This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant was in search of residential accommodation and came to know that the opposite parties by entering into a Joint Venture Agreement started construction on the premises no. 32, Chowdhury Para Street, Post & P.S. Uttarpara, Dist: Hooghly-712258, the said premises is measuring more or less 7 Cottahs- 01 Chattaks- 29 Sqfts. Under the Uttarpara Kotrung Municipality, comprising in R.S. Dag No. 1904/2124 Khatian No. 238, C.S. Dag no. 1904, Khatian no. 832, corresponding to L.R. Dag no. 2314, Khatian no. 535/1, 535/2, 535/3, 535/4, 536/1, 536/2, 536/3, 537/1, 537/2, 537/3, 537/4, and 537/5, J.L. no. 12, R.S. No. 1766 Mauza & P.S. Uttarpara, Dist. Hooghly and the said joint development agreement was executed between the opposite party no. 1 and the opposite party nos. 2 to 14 on 24.4.2004 for construction of the residential building at premises no. 32, Chowdhury Para street, P.O. & P.S. Uttarpara, dist. Hooghly-712258, over the land areas of 7 Cottahs – 01 Chattaks – 29 Sq.ft and the opposite party nos. 2 to 14 being the owners of the land property have also executed power of attorneys in favour of the opposite party no. 1 giving him full authority by the owners to get the sanction plan duly passed by the Uttarpara Kotrung Municipality to construct the proposed building thereon and selling Rights of the Developers Allocation in the proposed building and after construction of the proposed building thereon the said land and thereafter the complainant approached to the opposite party no. 1 for purchasing one flat on payment of consideration money and the Xerox copy of said Joint Development Agreement dt. 24.4.2004 and the copies of Power of Attorneys executed by the owners of the land in favour of the Developer on various dates are filed herewith and accordingly an agreement for sale dt. 1.8.2005 was executed by and between the complainant and the opposite party no. 1 for purchasing one self contained flat measuring about 605 Sq.ft. approx with super built up area in the (North & South Corner) consisting of 2 bed rooms, 1 kithchen, 1 toilet, 1 varandah and 1 living cum dining hall on the 1^st floor, block D, at premises no. 32, Chowdhury para Street, P.O. & P.S. Uttarpara, Dist. Hooghly-712258 at a consideration of Rs. 4,38,625/- and the opposite party no. 1 is selling the said flat out of the share of the developer’s allocation as per the Joint Development Agreement dt. 24.4.2004 and the Xerox copy of said agreement for sale dt. 1.8.2005 is filed herewith and after execution of the said sale agreement the complainant had paid the entire consideration money to the opposite party no. 1 and after completion of the building said opposite party no. 1 being the Developer had delivered the said booked flat being no. 202 on the 1^st floor of said premised by issuing the possession letter dt. 14.5.2006 in favour of the complainant.

The complainant also states that after receipt of the said possession letter dt. 14.5.2006 in respect of the said flat, the complainant is in possession of the said flat and is paying all maintenance and allied charges and is also paying the municipal tax for the said flat as being the occupier thereof and the Xerox copy of said possession letter dt. 14.5.2006 is filed herewith and in the aforesaid agreement for sale dt. 1.8.2005 there was no specific time frame mentioned for the registration of a valid Deed of Conveyance in favour of the complainant by the opposite party no. 1 and as such the said agreement for sale dt. 1.8.2005 is an open agreement and at any point of time upon demand and ir request by the complainant the opposite party no. 1 being the Developer and Constituted Attorney shall be liable and bound to execute a valid deed of conveyance in favour of the complainant in respect to the said flat and after payment of the entire consideration money as well as after getting the possession letter of the said flat the complainant repeatedly requested the opposite party no. 1 being the Developer of execution the sale deed but every time the said opposite party avoided the complainant willfully and failed to execute a Registered Deed of Conveyance till date by taking various types of pleas and lastly the opposite party no. 1 assured and promised the complainant that he will execute the sale deed by the end of May, 2017 and the complainant is ready with all the required funds towards expenses for getting the Registration of the sale deed of the said flat but even after making of such Assurances and promises by the opposite party no. 1 being the Developer he is not putting any heed to cause the Registration of the Sale Deed in favour of the complainant in respect to the said flat till date, the reasons, motives and desires are best known to the opposite parties and till date the opposite parties failed to act positively to the request of the complainant and the complainant is suffering hardship due to non-execution of a valid sale deed in favour of the complainant in respect to the flat and the complainant is harassed by the opposite parties by not providing satisfactory reply regarding Registration of a valid sale deed in favour of the complainant in respect to the flat by end of the month of May, 2017.

The complainant also state that thereafter the complainant sent a legal notice dt. 10.6.2017 through his ld. Advocate upon the opposite parties calling upon then and direct the opposite party no. 1 to execute a valid deed of conveyance in respect to sale of the aforesaid flat unto and in favour of the complainant within 15 days of receipt of the said notice, the said notice was served upon the opposite party no. 1 on 12.6.2017 and the postal envelopes containing the said notice upon opposite party nos. 2 to 14 were returned back with the postal peon’s remark “Left” with date 12.6.2017 and 13.6.2017 respectively, but the A/D card for the service upon opposite party no. 1 was not returned so as such the complainant got the information through speed post track report that the opposite party no. 1 got the service of the notice on 12.6.2017 and the Xerox copy of legal notice, postal receipts, returned envelops and the track report are annexed hereto and the opposite party no. 1 received the notice on 12.6.2017 even though did not turn up to effect the execution of a valid deed of conveyance in favour of the complainant and because of such negligent attitude of the opposite party no. 1 in execution the registration of a valid sale deed of the said flat in favour of the complainant and the cause of action of the instant case has arisen on 1.8.2005 when the sale agreement was executed and it again arose on 14.5.2006 when the opposite party issued the possession letter and delivered the possession of the flat to the complainant and lastly it arose on 12.6.2017 when the legal notice dt. 10.6.2017 was served upon the opposite party no. 1 and thereby he visited the complainant and assured that he will execute the deed of conveyance very soon but till the date of filing of this case the opposite party no. 1 did not put any heed to effect the registration of the deed of conveyance and have completely neglected and/ or ignored the requests made by the complainant and such cause of action is continuing day to day and any delay in filing of this case is observed by this ld. Forum, the same may kindly be condoned as the sale agreement dt. 1.8.2005 wherein no specific date or time for executing of the registered deed of sale is mentioned so the said agreement for sale may be treated as an open agreement and the same is still exists and is still operational.

Complainant filed the complaint petition praying direction upon the opposite parties to admit and register the complaint and to issue notice upon the opposite parties calling upon them to show cause and to direct the opposite party no. 1 to execute a deed of conveyance in respect to the flat as described herein to direct the opposite parties to compensate for mental agony, harassment and financial losses to the tune of Rs. 1,00,000/- and to pay Rs. 50,000/- for award cost and to pass such other or further orders or awards are made as this ld. Forum may deem fit and proper.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires 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 here in is a consumer of the opposite parties.
2. Both the complainant and the opposite parties are residence/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 2,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The complainant states and alleges that the complainant was in search of residential accommodation and came to know that the opposite parties by entering into a joint venture agreement started construction on the premises on 32, Chowdhury para sheet P.O. + P.S. Uttarpara, Dist. Hooghly and the said joint development agreement was executed between opposite party no. 1 and the opposite party nos. 2 to 14. The said premises is measuring more or less 7 cottahs 01 chattaks 29 sq.ft. and accordingly an agreement for sale dt. 1.08.2005 was executed by and between the opposite party no. 1 (as being the developer attorney and the complainant purchased a flat measuring about 605 sq. ft.  approx at a consideration of Rs. 4,38,622/-. The opposite party no. 1 selling the said flat out of the share of the developers allocation as per joint development agreement dt. 24.04.2004 and thereafter according to the sale agreement the complainant paid entire consideration to the opposite party no. 1. The opposite party no. 1 being the developer delivered the booked flat by issuing the possession letter dt. 14.05.2006 and the complainant after getting the said possession letter the complainant is paying all maintenance and allied charges and also paying the municipal tax for the said flat as being the occupier thereof.

The dispute cropped up when the complainant paid the entire consideration money requested the opposite party no. 1 being the developer for executing the sale deed but every time the said opposite party willfully avoided and failed to execute registered deed of conveyance by taking various types of pleas and easily the opposite party no. 1 assured and promised to execute deed of conveyance by end of May 2017 in favour of the complainant. But even after making such assurance the opposite party no. 1 is not putting any heed to cause the registration of the sale deed in favour of the complainant. Having no other way the complainant filed this case for deficiency of service on the part of the opposite party no. 1. The complainant also sent notice to the opposite party nos. 1 to 14 through his ld. Advocate upon the opposite parties and on 12.06.2017 and the notice served upon opposite party nos. 2 to 14 were returned back with postal remarks “left” with date 12.06.2017 and 13.06.2017 respectively. But the complainant through speed post send notice to the opposite party no. 1. Opposite party no. 1 received the said notice on 12.06.2020.

The complainant states in his evidence on affidavit that despite receiving notice the opposite party no. 1 did not turn up. Complainant files paper publication in respect of notice to opposite party nos. 2 to 14 but opposite party nos. 2 to 14 did not appear and failed to file W/V. Another opportunity given to the opposite party nos. 2 to 14 to file W/V i.d. evidence by complainant. The opposite parties failed to file W/V. Complainant files evidence on affidavit and proceeding runs ex parte against the opposite parties. The complainant states that due to inaction of the opposite party no. 1 the complainant compelled to file the instant complaint case before this Forum.

The opposite party no. 1 did not appear and failed to file W/V on the date fixed. So, the proceeding runs ex parte against the opposite party no. 1.

It is hold that the complainant has been proved the deficiency of service against the opposite parties. In this connection to prove the case Xerox copies of documents have been filed by the complainant such as

1. Evidence on affidavit.
2. Copy of said Joint Development Agreement dt. 25.4.2004 and the copies of Power of Attorneys Executed by the owners of the Land in favour of the Developer.
3. The original Agreement for Sale dt. 1.08.2005.
4. Possession Letter dt. 14.05.2006.
5. The copy of Legal Notice, Postal receipts, returned envelops and the Postal track reports.

            From the above document it transpires that in this case despite receiving summons the opposite parties did not appear to challenge the case of the complainant as alleged. The uncontested and unchallenged testimonials of the complainant prove the case of the complainant.

Hence,

it is

ordered

that the complaint case being no. 162 of 2017  be and the same is allowed ex parte against the opposite parties.

            The opposite party no. 1 to 14 are directed to execute a deed of conveyance in favour of the complainant in respect of the said flat as described in the schedule A i.d. the deed of conveyance will be registered by the office of D.C.D.R.C, Hooghly.

            The opposite party no. 1 is directed to pay Rs. 30,000/- for mental pain and agony and harassment to the complainant.

            The opposite party no. 1 is further directed to pay compensation of Rs. 10,000/- for non performance of their duty/ service.

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 and necessary action.