Sri Debraj  Pal (5) Shri Debashish Pal and (6) Sri Malaya Chatterjee alleging  deficiency  in rendering services on their part.

Complainant’s case  in brief is that one  Renuka Bala  Dasi was the owner in respect of the property  being land measuring   6 cottah  15 chittaks   42 sq.ft at Premise No. 93, R.N. Das Road,  Dhakuria,  P. S.  Garfa, Kolkata – 700 031. She entered into a development agreement with the O.P No. 6 on 19.04.2004  for construction of  a  multi - storied building.  OP No.6 is the sole proprietor of the M/s. MetroMech Construction. OP No. 6 than entered into an agreement for sale of a shop room as described  in  the  schedule  of  this  complaint  petition  with the complainant on  payment of                                                                                                                total consideration price of Rs. 75,000/-. The agreement was entered  on 11.11.2013. O.P Nos. 1 to 5  are the legal heirs of the said owner namely Renuka Bala Dasi.  Complainant has paid the entire consideration money to the OP No.6 who has handed over the possession of the shop room to the complainant but no deed of conveyance has been executed and registered in spite of repeated requests and sending of the legal notice to the OPs. OP No. 6 had entered into the agreement with the complainant as the Constituted Attorney of the owner Renuka Bala Dasi. Thus this complaint has been filed by the complainant directing the OPs to execute and register the deed of conveyance in respect of the subject shop room in favour of the complainant and to pay compensation of Rs. 50,000/- towards harassment.

           Complainant has annexed with the complaint petition,  Copy of agreement and notice sent by the complainant through his Ld. Advocate to the OPs.

  OP Nos.  1 to 5  have filed  the Written Version  denying the allegations made in the complaint petition stating inter alia that the agreement has been entered into  by the  OP No.6 with the complainant when the Power of Attorney became invalid consequent to the death of Renuka Bala Dasi. It is further stated that they being the gentle persons, however, ready to execute the deed of conveyance if the original agreement is produced.

          OP No.6 did not take any step in spite of service of notice and thus t he case proceeded exparte against the OP No.6.

 During the course of evidence, complainant filed the affidavit-in-chief. OP Nos. 1 to 5 did not take any step after filing of the written version.

          So, the point requires  determination is whether  the complainant is entitled to the  relief as prayed for ? 

Decision with reasons

          It appears from the complaint petition as well as the photo copy of the agreement annexed with the petition of complaint that the complainant entered into  an agreement with the  OP No.6 on11.11.2013, to purchase  a shop room being Numbered- 9,  measuring an area of  20 sq. ft. on the ground floor  which is described in the schedule of the complaint petition. So, the petition of complaint  and the photo copy of agreement indicates  that the agreement was executed on 11.11.2013 but the original copy of the agreement is also produced wherefrom it appears  that  the agreement was executed  on 01.09.2007. It is not explained by the complainant anywhere  as to how  two separate dates  of execution  are appearing  in the photo copy  annexed with the complaint petition and the original copy of the agreement. However, since the legislation is for the consumer benefit, original agreement is taken into consideration  for the purpose of  adjudication  of the dispute  in this case. Moreover, it is also a settled law that  the original document  being primary evidence always  has to be relied upon.

          It appears from the said original agreement  dated 01.09.2007 that the present complainant  agreed to purchase  a shop room  described  in scheduled   ‘B’ of the agreement for sale  at a total consideration price  of Rs. 75,000/-. It is stated by the complainant that the entire consideration  price  has been paid to the OP No.6 which is also  evident from the memo of consideration  in page no.4 of the agreement. He has paid   Rs.45,000/- on the date of agreement and thereafter  on 30.12.2007 he has paid further amount of Rs. 30,000/-. Complainant has also  filed letter of possession dated 31.12.2007 wherefrom it appears that the complainant  has been asked  to take possession of  shop room bearing no. 9 on the ground floor of Premises no. 93, R. N. Das Road, Dhakuria, Kolkata – 700 031. In order to show that he is in possession  of the said shop room, complainant has  also filed  property tax receipt issued by the Kolkata Municipal Corporation in the name of the complainant. If that be so then the complainant is entitled to execution and registration of  the deed of conveyance in respect of the  said shop room as he has paid  the total consideration price as per the terms and condition of the agreement. OP Nos. 1 to 5 are the legal heirs  of Renuka Bala Dasi who appears to have expired on 03.08.2008. The date of death of said Renuka Bala Dasi has been stated  by OP Nos. 1 to 5 in the written  version  filed by them in another case being no. CC/113/2018 filed by another complainant. So, consequent to the death of said Renuka Bala Dasi alias Renuka Pal, the effect of Power of Attorney executed in favour of OP No.6, is automatically terminated. So, OP Nos.1 to 5  being  legal heirs  of the said Renuka Pal are liable  to execute and register the  deed of conveyance in  respect of the schedule  shop room in favour of  the complainant. OP Nos.  1 to 5  have also agreed  in the written version  that they are ready  to execute  the deed of conveyance. So the complainant  is entitled  to relief  for directing the  OPs for executing the deed of conveyance but taking into consideration  the given facts and situation  of this case no compensation  as prayed for  by the complainant can be allowed  as he has been in  possession  of the shop room.

Hence,

                                                                                ORDERED

          CC/109/2018 is allowed exparte against  Opposite Party  No.6 and on contest against Opposite Party  Nos. 1 to 5. Opposite  Parties  are hereby  directed to execute the deed of conveyance  in respect of the schedule  shop room in favour of the  complainant  within three months from the date of  this order.