Dt. of filing - 08/03/2018
Dt. of Judgement – 21/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed under Section 12 of the Consumer Protection Act by the Complainant namely Sri Rabindra Nath Sahu against the Opposite Parties namely 1) Smt. Sovona Ghosh 2) Smt. Sefali Guha Roy 3) Smt. Putul Pal 4) Sri Debraj Pal 5) Sri Debasish Pal and 6) Sri Malay Chatterjee, proprietor of M/s. Metromech Construction alleging deficiency in rendering services on their part.
Complainant’s case in brief is that a development agreement dated 19/04/2004 was entered into between Opposite Party No.6 and the owner of the land namely Renuka Bala Dasi alias RenukaPal who was the predecessor-in-interest of OP No.1 to 5 to raise multi-storied building on the land measuring 6 cottah 15 chitacks 42 sq ft at premises no.93, R.N.Das Road, Dhuria, P.S. Garfa, Kolkata 31. As per the said development agreement some flats and shop rooms of the said multi-storied building under construction fell under developer’s allocation. So by an agreement for sale dated 28/09/2004, OP No.6 agreed to sell one shop room to the Complainant described in the schedule of the agreement and also in complaint petition, in the said newly constructed building at a total consideration price of Rs.90,000/- . As per agreement Complainant has paid the consideration price but instead of going for registration of the deed, Complainant has been put possession of the shop room. Although Complainant has been running his business in the shop room but he has not been recorded as owner of the shop room due to non-registration of the deed. Complainant has learnt that said Renuka Bala died intestate in 2009 and as such Power of attorney in favour of the developer OP has become inoperative. Complainant sent notice to OP No.1 to 5 the legal heirs of the deceased Renuka Pal and to OP No.6 for execution and registration of the Deed of Conveyance but all in vein and thus present complaint has been filed by the Complainant praying for directing the Opposite Party to execute and register the Deed of Conveyance in respect of the subject shop room and to pay Rs.50,000/- towards harassment.
On perusal of record it appears that the OP No.6 did not take any step inspite of service of notice and thus case proceeded ex-parte against him.
OP No.1 to 5 contested the case by filing the written version contending inter alia that Renuka Pal did not die in 2009 indicating she died before that. It is further stated that at the time of execution of agreement by OP No.6, Power of attorney had become invalid and inoperative. However OPs being gentle persons are ready to execute the Deed of Conveyance but on production of original copy of agreement for sale. It is further stated by the OP No.1 to 5 that they being senior citizens are suffering from artharities and thus step should be taken by the Complainant for execution and registration in their home.
Complainant has annexed copy of agreement dated 31/07/2006, money receipts and legal notice sent to the Opposite Parties.
So the following points require to be determined:-
- Whether there has been any deficiency in service in providing service by the OPs?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point No. 1 & 2
Both these points are taken up for comprehensive discussion.
On perusal of the agreement for sale it is evident that the agreement was entered into between the Complainant and OP No.6 on 31/07/2006 for selling of shop room mentioned in the schedule of the complaint.
It is also evident that the OP No.6 executed the agreement in his capacity as the developer and constituted attorney of the owner namely Renuka Bala Dasi. The possession letter filed by the Complainant which appears to have been issued by the developer on 31/12/2007 reveals that possession of the shop room in question has been delivered to the Complainant. The fact that the Complainant is possessing the shop room has not been disputed and denied by the contesting OPs.
The main contention which has been raised by the OPs is that Renuka Bala did not die in 2009 and on the date of execution of agreement in favour of the Complainant by the developer OP No.6, the Power of attorney in his favour had become inoperative and invalid.
In this context it may be mentioned here that there are other cases also filed against these OPs by alleged purchasers of other shop rooms and in CC/113/2018, these OP Nos.1 to 5 in their written version has stated specifically that Renu Bala Dasi died on 03/08/2008. If that be so than on the date of execution of agreement in this case i.e. on 31/07/2006, said owner was very much alive and as such the developer was empowered by the Power of attorney executed in his favour by the owner.
Even on the date of delivery of possession of shop room in 2007, she was alive.
Admittedly said Renuka Bala Dasi died intestate and OP Nos.1 to 5 being her legal heirs are liable to execute the deed. OPs No.1 to 5 have fairly stated in the written version that they intend to execute the deed but due to their age and ailment, Complainant to arrange for execution and registration in their residence.
It will not be out of place to mention here that the documents filed by the Complainant including the original agreement for sale, it appears that Complainant has paid the consideration amount. So the Complainant is entitled to the execution and registration of the Deed of Conveyance. However on consideration of the given facts and situation of this case, no order as to compensation is passed.
These points are thus answered accordingly.
Hence,
ORDERED
CC/110/2018 is allowed on contest against OP Nos.1 to 5 and ex-parte against OP No.6. OPs are directed to execute and register the Deed of Conveyance in the name of the Complainant in respect of the schedule shop room within three months from the date of passing of this order.
