Date of Filing: 11.11.2020

Date of Judgment: 24.05.2022

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainant , Sri Uday Mondal  under section 35 of the C.P Act, 2019 against the Opposite party namely Sri Gobinda Mukherjee. (referred to as O.P), alleging deficiency in service on his   part.

The case of the complainant in short is that by an Agreement for Sale dated 03.01.2017 complainant agreed to purchase the flat as mentioned in the Schedule of the Agreement as well as in the petition of complaint on payment of consideration price of Rs. 5,50,000/- . Complainant has paid full consideration price to the O.P and the possession of the flat has also been handed over to the complainant. But inspite of repeated requests the deed has not been executed in favour of the complainant in respect of the flat as described in the schedule.  So , a demand notice was sent . But as the O.P did not pay any heed , the present complaint has been filed by the complainant praying for directing the O.P to execute and register the deed of conveyance in favour of the complainant in respect of the schedule property.

            On perusal of the record it appears that notice was sent but inspite of service of notice no step was taken by the O.P and thus , case proceeded exparte against the O.P. 

            During the course of the trial complainant filed affidavit-in-chief and ultimately BNA has also been filed.

            So, the only point requires determination is whether the complainant is entitled to the relief as prayed for.

Decision with reasons

            In support of his claim that by an Agreement for Sale complainant agreed to purchase the flat, complainant has filed the said Agreement, wherefrom it appears that the owner, after getting the owners’ allocation which is described as a flat/pacca house in the second floor ,  has sold the same to the complainant at a consideration price of Rs. 5,50,000/-. The Agreement shows that Rs.1 lac was paid by the complainant as advance payment  and the rest of the amount of Rs. 4,50,000/- was to be paid by or on 12.4.2017. Even though no receipt has been filed before this Commission showing payment by the complainant but it appears from the record that possession has already been delivered to the complainant and it has been claimed by the complainant that he has made payment of the entire consideration price . The delivery of possession of the flat supports the claim of the complainant about the payment of the entire consideration price, specially when before this Commission no contrary material is forthcoming.

            However, so far the relief sought for by the complainant with regard to the execution and registration of the deed of conveyance, the Municipal Assessment Bill regarding the property tax for the premises in question being no. 3/16 has been filed , wherefrom it appears that O.P is not the only owner in respect of the said premises. There appears names of as many as 10 owners including the O.P.  A copy of the possession letter has been filed by the complainant which is addressed to the O.P allegedly sent by the developer stating that the said O.P had entered into a Development Agreement with the said developer and thus he has handed over the possession of the owners’ allocation i.e the flat/ pacca house as described in the Agreement.  If the own document of the complainant i.e the Municipal Tax Bill regarding the property in question is taken into consideration, then the same indicates that the O.P is not the sole owner in respect of the property. The said letter of possession also does not indicate that the flat which has been delivered to the O.P was towards his share only . If that be so, then the O.P being not the sole owner in respect of the property cannot execute and register the deed of sale in favour of the complainant in the absence of other owners who are not the parties to the agreement. No court/Commission will pass an order which is not executable .

            Apart from this, it is apparent from the said possession letter that after the entire construction, a readymade flat was sold to the complainant. So, no housing construction service as specified under the provisions of the C.P Act has been hired or availed by the complainant. The sale appears to be a simpliciter sale of the subject flat/pacca house. So, for the reasons as highlighted above, we find that the complainant is not entitled to the relief of registration of the deed of conveyance as prayed for and thus present complaint case is liable to be dismissed.

 Hence,

                   ORDERED

That the CC/290/2020 is dismissed exparte.