Date of Filing             :   13  July, 2018.

Date of Judgement     :   30 January, 2023

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when the complainant, Benedict Anthony David, filed a complaint under Section 12 of the Consumer Protection Act, 1986, herein after called the said Act, against Smt. Swapna Ghosh, a partner of M/s. Buildtech, herein after called the Opposite Party or O. P., alleging deficiency in service occurred by the Opposite Party.

            The brief statement of the complaint is, complainant has purchased a self contained residential flat measuring about 797 sq. ft. super build up area together with undivided proportionate share of land lying and situated at 136A, Bhupen Roy Road, Phasse – II, on third floor, flat No. 3C and 50% of terrace area with all open space with the toal consideration price decided at Rs.3,90,530/-.  He paid the total consideration as per schedule of the agreement (for Sale) dated 18.08.1996.  The complainant got possession of the scheduled flat but could not be registered in his name since the year 1997.  He sent a legal notice through his Ld. Advocate on 10/05/2018 to get his flat be registered in his favour.  But the O. P. did not respond to this notice and ultimately the complainant filed this complaint with the prayers to get his flat be registered in his favour, a compensation of Rs.10,00,000/- and other orders as this Commission thinks fit.

            Complainant filed copies of the i) Agreement for Sale, ii) Development Agreement made between the O. P. as Developer and the land owners, iii) Agreement for Sale executed between the O. P. and another person, namely Sri Kalyanbrata Majumder, iv) No Due Certificate issued by the concerned HDFC Bank and v) some copies of receipts of payment to the O. P. as annexure to his complaint petition.

            After receiving the complaint, notice was sent to the O. P. on several occasions as it could not be served to the O. P. Lastly the notice returned with postal endorsement “Door Locked” and “Addressee Absent” which amount to good service.  However, the O. P. did not turn up to contest the complaint. Consequently the case proceeded ex parte.  Thereafter complainant filed Affidavit-In-Chief and Brief Notes of Argument and finally this Commission comes to the point of issuing Final Order/Judgement.

            We are in the juncture to decide:

            1.  Whether the complaint is to be dealt under the provision of the C. P.Act, 1986/2019?

            2.  Whether the complaint is barred by limitation?

            3.  Whether there occurred any deficiency in providing service to the complainant by the O. P.?  and      

            4.   Whether the complainant is entitled to get relief as prayed for? 

Let us take these points together for the sake of avoiding repetition and brevity to come to a decision. Original copy of the Agreement for Sale and other documents are taken into consideration for reaching in the decision.

            Be it mentioned here that the instant complaint was filed on 13/07/2018.  On several occasions complaint was absent during proceedings and was abstained from taking steps and thus a show cause notice was served to him on the fifth day of the hearing vide order no. 5, dated 26/10/2018. On the sixth hearing complainant was again absent and did not file any show cause reply thus the complaint case was dismissed for default vide order no. 6, dated 28/11/2018.  Complainant then moved before the Hon’ble SCDRC, West Bengal, and the Hon’ble SCDRC set aside the order no. 6, dated 28/11/2018 vide it’s order dated 12/06/2019 and directed this commission to restore the complaint in its original form and case number.  This Commission then proceeded with the case and again a show cause was issued to the complainant for his absence and abstaining from taking steps. This time, however, the complainant filed his show cause reply which was considered and allowed as satisfactory.  Thereafter the case comes to this point of delivering Final Order/Judgement.

Decision with reasons

To begin with, let us consider the Agreement for Sale, made between O. P. as Developer and the Complainant as Purchaser on 18/08/1996.  In this agreement we see that the land on which the proposed building was to be constructed belongs to Sri Prabir Kumar Ghosh and others and the total area of the land is said to be 18 cottah 0 Chittack 0 sq.ft. lying and situated at 136A, Bhupen Roy Road, Kolkata, morefully described in Schedule herein under.  Interestingly Schedule – A (decription of Land, B (description of flat), C (specification) and D (Common areas) left blank in this agreement.  However, in the second page of this agreement it is written as: “AND WHEREAS the purchaser has agreed to purchase Flat No. ‘3C’ on the third floor together with proportionate share of I) Undivided land situate at the said premises, II) At least 50% of the total terrace area and III) All open spaces, lobbies, staircases etc.  The Flat on the third floor having an area of 797.00 Sq. Ft. (Five hundred fifty three only) to be constructed at the said premises no. 136A, Bhupen Roy Road, Phase 2, described in the schedule hereunder written at a price of Rs.3,90,530/- (Rupees Three lacs ninety thousand five hundred thirty only)”.  Confusion arises as the area of the flat has been stated differently when it is written in digits and in word forms.  But this confusion erodes easily as this area is written as 797.00 Sq. Ft. in another two places in the said agreement and the complainant never disputes on the area of the flat, even he states it as 797 Sq. Ft. I have not found any word describing when the building would be completed and the subject flat was to be handed over to the purchaser/complainant.  However, in Paragraph – 4 of his complaint the complainant states: “That after much requests made for getting the flat registered but the respondent have not paid any heed since the year 1997, ….”  In Para-5, it is stated that: “That the complainant is in the possession of the said flat.”  This means that the building as well as the flat might be completed within 1997 and the possession of the flat had been handed over since then.  He states that he made several requests to the O. P. in this matter and sent a legal notice through his Ld. Advocate to the O. P. on 10/05/2018. But no copy of this notice has been filed regarding this matter, only a mere postal receipt dated 07/09/2018 showing wrong spelling of O. P.’s name and an incomplete postal tract report have been filed in support of his claim/demand.  However it is s settled principle that unless and until possession of a flat is given and the Deed of Conveyance is executed and registered in favour of the purchaser together with completion certificate, cause of action still persists.  So, despite repeated requests of the purchaser/complainant, the O. P. failed to execute the Deed of Conveyance till date, the complaint is, therefore, not barred by limitation.  And, the O.P. is deficient in performing his promised service to the complainant.

      Be it mentioned here that the complainant stated in the Cause Title that the O. P. Is the proprietor of M/s. Buildtech, whereas, in the Agreement for Sale dated 18/08/1996 the O. P. has been described as the partner of M/s. Buildtech.

            However, considering these above stated facts and taking into consideration the statements made in the complaint, Agreement for Sale, the Affidavit-In-Chief and the Brief Notes of Argument, I have no hesitation to say that there is a gross deficiency caused by the Opposite Party for not executing and registering the Deed of Conveyance in respect of the subject flat in favour of the complainant after delivering the possession.  There is no contrary material in this matter as the O. P. Has not participated in contesting the case.  Consequently the complainant is entitled to get relief as prayed for except his demand of heavy compensation as the complainant ought to have taken recourse of the Law much earlier.  There is no contrary material in this regard as the O. P. has not participated to dispute the case.

Hence,

          it is

          ORDERED

          That the Complaint Case No. CC/422/2018 is allowed ex parte against the O. P.

            The Opposite Party is directed to execute and register the Deed of Conveyance in favour of the Complainant and as per the Agreement for Sale dated 18/08/1996 at the Complainant’s cost within 45 days from the date of receipt of this order. 

          The O. P. is directed to pay the complainant a sum of Rs. 30,000/- as compensation and a sum of Rs. 8,000/- as litigation cost within the aforementioned time.