Hon’ble Mr. Ajeya Matilal, Presiding Member
Today is fixed for final hearing. The Ld. Advocate for the complainant is present. None appears for the Ops. So, the case do proceed ex parte against all of them.
This is a case u/s 12 of the C.P. Act, 1986 valued at Rs. 23,00,000/-.
The fact of the case is in short like that the complainant Ranjan Kumar Purakayastha was a tenant in respect of two rooms, one kitchen two baths and previes two varandahs with all other common facilities on the 1st floor of a two storied building at premises no. 57 S.N Banerjee Road Kolkata 700014 under OP nos. 1 to 6 being the landlords. The OP nos. 1 to 6 were joint owners in respect of A schedule property of the complaint. Subsequently, the OP nos. 1 to 6 and 7 to 11 entered into a development agreement dt. 31.03.2011 and a power of attorney at the office of the A.D.S.R Sealdah recorded in book no. 4 volume 1 page 5031 to 5044 vide deed no. 00489 of 2011 annexure A. Subsequently, after demise of Raghunath Ghosh and Bela Ghosh being two of the erstwhile owners, a supplementary development agreement was executed on 09.01.2013 annexed as annexure B of the complaint and a power of attorney has also been given by the OP nos. 1 to 6 in favour of one Fayaz zia OP no. 8 which was also registered as annexure B.
Subsequently, an agreement for sale was executed on 22.05.2013 between the complainants and Ops, being annexure E in respect of B schedule property of the compliant. At the time of agreement for sale the complainants paid Rs. 3,00,000/- vide cheque no. 979827 dt. 22.05.2013. As per agreement for sale the total consideration of Rs. 13,00,000/-. Subsequently, by 6 different cheques drawn on SBI Amherstreet Branch on various dates Rs. 8,00,000/- in total were paid to OP no. 8 being the Power of attorney of M/s. Limra Construction. It was agreed upon between the parties as per agreement for sale that the OP no. 8 shall deliver the possession of the flat within 26 months from the date of execution of agreement for sale. On 18.09.2015 the OP no. 7 handed over the possession of the flat in an unfinished and inhabitable condition to the complainant. As the flat was incomplete so the complainant served a demand notice through his advocate to the all Ops. The postal receipts in this context are also enclosed with the complaint.
In spite of receiving the said notice, the OPs did not take any steps so the complainant filed this case with a prayer for execution of the deed of conveyance and registration of the said flat after payment of balance consideration money of Rs. 5 lakh by the complainant. The cause of action arose firstly on 22.05.2013 i.e. on the date of execution of agreement for sale and also subsequently.
In the W.V the OP no. 7 and 8 denied the material allegation of the petition of complaint. It is also alleged by them that the complainant forcibly compelled the OP nos. 7 and 8 to execute the agreement for sale. The OP nos. 9 to 12 stated that their partnership firm was dissolved on 15.12.2014, but the agreement for sale was executed on 22.05.2013. So we are of the view all the partners have liabilities in this regard. So the OP nos. 7 and 8 could not absolve their liabilities.
Although the aforesaid Ops filed W.V but they did not contest the case subsequently.
The complainant filed evidence on affidavit. Against the same questionnaire was filed by OP no. 8. The complainant gave reply.
We have already discussed about the documents annexed by the complainant including development agreement, power of attorney, agreement for sale, supplementary development agreement, demand notice. It appears that the complainant paid a part consideration amount and the Ops concerned did not fulfil their contractual obligations. Furthermore, the evidence adduced by the complainant in their affidavit in chief was not shaken by cross examination. So, it appears from the discussion that the complainant is a consumer and there is a deficiency in service on the part of the Ops, and there is also cause of action because they did not fulfil their obligation. So, the complainant is entitled to relief as prayed for.
So the case succeeds.
Hence it is ordered
The CC/195/2018 is allowed ex parte against all the Ops with a litigation cost of Rs. 15,000/- payable by the OP nos. 7 & 8 to the complainant. The OPs are directed to execute a deed of conveyance and register the same in respect of B schedule property of the complaint after making it habitable within 60 days from this order on payment of balance consideration amount of Rs. 5,00,000/- to the OP nos. 7 and 8 along with compensation of Rs. 2,00,000/- within the said period and the OP nos. 7 and 8 are directed to obtain a completion certificate in respect of the flat in question and handover the same to the complainant. If the compensation is not paid within that period it shall carry interest @ 9% p.a. from this date till payment of entire amount of compensation.
