FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The brief fact of the case is that OP 4 Sri Banbehari Pathak is the owner of a land measuring about 04 cottahs 08 chittacks with structure at KMC Premises No. 17/2, Bose Pukur Road, PS Kasba, Kolkata – 700042 who had entered into a Joint Venture Agreement dated 18.02.2004 with the OP 1 M/s. Southern Enterprises for construction of a 04 storied building. OPs 2 & 3 are the partners of OP 1 M/s. Southern Enterprises. OP 4 has also executed a Power of Attorney in favour of the OPs 1 to 3. Complainant is an old aged widow and she intended to purchase a flat measuring about 848 sq. ft. super built up area on the ground floor of the proposed building. In this regard she approached the OP 1/Developer and the Developer Firm assured the complainant to sell a flat in the proposed building. An Agreement for Sale dated 18.02.2004 has been executed between the complainant and OP 1. Total sale price has been fixed for Rs. 7,50,000/-. Complainant has paid advance amount of Rs. 2,00,000/- on the date of execution of the Agreement for Sale to the OP 1/Developer. Complainant has also paid balance sale price of Rs. 5,50,000/- to the OP 1 on different dates against proper receipts. OPs 1 to 3 promised to handover physical possession of the booked flat within 12 months from the date of execution of the Agreement for Sale. Ultimately, the OPs 1 to 3 handover physical possession of the booked flat to the complainant in the month of September, 2013 after delaying 104 months. Despite several request, the OPs did of execute and register Deed of Conveyance of the booked flat in favour of the complainant. Draft copy of sale deed has been sent to the OPs for their approval. OPs 1 to 3 have failed to approve the Sale Deed. On the contrary, the value of the flat is enhancing. There is gross negligence and deficiency in service on the part of the OPs. Having no other alternative, the complainant knocked at the door of the commission for getting relief or reliefs against the OPs.
Despite service of notice of the complaint, the OPs did not turn up to contest the case. No Written Version is filed by the OPs. Thus, the case runs ex-parte against the OPs.
The Ld. Advocate for the complainant argued that there is a clear gross negligence and deficiency in service on the part of the OPs as in spite of full payment of consideration amount to the OP 1/Developer, they did not execute and register Deed of Conveyance of the flat though possession has been delivered after delaying 104 months violating the terms & conditions of the Agreement for Sale. There is no possibility on the part of the OPs to execute and register Deed of Conveyance of the flat in favour of the complainant. Thus, the Ld. Advocate for the complainant has prayed for direction upon the OPs to execute and register Deed of Conveyance of the flat and also to pay damages of Rs. 12,00,000/-.
Heard the Ld. Advocate for the complainant. Considered her submission. Perused the E/chief of the complainant coupled with complaint petition along with its annexure thereto.
Before explaining the other issues involved in the complaint case, we try to decide whether the complainant is a “consumer” within the purview of Consumer Protection Act, 2019 and whether there is any gross negligence or deficiency in service on the part of the OPs.
On bare perusal of the Agreement for Sale dated 18.02.2004, we find that the sale price of the flat is Rs. 7,50,000/-. It is clear from the money receipts that the complainant has already paid the entire sale price to the OP 1/Developer. Therefore, the complainant comes well within the purview of the definition of the “consumer” as per Consumer Protection Act, 2019.
It is pointed out that despite service of notice of the complaint, no Written Version has been filed by the OPs within the statutory period U/s 38(3)(a) of the CP Act, 2019. Thus, the allegations stated in the complaint remains unchallenged. Therefore, we can safely state that on failure to file WV by the OPs tantamount to admit the allegations stated in the complaint petition. Legal notice dated 15.11.2019 clearly reveal that there is continuous negligence and deficiency in service on the part of the OPs. Clause No. 8 of the Agreement for Sale dated 18.02.2004 clearly speaks that the OPs promised to handover physical possession of the booked flat within 12 months from the date of execution of the agreement. In violation of the said clause, OPs handover possession of the flat to the complainant in the month of September, 2013 delaying 104 months. As a result, complainant had incurred rent for her earlier accommodation. Complainant has claimed damages of Rs. 12,00,000/- from the OPs. To substantiate the rent amount of her earlier accommodation, no document is produced on record. Thus, we are of the opinion that the complainant is not entitled to get damages of Rs. 12,00,000/- from the OPs as rent of her earlier accommodation.
On perusal of clause No. 11 of the Agreement for Sale dated 18.02.2004, it is clear that the OPs have undertook responsibility to execute and register Deed of Conveyance of the flat in favour of the complainant on payment of entire sale price. It is clear that complainant has paid the entire sale price and the OP 1/Developer handed over physical possession of the booked flat to the complainant. The OPs failed to execute and register Deed of Conveyance of the flat despite several request and demand notice dated 15.11.2019. It is very unfortunate that the OPs failed to comply clause No. 11 of the Agreement for Sale. It is not our expectation that the complainant by any means suffers any loss and time for the breach of the agreement on the part of the OPs. Under the above fats and circumstances, the gross negligence and deficiency in service on the part of the OPs is proved.
In the light of the above discussion, the complaint is partly allowed with the following directions:-
- OPs are directed to execute and register Deed of Conveyance of the flat measuring about 848 sq. ft. super built up area on the ground floor (South East side) at the KMC premises No. 17/2, Bose Pukur Road, PS- Kasba, Kolkata-700042 along with proportionate share of land with all common facilities in favour of the complainant.
- OPs 1 to 3 are directed to pay Rs. 10,000/- (Rupees ten thousand) only to the complainant towards litigation cost.
- The aforesaid direction shall be complied within a period of 30 days from today failing which the complainant may file Execution Application under sections 71 & 72 of the Consumer Protection Act, 2019 against the OPs.
- Complainant is to bear the cost of registration fees, stamp duty and other incidental charges.
Copy of the judgment be supplied to the parties as per rules. Upload this order on the website of this commission immediately for perusal of the parties.
