Order No. 14 dt. 25/07/2019
Case of the complainant in brief is that the complainant in respect of a flat entered into an agreement with the then o.p. – developer and the then o.p. – landowners on 14/09/2007. As per agreement the complainant paid Rs.10,00,000/- (Rupees The Lakhs) out of total consideration of Rs.11,17,800/- to the then o.p. – developer and accordingly, the o.p. – developer delivered the possession of the said flat to the complainant who at present is living in the said flat at Premises No. 1/2B, Ramchandra Mukherjee Lane, P.S. – Baranagar, Kolkata – 700 036. It is stated by the complainant that after receiving the possession of the said flat the complainant paid balance consideration of Rs.1,17,800/- to the sons of the deceased o.p. – developer i.e. o.p. nos. 6 & 7. Therefore, the complainant requested the o.p. nos. 6 & 7 to execute Deed of Sale in favour of the complainant but o.p. nos. 6 & 7 informed to the complainant that they were not empowered by the landowners as such they were unable to do the same. Complainant thereafter requested the same to the o.p. nos. 1 to 5 land owners but they did not do anything to that effect till date for which the complainant files this case praying for direction upon the o.ps to execute the sale of deed in respect of the flat of the complainant and to pay Rs.2,00,000/- towards compensation.
Notices were served upon o.p. nos. 1, 6 & 7 and notices were also served upon o.p. nos. 2, 3, 4 & 5 through paper publication. In spite of that o.p. nos. 2, 3, 4 & 5 did not appear in this case hence the case was proceeded ex parte against them vide order no.8 dated 22/01/2019. O.p. nos. 1, 6 & 7 contested this case by filing two separate written versions. O.p. no.1 denying all the material allegation stated in his w/v that as per Agreement for Sale dated 14/09/2007 the developers are duty bound to execute the sale deed as the dispute arose within the developer’s allocation. O.p. no.1 further stated that it is the liability of the o.p. nos. 6 & 7 to draft a copy of Deed of Sale in performance of the contract. As the o.p. no.1 is the landowner so he has no responsibility towards drafting of the said deed. Moreover, the complainant had not informed the o.p. no.1 in writing manner to the said fact. However, the o.p. no.1 has no objection regarding the execution and registration of the Deed of Sale in favour of the complainant. O.p. nos. 6 & 7, denying and disputing all the material allegation level against them, stated that they are ready to execute the said Deed of Sale but non-cooperation of o.p. no.1 they could not do the same and as such they have no deficiency in service. As o.p. nos. 6 & 7 were not negligent towards providing service, so they prayed for dismissal of the case.
Points for determination
- Whether there is deficiency in service on the part of the o.ps?
- Whether the complainant is entitled to get the reliefs as prayed for?
Decision with reasons
All points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer of the complainant argued that complainant in respect of a flat entered into an agreement with the then o.p. – developer and the then o.p. – landowners on 14/09/2007. As per agreement the complainant paid Rs.10,00,000/- (Rupees The Lakhs) out of total consideration of Rs.11,17,800/- to the then o.p. – developer and accordingly, the o.p. – developer delivered the possession of the said flat to the complainant who at present is living in the said flat at Premises No. 1/2B, Ramchandra Mukherjee Lane, P.S. – Baranagar, Kolkata – 700 036. It is stated by the complainant that after receiving the possession of the said flat the complainant paid balance consideration of Rs.1,17,800/- to the sons of the deceased o.p. – developer i.e. o.p. nos. 6 & 7. Therefore, the complainant requested the o.p. nos. 6 & 7 to execute Deed of Sale in favour of the complainant but o.p. nos. 6 & 7 informed to the complainant that they were not empowered by the landowners as such they were unable to do the same. Complainant thereafter requested the same to the o.p. nos. 1 to 5 land owners but they did not do anything to that effect till date for which the complainant files this case praying for direction upon the o.ps to execute the sale of deed in respect of the flat of the complainant and to pay Rs.2,00,000/- towards compensation.
Ld. Lawyer of the o.p. nos. 1, 6 & 7 argued that O.p. no.1 denying all the material allegation stated in his w/v that as per Agreement for Sale dated 14/09/2007 the developers are duty bound to execute the sale deed as the dispute arose within the developer’s allocation. O.p. no.1 further stated that it is the liability of the o.p. nos. 6 & 7 to draft a copy of Deed of Sale in performance of the contract. As the o.p. no.1 is the landowner so he has no responsibility towards drafting of the said deed. Moreover, the complainant had not informed the o.p. no.1 in writing manner to the said fact. However, the o.p. no.1 has no objection regarding the execution and registration of the Deed of Sale in favour of the complainant. O.p. nos. 6 & 7, denying and disputing all the material allegation level against them, stated that they are ready to execute the said Deed of Sale but non-cooperation of o.p. no.1 they could not do the same and as such they have no deficiency in service. As o.p. nos. 6 & 7 were not negligent towards providing service, so they prayed for dismissal of the case.
Admittedly the complainant entered into a tripartite agreement with the predecessor o.p. – land owner and predecessor o.p. – developer on 14/09/2007 in respect of a flat and as per agreement the complainant paid 10,000,00/- (Rupees Ten Lakhs) towards the consideration of the said flat. Subsequently the complainant requested the o.p. – developer to execute and register the Deed of Sale in his favour but unfortunately the o.p. – developer died on 28/11/2014. On perusal of the record it appears that on 17/02/2015 the complainant paid Rs.1,17,800/- to the o.p. no.7 legal heir of o.p. – developer towards the balance consideration in respect of his flat. Therefore, he requested the o.p. nos. 6 & 7 to execute the same. It further appears that the o.p. – land owner died on 19/08/2008 and his legal heirs were made party (i.e. o.p. nos. 1 to 5) in this case. Ld. Lawyer of the complainant submits that due to the death of the landowners and developer the process of execution of Deed of Sale could not be possible.
The complainant has alleged inordinate delay in respect of execution and registration of his said flat. However, in the instant case it is evident that demise of two parties of the tripartite agreement caused non registration of Deed of Conveyance. At the event of death of landowner the Power of Attorney executed in favour of developer became null and void. However, successor of the deceased landowner and deceased developer have expressed their willingness to execute the Deed of Conveyance in favour of the complainant. Under such state of affairs we find that there is gross deficiency in service on the part of the o.ps. Therefore, the complainant is entitled to get the relief as prayed for.
All the points are disposed of accordingly.
In the result the complaint case succeeds.
Hence, it is
ordered
that the CC/178/2018 is allowed on contest against the o.p. nos. 1, 6 & 7 with cost and is allowed ex parte against o.p. nos. 2, 3 & 4 with cost. O.p. – landowners are directed to execute and register the Deed of Conveyance in favour of the complainant and the o.p. – developers are directed to take part so that the execution and registration of the flat are to be materialized within 60 days from this date of order. . O.ps are jointly and severally directed to pay Rs.4,000/- (Rupees Four Thousand) only towards compensation for harassment and mental agony and Rs.4,000/- (Rupees Four Thousand) only towards litigation cost to the complainant only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
