Dt. of filing- 06/09/2018

Dt. of Judgement- 18/04/2019

Mrs. Sashi Kala Basu, Hon’ble President.

        This complainant is filed  by the complainants  namely  Jayanta Sarkar  and Supriya Sarkar  under Section 12 of the Consumer Protection Act against the  Opposite Parties  namely ( 1) Gautam Roy (2) Saugata Dey (3) Sukumar Das (4) Shri Dulal Das (5) Biplab Das (6) Smt. Krishna Mitra (7) Smt. Archana Das and (8) Smt Annya Das alleging  deficiency in rendering service  on their Part.

          Complainant’s case in short is that OP Nos. 1 & 2  are the developers. A development agreement was entered into  on 10.07.2008 between the OP Nos. 1 & 2  and OP Nos. 3 to 6  and the predecessor  of OP Nos. 7 & 8. OP  Nos. 3 to 8  are the owners of the land. The development agreement  was entered into  to construct a multi-storied  building at the landed property of the owner’s  being KMC  Premises No. 349/350, Netaji Subhash Chandra Bose Road, locally known as 7/4, Neaji Nagar Colony within  Police Station – Jadavpur, now Patuli. A Power of Attorney was also executed and registered by the owners in favour of the developer/OP Nos. 1 and 2. The complainant entered into an agreement for sale on 20.01.2011 with the OP Nos. 1 and 2 to purchase a flat measuring more or less 550 sq.ft. on the 3^rd floor, North East facing  at a consideration price of Rs. 7,50,000/-. Complainant  has  paid the entire consideration price  by way of  cash and cheque to the OP Nos. 1 and 2 on different dates  who subsequently handed over   possession of the said flat to the complainants  by possession letter  dated 20.07.2012  but inspite of handing over the  possession, the deed of conveyance  has not been executed in favour of the complainant inspite of repeated request. Thus this complaint has been filed for  directing the OPs to execute and register the deed of conveyance in favour of the  complainant   in respect of the flat  described  in schedule as agreed, to pay  Rs. 1,50,000/- as compensation and Rs. 50,000/- as litigation cost.

          Complainant has annexed with the complaint petition,  Copy of the development agreement entered into between the OP Nos. 1 and 2 with OP Nos. 3 to 6 and predecessor of OP Nos. 7 and 8   dated 10.07.2008, copy of the Power of Attorney  and the agreement  for sale entered  into between the OP Nos. 1 and 2  and  the complainant, possession letter dated 20.07.2012 and copy of the Notice sent by the complainant to the OPs dated 28.06.2018 through their Ld. Advocate.

          On perusal of the record, it appears that in spite of the service of notice, no  step was taken by the OPs and thus the case proceeded  exparte against them.

          During the course of the evidence complainants filed affidavit in chief and ultimately also filed Brief Notes of Argument supporting the case as stated in the complaint petition.

          So, the point requires determination is :

          Whether the complainants are entitled to the relief as prayed for?

Decision with reason

          In support of their claim, complainants have  filed  copy of the development agreement,  Power  of Attorney executed by the owners  in favour of OP Nos.1 and 2 and also  agreement entered into between the  OP Nos. 1 & 2/ developer  on 20.01.2011 with the complainant. It appears from the said agreement  that the said developers  agreed to sell the flat  described in the ‘B’ Schedule    of the agreement  on payment of consideration  price  of Rs.  7,50,000/-. It was agreed that the developer shall deliver vacant and peaceful possession of the flat within the month of August/September, 2011 subject to full payment by the purchaser to the developer. It appears from the possession letter dated 20.07.2012 that the possession of the flat no. 12 in the 3^rd floor has been handed over to the complainant. Complainant is in a possession of the said flat is further substantiated by electric bill filed by the complainant. According to the  complainants, they have  made  payment  of the entire consideration  price and to this effect  they have also  filed certain  receipts and also the statement of bank account. Since the case  proceeded exparte, there is absolute no material to counter and rebut the claim of the complainants. So as no deed has been executed in  favour of the complainants in respect of the flat, though the possession  has been handed over,  complainants are entitled to the execution and registration of the deed of conveyance in respect of the said flat as agreed. However, since the complainant has been enjoying the possession of the flat, there is no justification to allow compensation as prayed.

Hence,

                                Ordered

          CC/530/2018 is allowed exparte. Opposite Parties are hereby directed to execute and register the deed of conveyance in respect of the schedule flat as agreed within three months from the date of this order.  They are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of three months failing which the said sum shall carry interest @10% p.a. till  realisation.