DATE OF FILING                    :     04.09.2014.

DATE OF S/R                            :      26.11.2014.

DATE OF FINAL ORDER      :     05.02.2016.  

Mrs. Chaitali Banerjee,

w/o. Tapan Kumar Banerjee,

residing at 2A, Dakshin Para Bye Lane,

P.O. Bansberia, P.S. Mogra,

District Hooghly………………...………………………………………….. COMPLAINANT.

• Versus   -

1.         Sri Anil Pandey,

            son of Sri Dinanath Pandey,

            residing at 13, Watkins Lane, P.S. Golabari,

            District Howrah,

            PIN 711 101.

2.         Debashis Bhattacharjee,

            son of late Hemchandra Bhattacharjee,

            residing at ‘Sagarika’ flat no. F4, 15, G.T. Road ( old ), Bally,

            District Howrah,

            PIN  711 201. ……..………………………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. Complainant, Chaitali Banerjee, by filing a petition U/S 12 of the C. P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to execute and register the deed of conveyance in respect of flat being no. 1C, ‘Hemangan’ 187,  G.T. Road, P.O. & P.S. Bally,  in favour of the petitioner, to pay Rs. 1,00,000/- as compensation for mental agony and harassment and litigation costs  along  with other relief or reliefs as the  Forum may deem fit and proper. 

2. Brief facts of the case is that o.p. no. 1, developer, entered into   a Development Agreement dated 14.8.2000 with the Prakriti Rani Devi, since deceased, land owner, to construct a multi storied building at the schedule premises of 187, G.T. road, P.O. & P.S. Bally, Howrah.   By virtue of that Development Agreement and General Power of Attorney  executed in favour of o.p. no.1 by the said Prakriti  Rani Devi, vide Annexure ‘A’, the complainant  entered into an Agreement for Sale dated 21.01.2003 vide Annexure ‘C’  with the o.p. no. 1/ developer  to purchase a flat measuring 503 sq. ft. ( 1^st  floor ) @ Rs. 625/- per sq. ft. at a consideration of Rs. 3,20,625/- at the said building  and paid Rs. 3,16,953/- through different installments.  In addition to that complainant paid Rs. 3,672/- to the o.p. no. 1 / developer. So the complainant Rs. 3,20,625/- in total to the o.p. no. 1 although as per Agreement for Sale dated 21.01.2003 , complainant was required to pay Rs. 3,14,375/ for the said flat. Accordingly the claim of the complainant is to get refund of  Rs. 2,578/-  from o.p. no. 1 is also to be considered. The o.p. no. 1 delivered possession of the flat being no. 1C ‘Hemangan’ 187, G.T. Road, P.O. & P.S. Bally, Howrah, to the complainant and since then she had been residing with her family peacefully but registration of the flat in question was not done. Subsequently the land owner, Prakriti Devi, expired leaving her son, o.p. no. 2, the legal  heir.  Complainant requested the o.p. no. 1 for several times for executing the deed of conveyance   but o.p. no. 1 did not pay any heed. After that complainant sent an advocate’s letter dated 01.10.2013 vide Annexure ‘D’  to the o.p. no. 1 requesting him to take positive steps but till date no action has been taken. Being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.          

3. Notices were served. Both the o.ps. appeared and filed written version. Accordingly, the case was heard on contest against the o.ps.

4. Upon pleadings of both parties two points arose for determination :

1. Is there any deficiency in service on the part of the O.Ps.  ?

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

DECISION  WITH   REASONS      :

5. Both the points are  taken up together for consideration. We have carefully gone through the written versions of both the o.ps. along with the documents filed by both, complainant as well as o.ps. It is the specific plea taken by o.p. no. 1 that as per the terms and conditions of the agreement for sale dated 21.01.2003, complainant was given possession of the schedule flat on 10.10.2003 vide Annexure Possession letter dated 10.10.2003 annexed by o.p. no. 1. And as Prakriti Rani Debi expired in the mean time, General Power of Attorney, so conferred by Prakriti Rani Debi, land owner, since deceased, in favour of o.p. no. 1, developer, also lost its validity although she revoked the said power of attorney by a revocation of power of attorney dated 07.04.2005. Accordingly the o.p. no. 1 is not in a position to execute and register the sale deed in favour of the complainant. So there is no deficiency in service on his part. On the other hand, the main grievance of o.p. no. 2 being the legal heir of Prakriti Rani  Debi, since deceased, that o.p. no. 1 has not yet delivered the possession of the owner’s allocation after due completion in all respects. Moreover, o.p. no. 1 has constructed some shops and office rooms at the entire ground floor of the said building for commercial purpose. So the revocation of power of attorney dated 07.04.2005 was done by said Smt. Prakriti Rani Debi, since deceased.     And as o.p. no. 2 has not received a single farthing from the complainant with respect to the schedule flat, no question of deficiency in  service arises on the part of o.p. no. 2 to the complainant.  Here we take a pause. Should an intending purchaser think of all these aspects while purchasing a flat for residential purpose from a developer ? Complainant entered into an agreement for sale with respect to a residential flat with o.p. no. 1 on payment of an advance amount and she also paid more than the consideration amount. The ownership of a flat comes to its existence only when deed of conveyance was executed and registered in favour of the purchaser.  Here  in this case complainant is in possession of the said flat since 10.10.2003 but the entire procedure has remained in a incomplete condition which really caused severe mental , physical and financial loss to the complainant. It is well understood that the cost of registration involving government stamp duty has enormously increased today since 2003. Who will bear this abnormal extra cost ? Thereby complainant is really and highly prejudiced by the severe negligence on the part of both o.ps. Because on the basis of development agreement dated 14.8.2000 entered into between the o.ps., complainant paid the entire amount of Rs. 3,20,625/- to o.p. no. 1 for purchasing a residential flat. The complicated relationship between the o.ps. has restrained the complainant to enjoy the complete ownership of the flat for no fault on her part. Why complainant should suffer at all for an indefinite period ? The o.p. no. 1 should have taken positive initiative to resolve the problem between him and o.p. no. 2 so as to execute and register the sale deed in favour of the complainant in 2003 itself as o.p. no. 1 received the entire consideration amount from the complainant.   Accordingly,  we are of candid opinion that it is a fit case where the prayers of the complainant should be allowed. Points under consideration are accordingly decided.

In the result, the application succeeds.

Court fee paid is correct.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 487 of 2014 ( HDF 487 of 2014 )  be  allowed on contest with  costs  against  the O.Ps. 

      That the  O.Ps. are jointly and severally directed to execute and register the sale deed in favour of the complaiant with respect of the flat in question within one month from the date of this order i.d., Rs. 50/- per day shall be imposed upon them till actual registration of the deed of conveyance.

      The complainant is to bear the cost of registration.

      The complainant do get an award of  Rs. 25,000/- as compensation and Rs. 5,000/- as litigation costs from o.p. no. 1 and o.p. no. 1 is directed to pay the amount of Rs. 30,000/- within one month from the date of this order i.d., it shall carry an interest @ 8% till actual payment.         

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

       Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

  (    Jhumki Saha)                                              

  Member, C.D.R.F., Howrah.