Judgment : Dt.20.11.2017

Shri S. K. Verma, President.

            This is a complaint made by one Nandita Brahmachari, wife of Sri Prasanta Bramhachari. Residing at Ground Floor, premises No.17/2, Bose Pukur Road, P.S.-Kasba, KMC Ward No.67, Borrow-VIII, Kolkata-700 042 against Sri Banbehari Pathak, son of late Gopal Chandra Pathak, residing at G-3, 15C, Canal Street, P.S.-Manicktala, Kolkata-700 014, OP No.1, M/s Southern Enterprise, having its registered office at 20, Gariahat Road, P.S.-Gariahat, Kolkata-700 031, OP No.2, Sri Nepal Chandra Kar, son of Late Aswini Kar, residing at 77 B, R.K.Chatterjee Road, P.S.-Kasba, Kolkata-700 042, OP No.3 and Sri Santunu Kar, son of Late Aswini Kar, residing at 77 B, R.K.Chatterjee Road, P.S.-Kasba, Kolkata-700 042, OP No.4 praying for a direction upon the O.P. to execute the deed of conveyance of the flat in question measuring about 827 sq.ft., ground floor, South West Corner, lying and situated in the premises No.17/2, Bose Pukur Road, P.S.-Kasba, KMC Ward No.67, Borrow-VIII, Kolkata-700 042 and further direction upon the OP to pay a sum of Rs.5,00,000/- to the Complainant as compensation and Rs.30,000/- as litigation cost.

            Facts in brief are that Complainant in need of a dwelling house entered into an agreement of sale with Sri Banbehari Pathak, the owner of the land and M/s Southern Enterprise, having its registered office at 20, Gariaht Road, Kolkata-700 031 represented by its two partners , Nepal Chandra Kar and Santunu Kar, for purchasing a flat measuring about 827 sq.ft. super built up area in the ground floor South West Corner, situated at premises No.17/2, Bose Pukur Road at a consideration of Rs.7,64,974/-. As per the agreement, the developer was liable to hand over the possession of the flat in a habitable condition to the Complainant within October, 2003. Complainant paid the total consideration money as per schedule. After payment of the total consideration money, the developer did not show any interest for executing the deed of conveyance in favour of the Complainant. In spite of several requests, the developer always demanded more amount over the total consideration amount. Since Complainant did not pay the money demanded by the developer, the deed of conveyance was not made. Complainant took possession of the flat on 18.8.2004 and also took electric connection. But, the developer did not make conveyance deed. So, Complainant filed this case.

            OP did not contest the case by filing written version and despite service of notice. So the case is heard ex-parte.

Decision with reasons

            Complainant filed affidavit-in-chief.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            Complainant has filed Xerox copy of the agreement which was made on 9.9.2002, between Banbehari Pathak and Gopal Chandra Pathak, residing at G-3, 15C, Canal Street, P.S.-Manicktala, Kolkata-700 014, owner and M/s Southern Enterprise represented by two partners viz. Sri Nepal Chandr Kar and Sri Santunu Kar. Further, Complainant has filed copy of agreement for sale dt.6.7.2003. On perusal of the agreement, it appears that Complainant agreed with the developer for purchasing a flat measuring about 827 sq.ft. Since the allegation of the Complainant remained unrebutted and unchallenged and Complainant paid the total consideration money, he is entitled for execution of conveyance deed in his favour.

            Complainant has prayed for compensation of Rs.5,00,000/- which appears to be excessive. It is because, on perusal of the copy of the documents, it appears that there is nothing to establish that Complainant was always ready and willing to get the flat registered. Complainant himself in his complaint petition has stated that he took the possession on 18.8.2004. Since then he waited and approached this Forum after about 13 years, which reveals that the conduct of Complainant is also not appreciable. Complainant could have approached this Forum earlier where as he found that the developer was not interested in making of conveyance deed. Accordingly, Complainant is not entitled to any compensation and so he cannot be allowed compensation of Rs.5,00,000/-.

            He has prayed for litigation cost of Rs.30,000/-. Since OPs did not contest the case, Complainant may be awarded litigation cost of Rs.10,000/-.

            Hence,

ordered

            CC/375/2017 and the same is allowed ex-parte in part. OPs are directed to make conveyance deed within three months of this order in favour of the Complainant of the property mentioned in the agreement for sale. They are also directed to pay Rs.10,000/- to the Complainant as litigation cost within this period. In default, it shall be registered through this Forum and amount of Rs.10,000/- shall carry interest @ 10% p.a. from the date of this order.