Dt. of filing – 08/09/2017

Dt. of Judgement – 08/04/2019

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Sankar Dey under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Hemanta Sarkar 2) Sri Nanda Lal Das 3) Sri Madan Mohan Das 4) Sri Swapan Kumar Das 5) Smt.Maya Das 6) Sri Shymal Kumar Das 7) Sri Tapan Kumar Das 8) Smt. Rita Pramanik 9) Sri Sunil Ranjan Das 10) Smt. Mousumi Das 11) Sri Hirendra Nath Das 12) Smt. Manisha Dhar 13) Smt. Gita Das 14)
Sikha Das 15) Smt. Basanti Das 16) Sri Jaydeep Das 17) Smt. Putul Roy 18) Smt. Bulbul Pramanik 19) Smt. Aruna Sengupta and 20) Smt. Arati Kayal   alleging deficiency in rendering service on their part.

          The case of the Complainant in short is that Opposite Party No.1 is a developer and the Opposite Party Nos. 2 to 20 are the present land owners of premises no.28/B, Dr. Nagen Ghosh Lane, Dhakuria, P.S. Garfa (previously within P.S. Kasba) and the land owners executed notarial Power of Attorney on 17/6/2002 in favour of Opposite Party No.1 to develop and construct a multi-storied building at 28/B, Dr. Nagen Ghosh Lane and accordingly a development agreement was also executed by and between the owners and developer.  Complainant by an agreement for sale dated 18/7/2006 agreed to purchase a flat from Opposite Party No.1 measuring approximately 680 Sq ft super built up area together with undivided impartible  proportionate share of land and interest with all common user at a total consideration amount of Rs.7,00,000/-. Complainant had paid Rs.3,00,000/- on 18/7/2006 and also had paid the rest of amount of Rs.4,00,000/- thereafter on different dates. But inspite of receiving entire consideration amount, Opposite Party/developer has not executed the Deed of Conveyance. Even though Complainant has been handed over possession of the schedule flat on 9/3/2010 by way of handing over the possession letter. Even though the agreement was entered into in respect of purchase of a flat in the first floor but as per wish of the Complainant, developer has handed over a flat in the second floor in place of the first floor. No objection was raised by the developer in changing the floor. Complainant several times approached developer and the Opposite Party Nos.2 to 20 the owners to execute the Deed of Conveyance in his favour but of no use. Ultimately a notice was also sent but the Opposite Parties did not pay any heed. So the present case has been filed by the Complainant praying for directing the Opposite Parties to execute and register the Deed of Conveyance in favour of the Complainant, to pay Rs.2,00,000/- as compensation and Rs.1,00,000/- as litigation cost.

          Complainant has annexed with the complaint petition, copy of agreement for sale dated 18/7/2006 entered into between him and the Opposite Party/developer, property tax receipt issued from Kolkata Municipal Corporation, money receipt, possession letter and copy of the notice sent by the Complainant to the Opposite Parties through his Ld. Advocate.

Opposite Party No.1 has contested the case by filing written version denying the material allegation made in the complaint petition contending inter alia that soon after receiving the entire consideration money from the Complainant he delivered the possession of the flat to the Complainant. But the agreement could not be executed as one of the owners namely Namita Das died ìntestate leaving behind her husband and daughter who are Opposite Party Nos.9 & 10 in this complaint petition. So on the death of the said Namita Das effect of General Power of Attorney was terminated. So as the present owner did not co-operate with the Opposite Party No.1 , the Deed of Conveyance in favour of intending purchaser could not be executed. So the Opposite Party has prayed for dismissal of the case against him.

          On perusal of the record it appears that notice was sent upon Opposite Party Nos.2 to 20 but no step was taken by them. The case proceeded ex-parte against them.

          During the course of evidence the Complainant and the Opposite Party No.1 adduced their evidence by filing affidavit-in-chief followed by filing of questionnaire and reply thereto. Thereafter the argument has been advanced by both the parties.

So the following points require determination:-

1. Whether there has been any deficiency in service on the part of the Opposite Parties?
2.  Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          Point No.1 & 2

                   Both these points are taken up together for comprehensive discussions.

          Complainant has claimed that there was an agreement for sale between him and the Opposite Party No.1 who was also a constituent attorney of owners of the land, to sell the flat measuring more or less 680 Sq ft. OP/developer has not disputed about agreement entered into between parties on 18/7/2006 to sale the flat at a total consideration price of Rs.7,00,000/-. He has also admitted in the written version about receiving of the entire sum. But the question which is to be adjudicated is whether the relief as sought for by the Complainant in respect of the property mentioned in the schedule of the complaint petition, can at all be allowed? It appears from the agreement dated 18/7/2006 that the agreement was entered into between parties in respect of selling flat in the first floor of the building but the Complainant in the instant petition of complaint has prayed for directing the Opposite Parties to execute the Deed of Conveyance in respect of a flat on the second floor, south-eastern side. It is claimed by the Complainant that he has been handed over the possession of the said schedule flat in the second floor by the Opposite Party. So the flat which was agreed between parties has not been handed over and it is some other flat which according to the Complainant is in his possession. It is settled principle of law that the Complainant is entitled to any deficiency on the basis of the service agreed to be provided as per agreement. So he is entitled to the flat which has been agreed to be handed over and not some other flat which was never agreed upon. Admittedly no agreement has been executed between the parties subsequently for the said second floor flat.

It may be pertinent to point out that an order/judgement passed by the Forum should be executable. Ultimately if there is a direction to execute and register the Deed of Conveyance as prayed by the Complainant, same has to be done on the basis of the agreement. But the schedule flat as described in the complaint petition was never being subject flat in the agreement. So if the Deed is executed then the same would be on the basis of the said agreement and not as prayed by the Complainant. More so Complainant cannot claim any flat in the building specially when there is every possibility that there is an agreement with regard to the said flat with somebody else. So in such a situation there cannot be any direction as prayed by the Complainant in respect of the schedule flat which was never agreed upon and thus on this score the complaint is liable to be dismissed.

          These points are answered accordingly.

Hence,

                        ORDERED

CC/526/2017 is dismissed on contest against Opposite Party No.1 and dismissed ex-parte against Opposite Party Nos.2 to 20.