Samaresh Kumar Mitra,  Presiding Member.

This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 27/01/2011 an agreement was made between the complainant and the opposite party no.1 for hand over a flat in the 2nd floor together with undivided impartiable proportionate share of land underneath of the building in plot no. 5427 under Kh. No. 2855 within Mouza –Serampore, J.L. No. 13, Holding No. 23 and for the aforesaid matter the complainant paid to the opposite party no.1 Rs.4,20,000/-  as advance out of Rs.8,74,000/- on several dates in the year 2011.

But the opposite party members neither registered the said flat in any A.D.S.R. Serampore or Chinsurah nor returned the consideration money till date except a cheque amounting to Rs.1,50,000/- which was received by the complainant on 04/04/2016 but the cheque was bounced. 

Complainant filed the complaint petition praying directions upon the opposite party no. 1 to 5 to execute and register the sale deed in favour of the complainant any flat in 2nd floor or any floor measuring 768 sq.ft. in the schedule below property and pay a sum of Rs.50,000/- as compensation cost and to pay a sum of Rs. 5,000/- as litigation cost. 

The opposite party Nos. 2 to 5 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. 

This opposite party no. 1 submits that he issued a cheque on 02/11/2011, 08/11/2011 such as Rs. 1,00,000/- and Rs. 1,50,000/- only on 04/04/2015 in favour of the complainant which all the cheques were bounced so no money has been received by the complainant till date and op nos. 2 to 5 stated that no transaction was made within the knowledge of the opposite party and also not known regarding bounce of cheques.  If that would be so, complainant had every liberty to institute criminal case and bounced all cheques is an offence and punishable under the law.

The complainant unnecessarily has leveled false and defamatory allegation against the op. no.2   other opposite party no. 3 to 5 are totally in dark regarding the dispute between the complainant and the opposite party no. 1 and also regarding the transaction made.   The complainant shall have to elect what he wants either to purchase the flat or refund the money and question any complainant does not arise at all.

It is also stated by the complainant has claimed relief which is not at all clear.  The complainant has prayed for passing direction against the op no.1 to 5 to execute and register Sale Deed in favour of the complainant “Any flat” in the 2nd floor or any floor measuring 768 sq. ft. and the description of the schedule is totally vague and further the direction prayed against including opposite party no. 2 to 5 as compensation is totally illegal and also has no connection with the actual fact and also the complainant not entitled to get either any damage or any compensation against the opposite party no. 2 to 5.

It is also stated by the other opposite parties that any illegal act done by the opposite party no.1 is not binding against them. So, the complaint petition is liable to be rejected with cost.

Opposite Party No.1 despite receiving notice did not file written version so the proceeding do run ex parte against him vide order dated 21.12.2018.

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

    The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

     Complainant filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

    Argument as advanced by the agents of the complainant and the opposite parties heard in full.

From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

Whether the complainant is the consumer of the opposite parties or not?

Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

Whether there is any deficiency of service on the part of the opposite parties?

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. 

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 herein is a consumer of the opposite parties.

Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs.50,00,000/- limit of this Forum/ Commission. So, this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case. 

Complainant is his argument stated that a sell agreement was executed between opposite party no.1 and the complainant on 27.1.2011 in relation to that agreement the opposite party no. 1 received a sum of Rs.4,20,000/- as advance out of total consideration  of Rs. 8,74,000/-. The payment schedule is also stated. After getting the advance amount the opposite party members neither registered the said flat nor returned the advance amount till date. The complainant further states that opposite party no. 1 issued a cheque on 02.11.2011 amounting to Rs. 1,00,000/- and another cheque dt. 8.11.2011 amounting to Rs. 1,50,000/- in favour of the complainant but all cheques are bounced as a result the complainant did not receive any amount. According to this complainant opposite party nos.2 to 5 have done such type of work of fraud with so many persons and this Commission adjudicated the allegations and execution cases are pending before this Commission. So, this complainant filed the instant case before this Commission praying directions to execute and register the deed of conveyance in respect of said flat in favour of the complainant within one month from the date of order and out of said registration cost of Rs.60,000/- only shall be paid by the opposite party no. 1 and Rs.15,000/- only to the complainant as compensation for harassment and mental agony.

 

Opposite parties nos.2 to 5 contested the case by filing written version in which they alleged that the complaint petition is completely barred by limitation. The refund of money is to be made within three years before the court of civil jurisdiction. Since 28.1.2011 when the opposite party no 1 received the alleged amount. They also averred that opposite party no. 1 is their constituted attorney because the power of attorney was given conferring all powers even right to sell, transfer and there was no need of including the opposite party nos. 2 to 5 as party in this case. Opposite Party no. 2 served a notice dt. 7.1.2011 to the opposite party no.1 requesting for completion of total building and also asked to complete the construction of four flats in first floor being the owner’s allocation but the said letter was not accepted by the opposite party no. 1. The opposite party no. 2 at his own cost completed a portion of first floor which is the allocation of the opposite party nos. 2 to 5. The opposite party No.2 to 5 have totally disjoined and misjoinder of all the parties. They never executed any agreement in favour of the petitioner and never accepted any consideration money and the case has been falsely instituted. They are not aware whether the opposite party No.1 received any advance money amounting to Rs.4,20,000/- from this complainant.

It is pertinent to mention that the complainant paid advance money, xerox copy of receipt filed and the opposite party never disputed the payment. But tried to refund the advance amounting by issuing cheque in favour of the complainant. Section 3 of the Consumer Protection Act, 1986 clearly speaks that the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So this Forum/ Commission is capacitated enough to adjudicate the case. 

It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of him but it remained unheeded. The O.P. no.1 tried to evade his responsibility by putting blame on other opposite parties.

  Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties.  So we may safely conclude that the opposite party No.2 to 5 are also responsible to execute the deed of conveyance in favour of the complainant.

Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in his favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant.

Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him? 

 

    The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.

ORDER

       Hence, ordered that the complaint case being No.78/2017 be and the same is allowed on contest against the opposite party No.2  to 5 and ex-parte against opposite No.1 with a litigation cost of Rs.8000/- to be paid by the opposite party No.1.

 

The Opposite Party No. 1 to 5 are directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order in default refund the advance money amounting to Rs.4,20,000/- with interest @10% since the date of last payment by the opposite party No.1, otherwise the complainant may get the deed executed through the machinery of this Forum. 

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 & necessary action.