Hon’ble Mrs. Soma Bhattacharjee, Member

The CC/341/2018 has been filed by Ashok Kumar Anil @ Ashok Barnwal and Rekha Barnwal u/s 11 and 12 of the C.P. Act, 1986 against OPs 1. Asit Kumar Dutta, 2. M/s Aabas Construction Company, 3. Smt. Subha Gupta, 4. Sri Arnab Gupta, 5. Miss. Shireen Gupta. On the death of respondent no. 1, his legal heirs were substituted namely 6. Smt. Ratna Dutta 7. Miss Anusua Dutta.

The complaint case in a nutshell is that the complainants had entered into an agreement for purchasing a flat as per schedule, upon payment of consideration money of Rs. 25,00,000/-.

OP no. 1 became the absolute owner of  a plot of land of about 8 cottahs 7 chittaks and 42 sq. ft. at premises no. 1B, Jadu Mitra Lane, renumbered as 12  D, Radha Kanta Jew Street, P.S. Ultadanga, Kolkata 700004. He entrusted late Goutam Gupta as the developer representing Aabas Construction for construction of a multi storied building over the said property. Development agreement was signed between the OP no. 1 and the late Goutam Gupta and power of attorney was executed in favour of the said Gautam Gupta by OP no. 1.

          On the demise of OP no. 1 Ashit Dutta, his legal heirs were substituted by means of an amended complaint petition, namely Ratna Dutta and Anusuya Dutta OP nos. 6 & 7.

The complainant submitted that at the time of the execution of the agreement for sale he paid a sum of Rs. 2,00,000/- as earnest money. Subsequently, he paid a total of Rs. 25,00,000/- which was the consideration money in full as per agreement. Copies of the money receipts are annexed with the petition as annexure B. However, the money receipts tantamount to Rs. 24,00,000/- only. Although initially the developer was reluctant to handover the possession of the scheduled flat later after much persuasions by the complainants the developer handed over the possession of the flat. However the developer / Opposite Parties have not provided the complainants any possession letter. Neither have the developer /OPs executed and registered the deed of conveyance in favour of the complainants despite receiving payment as per development agreement. This tantamounts to deficiency of service and unfair trade practice by the developer / OPs in terms of C.P. Act, 1986. The complainants have also pleaded that the KMC has requested them to apply for mutation of the said flat but they are unable to do so for want of registered deed of conveyance. The complainants have annexed copies of notice issued by the KMC.

In spite of the fact that 9 years have elapsed since the date of agreement the OPs / developer failed to register the flat as per schedule B, in favour of the complainants. The complainants sent a legal notice to the OPs on 25.01.2018 to register the deed of conveyance in respect of flat situated at premises no. 12D, Radha Kanta Jew Street, Police Station – Ultadanga, Kolkata- 700004. The complainants were compelled to lodge CC/341/2018 before SCDRC. At the time of S.R it was noticed that respondent no. 1 Ashit Kurmar Dutta had passed away. The complainants therefore filed an application for the substitution and the legal heirs, respondent no. 6 and 7 were substituted in place of Ashit Kumar Dutta.

          The developer Goutam Gupta since deceased, has also been substituted by his three legal heirs, OP nos 3, 4 and 5 viz Shubha Gupta, Arnab Gupta and Shireen Gupta.

          The complaint and amended complaint of the complainants have been considered.

          The evidences of the complainants have been appreciated. The substituted OP nos. 6 & 7 legal heirs of OP no. 1 did not appear in spite of notices being served upon the newly substituted OPs, legal heirs of the OPs neither filed written version or questionnaire on the evidence of the complainants. Thus that evidence remains unchallenged.

          The OP no. 4 Arnab Gupta has filed a written note of argument vide which he has prayed that the Commission issues a directive for registration of the property through its official machinery.

          In the written argument the Ld. Counsel for the complainant has also prayed for registration by a court officer authorised by the Commission.

          On consideration of the documents and argument it is clear that the complainants have paid consideration to the OPs on the basis of a written application. The developer has resorted to unfair trade practice by not executing and registering the deed of conveyance in favour of the complainants within due time.

          Since the original power of attorney in favour of the developer Goutam Gupta has lapsed due to demise of both the landowner Ashit Dutta and also the developer Goutam Gupta there is no alternative but to appoint a Court Officer, in other words, one Advocate Commissioner for registering the B scheduled flat and garage in favour of the complainants. This is as per relief sought by the complainants and agreed to by the legal heirs of the deceased developer.

          On thoughtful appreciation and consideration of all documents, submissions, evidence and oral and written arguments of the counsel of the complainants and OP no. 4, it appears that CC/341/2018 succeeds and is therefore allowed ex parte.

          It is ordered

          (i) Since the complainants are already in possession of the scheduled flat and garage as is seen from the notice issued by KMC to them therefore the Complainants are directed to pay the balance consideration of Rs. 1,00,000/- (Rupees one lakh only) to the OPs no. 3, 4 & 5 viz Subha Gupta, Arnab Gupta and Shireen Gupta, in equal share to all legal heirs of Goutam Gupta the deceased developer, within 60 days of this award.

          (ii) Smt. Keka Chakraborty, Advocate, Registration no. being WB/1939/2011 of Bar Council, West Bengal is hereby appointed as Advocate Commissioner who will execute and register the B scheduled flat and garage, jointly in favour of the two complainants Ashok Kumar Anil @ Ashok Barnwal and Rekha Barnwal, within 60 days of this order.

          The Advocate Commissioner will first be satisfied that the balance consideration of Rs. 1,00,000/- has been duly paid by the complainants jointly to OP nos. 3. Smt. Subha Gupta, 4. Sri Arnab Gupta, 5. Miss. Shireen Gupta. She will submit a copy of such money receipt to this Commission along with her report of registration within 60 days of this order.

          (iii) The complainants are directed to jointly pay a fee of Rs. 10,000/- (ten thousand only) in advance, to the Advocate Commissioner, Smt. Keka Charkraborty for performance of the duties assigned to her.

          (iv) The registering authority is hereby requested to dispense with the submission of the PAN and Aadhar Number etc of the Advocate Commissioner for purpose of this execution and registration.

          CC/341/2018 is hereby disposed of ex parte.

          Joint Registrar, WBSCDRC is hereby directed to contact and inform the Advocate Commissioner regarding this order.

          Free certified copies to be issued to all parties.