Date of filing : 12.04.2018

Judgment : Dt.29.03.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Subhash Barik alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Animesh Dutta, (2) Sri Dwijoy Ghosal, (3) Smt. Ebha Ghosal, (4) Smt. Sikha Dey, (5) Smt. Abha Dey and (6) Smt. Nibha Dey.

            Complainant’s case, in brief, is that OP No.2 and one Debendra Kr. Dey who was the predecessor in interest of OP No.3 to 6, were the owners in respect of the property being premises No.23/A, Diamond Harbour Road. They had acquired the same by way of separate gift deed dt.26.4.1991 executed by the Governor of West Bengal. By a development agreement dt.23.7.2001 coupled with execution of General Power of Attorney in favour of the OP No.1, OP, OP No.2 and the said Debendra Kumr Dey entered into a development agreement,  to construct a four storied building. The Complainant thus entered into an agreement dt.5.4.2002 with the OP No.1 to purchase two double bedded rooms’ flats as mentioned in the schedule B of the complaint petition at a total consideration of Rs.7,30,000/- out of which he paid Rs.2,00,000/- on the date of execution of the agreement and Rs.11,040/- by way of 48 installments. It was agreed that the possession of the schedule B property would be delivered within one year from the date of the execution of the agreement. The possession of the flat has been handed over to the Complainant on 6.10.2010 on payment of balance of the total consideration price in full to the OP No.1. But, in spite of repeated assurances the deed of conveyance has not been executed and thus the present complaint has been filed for direction upon the OPs for execution and registration of the deed of conveyance in favour of the Complainant in respect of the schedule B property/flat, to pay damages of Rs.2,00,000/- and Rs.50,000/- as litigation cost.

            Complainant has annexed with the complaint petition copy of the Development Agreement entered into between the OP No.1 with OP No.2 and Debendra Kumar Dey, copy of the power of attorney, copy of the legal notice sent to the OPs by the Complainant through his Ld. Advocate, reply sent by the OP No.1 and the copy of the agreement entered into between the Complainant and the OP No.1.

            On perusal of the record, it appears that in spite of service of notice the OPs did not take any step and thus vide the order dt.14.9.2018 the case has been directed to proceed ex-parte against the OPs.

            So the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

Decision with reason

            Complainant has claimed that he purchased two flats by way of agreement dt.5.4.2002 at a total consideration price of Rs.7,30,000/-. According to him, he has paid the entire amount. Even though he has been  delivered the possession on 6.10.2010 but the deed has not been executed in his favour. In support of his claim the Complainant has filed the copy of the development agreement entered into between the OP No.1 with the OP No.2 and predecessor in interest of OP No.2 to 5 and also the power of attorney executed by the owners in favour of OP No.1. Consequent to the same, agreement for sale dt.5.4.2002 has been entered into between OP No.1 and the Complainant. On perusal of the reply sent by the OP No.1 in response to the notice sent by the Complainant through his Ld. Advocate, it appears that the OP No.1/Developer has claimed that the Complainant has not paid the entire consideration price and an amount of Rs.8,00,000/- for the two flats are due to be paid. First of all since the case has been proceeded ex-parte there is no evidence in support of the said claim by the OP. However, as the reply has been filed by the Complainant and relied upon by him, the said claim of the OP about dues being Rs.8,00,000/- appears to be not correct. If one goes through the agreement it is categorically stated in the agreement entered between the Complainant and the OP No.1 that the consideration price of Rs.7,30,000/- was fixed for two flats. If that be so, then Rs.8,00,000/- dues cannot be correct. Complainant filed the money receipts showing the payment and also as the flat has been handed over Complainant is in possession of the two flats, suggest that the entire consideration price as agreed has been paid specially when there is no contrary materials to counter or rebut the claim of the Complainant. In such a situation, as the deed has not been executed in favour of the Complainant, there has been deficiency in service and thus the Complainant is entitled to the relief of direction upon the OPs to execute and register the deed of conveyance. However, as the Complainant has been enjoying the property since 2010, we do not find any justification to allow compensation as prayed.

            Hence

                                  ordered

            CC/190/2018 is allowed ex-parte against the OPs. OPs are hereby directed to execute and register the deed of conveyance in favour of the Complainant in respect of the B Schedule property as stated in the complaint petition, within three months from the date of this order. They are further directed to pay Rs.10,000/- towards litigation cost within the aforesaid period of three months failing which the amount shall carry interest @8% p.a. till realization.