Samaresh Kr. Mitra, Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Rupa Roy. The case of the complainant’s in short is that she intends to purchase a complete garage situated at the ground floor of a newly constructed multi-storied building namely “SHEENIKETAN APARTMENT” and approached the developer, opposite party No.1 and executed an agreement for sale by paying a sum of Rs.40000/- on 01.08.2008. Later on she paid a sum of Rs.30000/- on 15.04.2009 and a sum of Rs.10000/- on 15.04.2010. So she paid Rs.80000/- in total. After completion of the construction work the opposite party No.1 delivered the said garage and the complainant is using the garage since then. After passing year the complainant approached the opposite party No.1 to execute deed of conveyance in favour of the petitioner but in every occasion the opposite party bypassed to execute the deed of conveyance so the complainant served advocate notice but in reply the opposite party No.1 tried to escape his liability accusing the landowners. The opposite party No.1 in his reply stated that he is helpless regarding the registration of deed of conveyance due to noncooperation of land owner as the landowner are nonavailable for registration of deed of conveyance but he is ready to do the same. As a result the complainant suffered huge monetary loss due to gross negligence and deficiency of service of the opposite party No.1. So the complainant being a consumer filed the instant complaint petition before this Forum praying direction upon the opposite party No.1 to execute the registration of deed of conveyance in favour of the petitioner and to pay a sum of Rs.20000/- as compensation and a sum of Rs.10000/- as litigation cost.
The opposite party No.1 appeared and by filing written version denied the allegations and averred that opposite party No.1 entered into an agreement with the petitioner on 1st September, 2008 regarding the purchase of one garage and the petitioner paid the amount as per agreement. The answering opposite party No.1 handed over the possession on 15.03.2013 but the deed of conveyance has not been executed. The opposite party No.1 requested so many time all the owners to come and to execute the deed of conveyance in favour of petitioner but the landowner did not pay heed as a result he could not execute the deed of conveyance in favour of the petitioner. The opposite party No.1 is ready to execute the deed of conveyance in favour of the petitioner but the landowners are non cooperative regarding executing the deed of conveyance.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition.
Both sides files written notes of argument which are taken into consideration while passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Rupa Roy is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Rupa Roy is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned garage, so she is entitled to get service from the opposite party as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.1,20,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that she intends to purchase a garage situated at the ground floor of a multi-storied building namely “SHEENIKETAN APARTMENT” and accordingly there was an agreement between the petitioner/purchaser and the developer i.e. NIRMAN on 01.08.2008 in respect of purchase of a garage having super built up area 157 sq ft including proportionate share of common portions on the ground floor of the building namely SHEENIKETAN APARTMENT at holding No.85, R.S. Khatian No.155, J.L.No.1, Mouza – Chandannagar, District.-Hooghly. Subsequently the complainant paid a sum of Rs.80,000/- in total out of consideration money of Rs.90,000/- in total and complainant is in possession since completion of construction. The dispute cropped up in between the parties when the opposite party No.1 avoided to execute the deed of conveyance in favour of the complainant inspite of several reminders of the complainant. In his written version the opposite party No.1 took the plea that due to non-availability of the landowners he could not register the garage in favour of the complainant. Despite receiving notice opposite party No.2-7 did not turn up and filed no written version so the proceeding run ex-parte against them. The opposite party No.1 admitted the case of the complainant but he could not register the same in absence of the landowners.
The petitioner sent legal notice through her Ld. Advocate on 24.8.2015 to the owner requesting him to complete the transaction as early as possible and inform the petitioner the date and time for execution and registration of sale deed within 15 days. Dispute cropped up when the opposite party failed to response at the utterance of the complainant. Getting no alternative the complainant filed the instant complaint case before this Forum praying direction upon the opposite party to execute the deed of conveyance in favour of this complainant, compensation for harassment and mental agony & litigation cost.
The opposite party No.1 admitted the case of the complainant in their written argument that opposite party No.1 entered into an agreement with Sri Arun Kumar Khan &ors on 17.08.2001 the owner of the property to develop and construction of multistoried building on the property situated at holding No.85, R.S. Khatian No.155, J.L.No.1, Mouza – Chandannagar, District.-Hooghly. They also admitted that there was an agreement in between the complainant and the developer in respect of purchase of a garage at a consideration of Rs.90,000/-. It is also admitted that the petitioner paid a sum of Rs.80,000/- in total out of consideration money amounting to Rs.90,000/- to the developer for the said garage and the developer delivered possession of garage and since then the petitioner is enjoying the possession.
After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainant paid the consideration money during agreement for sale and after completion of garage paid agreed value and in possession since then. Dispute cropped up when the opposite party No.1 to 7 failed to execute ®ister the deed of conveyance then the complainant filed the instant complaint petition praying direction upon the opposite party to execute and register the garage which has been specifically mentioned in schedule. It is crystal clear that owners has allegation against the developers regarding the owners allocation but the case filed by the complainant praying reliefs against the opposite party including the owner for getting his garage executed & registered by the opposite parties.
The opposite party No. 1 in his written version and written notes of argument admitted that he has taken the value of the garage from the complainant in different times and gave possession to the complainant so he is under liability to execute and register the sale deed in favour of the complainant but fact remains that the landowners are not willing/ available to execute and register the deed of conveyance. Delay of execution & registration of deed of this complainant caused due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to this complainant.
It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of them but it remained unheeded. The O.P. no.1 tried to evade his responsibility by putting blame on O.P. No.2 to7.
Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties. So we may safely conclude that the opposite party No.2 to 7 are also responsible to execute the deed of conveyance in favour of the complainant.
Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in her favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainant is in possession considering the loss suffered by her, she is entitled to compensation of Rs.10,000/- from the opposite parties No.1.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned garage by adducing cogent document/evidence so the prayer of the complainant is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.
4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.
ORDER
Hence, ordered that the complaint case being No.155/2018 be and the same is allowed on contest against the opposite party No.1 and exparte against opposite No 2 to7 with a litigation cost of Rs.6000/- to be paid by the opposite party No.1.
The Opposite Party No. 1 to 7 are directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.
The Opposite Party No.1 is directed to pay compensation amounting to Rs.10,000/- to the complainant for mental pain and agony within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
