Dt. of filing – 10/01/2018

Dt. of Judgement – 24/04/2019

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainants namely 1) Sri Pijush Kanti Dutta and 2) Smt. Reshmi Dutta under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party namely 1) Smt. Usha Singhi alleging deficiency in rendering service on their part.

          Complainants’ case in brief is that being interested to purchase a flat at Singhi Park Apartment, 48/3, Gariahat, Kolkata-700 019, they paid Rs.50,000/- on 1/8/2003 by way of cheque to the Opposite Party for the flat being no.NIB, 1^st floor of G+5 building measuring 1137 Sq ft. Subsequently an Agreement for Sale was entered into between parties on 27/8/2004. Complainants started making payment by way of installment. Accordingly they paid total consideration price of Rs.14,21,250/- to the Opposite Party. Opposite Party being a co-owner was also the Power of Attorney holder of other co-sharers which was registered on 3^rd February, 1998. On acceptance of the entire consideration price, Opposite Party handed over the said flat to the Complainants on 31^st July, 2004. No Deed of Conveyance has been executed inspite of repeated request by the Complainants. Opposite Party assured the Complainants she will execute the Deed of Conveyance but at first the sale agreement was to be registered. So in good faith sale agreement was executed and registered on payment of requisite fees assessed by the Registering Authority. Since inspite of repeated request the Deed has not been executed. The present case has been filed by the Complainants for directing the Opposite Party to execute and register the Deed of Conveyance in favour of the Complainants in respect of subject flat, to compensate and pay amount of Rs.1,12,563/- towards registration fee as the Deed was to be registered in the year 2005, but the same was not been done, to pay Rs.3,00,000/- for harassment and mental agony and litigation charges of Rs.20,000/-.

          Complainants have annexed with the petition of complaint, copy of the declaration which appears to be document empowering Opposite Party to develop and to raise building and to transfer as well, copy of agreement for sale dated 27/8/2004 entered into between parties and the copy of the letter sent by the Complainants to the Opposite Party dated 7/4/2017.

Opposite Party has contested the case by filing written version disputing and denying the material allegations made in the complaint petition contending inter alia that the present complaint case is bad for non-joinder and mis-joinder of necessary parties. It is further stated that Complainant herself failed in taking step between 2004 to 2017 for getting the Deed registered. So there has not been any negligence on the part of the Opposite Party. It is also contended that from the agreement, it is apparent that the subject flat was already constructed apartment. So question of hiring any housing construction service was not there and thus Complainants are not a consumer under the Consumer Protection Act. Thus she has prayed for dismissal of the case.

          During the course of the evidence both the parties have filed their respective affidavit-in-chief followed by filing of questionnaire and reply thereto. Ultimately argument has been advanced. Opposite Party has also filed brief notes of argument. A case law has also been cited by the Opposite Party reported in 2017(4) CPR 690(NC) in support of argument that if a person enters into an agreement to purchase a ready built up flat such transaction could not be covered under the Consumer Protection Act.

          So the following points require determination:-

1. Whether there has been any deficiency in service on the part of the Opposite Party?
2.  Whether the Complainants are entitled to the relief as prayed for?

Decision with reasons

          Point No.1 & 2  

          Both these points are taken up for a comprehensive discussion in order to avoid repetition.

          Before discussing whether there has been any deficiency, it may be pertinent to point out that the Opposite Party has agitated that Complainants are not consumer as the agreement was to purchase a ready built up flat. In this regard it may be mentioned here that it is true that the agreement was entered into between parties on 27/8/2004 and apparently possession was handed over to the Complainants on 31/7/2004. So the same indicates that the possession of the flat was delivered even before execution of the Agreement for Sale. But on a careful perusal of materials on record specially the letter dated 31/7/2004 which appears to be relating to handing over possession of the flat that the Opposite Party has acknowledged receiving of the amount by way of cheque on different dates starting from 1/8/2003 to till 30/7/2004. So it indicates that there was already talk of purchase of the flat and the amount was already paid by the Complainants before even execution and registration of the Agreement for Sale. Complainants has also stated in the complaint petition that they had paid the booking amount of Rs.50,000/- on 1/8/2003. In such a situation if booking amount was paid firstly on 1/8/2003 and the possession was handed over on 30/7/2004, the contention of the Opposite Party that it was a readymade flat and so no housing construction service was hired, cannot be accepted.    Apparently entire consideration price even though has been paid by the Complainants but the Deed has not been executed in their favour. According to Opposite Party, Complainants themselves did not take any step for getting the Deed of Conveyance executed and registered till 2017. But at the same time she has also urged that Power of Attorney in her favour by other co-owners has been revoked. It may be mentioned here that the Opposite Party nowhere in the written version has stated that Power of Attorney was revoked. On the contrary, it is categorically stated that she has already executed the Deed of Conveyance in respect of 65 apartment owners. In paragraph 8 of the written version she has stated “Opposite Party already executed and registered the Deed of Conveyance in respect of 65 apartment owners which indicates that the Opposite Party never had nor has any malafide intention and as such the present complaint is baseless and privilege one.”

          So if the Opposite Party has executed the Deed of Conveyance in respect of 65 apartment owners then her claim that the Power of Attorney was revoked in 2004 creates doubt. Since the Consumer Protection Act is a beneficial legislation for the consumers, the present Complainants cannot be deprived from execution and registration of Deed of Conveyance in their favour in respect of the flat as agreed and handed over to them. It is the Opposite Party who has received the entire consideration money and handed over the possession to the Complainants. Since Opposite Party herself has claimed that she has executed and registered the Deed for other 65 apartment owners but Complainants did not take any step for registration till 2017, her claim that the other co-owners are also necessary party is of no consequence, as she has been acting on their behalf as constituted attorney. In such  a view of the matter the Complainants are entitled to the execution and registration of the Deed and also compensation of Rs.1,20,000/- towards harassment and as they will have to pay the registration fees as per present market value.

          Thus these points are answered accordingly.

Hence,

ORDERED

CC/12/2018 is allowed on contest. Opposite Party is hereby directed to execute and register the Deed of Conveyance in favour of the Complainants in respect of the flat as agreed in the agreement within three months from the date of this order. She is further directed to pay compensation of Rs.1,20,000/- and litigation cost of Rs.10,000/- within the aforesaid period of three months, in default the entire amount shall carry interest @8% p.a till realization.