This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant entered into an agreement for sale on 27.6.2004 with the opposite party no. 1 being the predecessor of the opposite party nos. 2 and 3 in respect of the schedule property and the complainant has paid Rs. 1,98,000/- only on 22.1.2004 by cash as advance against total consideration of Rs. 2,59,000/- only and that was endorsed in agreement dt. 27.6.2004. The balance consideration amount of Rs. 61,000/- only has been paid on the stipulated date and he got possession of the schedule flat and the complainant had repeatedly told the opposite party no. 1 being the predecessor of the opposite party nos. 2 and 3 for execution and registration of sale deed while complainant was always ready to get the deed of sale registered.

                The complainant also states that unfortunately, opposite party no. 1 being the predecessor of the opposite party nos. 2 and 3 expired on 26.6.2015 and thereafter the complainant approached the opposite party nos. 2 and 3 for execution and registration of the sale deed time without number in which they paid a deaf ear to the complainant and the complainant remains ready to get the sale deed registered and executed and as such under compulsion the complainant sent a notice through his Advocate on 29.8.2016 to the opposite party nos. 2 and 3 who received the letter and intentionally refused to receive the same and opposite parties also deliberately having not responded. The cause of action of this case arose on the date when balance of consideration received by opposite party no. 1 when he was alive and lastly on 30.8.2016 when letter received by opposite party nos. 2 and 3.

Complainant filed the complaint petition praying direction upon the opposite parties to execute and register the deed of sale in favour of the complainant in respect of schedule mentioned flat and to pay a sum of Rs. 50,000/- as cost of this case.

The opposite party Nos. 2 and 3 contested the case by filing written version denying inter-alia all the material allegations as levelled against them. These opposite parties submit that complainant is a distant relative of the predecessor of the opposite party nos. 2 and 3 and father of the opposite party no. 2 and husband of opposite party no. 3 being a promoter/ developer constructed multi storied building within the property of the opposite party no. 1 and the complainant took license from the opposite party no. 1 to reside in a flat of holding no. 116/3, Criper Road and after the sudden death of opposite party no. 1 complainant started to initiate pressure upon this answering opposite parties to execute and register the deed of sale in favour of him and the opposite parties became perplexed and started to search any document regarding any agreement for sale, but did not find and during the lifetime of the opposite party no. 1 he never gave any information to the opposite parties regarding any agreement for sale between the opposite party no. 1 and the complainant.

Points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the opposite parties did unfair trade practice?
5. Whether the complainant is entitled to get relief, if any?

DECISIONS WITH REASONS

Point no. 1

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 here in is a consumer of the opposite parties.

Point no. 2

Complainant and the opposite parties are residence/having their office address within the district of Hooghly. The complaint value within Rs. 20,00,000/- i.e. limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

Point nos. 3, 4 and 5:

All these points are taken up conjointly as those are related to each other for convenience and brevity of discussions.

In support of the case complainant has filed affidavit in chief narrating a replica of the facts as appearing in the complaint. That apart on behalf of the complainant a photocopy of an agreement for sale has been filed wherefrom it is palpably reveals that there was an agreement for sale took place on 27.6.2004 between complainant and one Abhijit Bose being the constituted attorney of opposite party no. 1, covering therein the details of the flat in question mentioned under schedule “B” of the said copy of agreement for sale and it is also clear that present complainant is the intended buyer and said Sri Abhijit Bose being the constituted attorney of opposite party no. 1, and also as developer has been shown as owner/ vendor. Said Abhijit Bose also has been shown as developer to construct the premises in question in which the flat in question is situated. In schedule “C” of the said agreement for sale it is also appearing that Rs. 1,98,000/- only paid by the complainant to the developer by cash on 22.1.2004 as an advance money and it also shows that balance amount of Rs. 61,000/- shall be paid within two months and/ or before possession. It is also mentioned in schedule “D” of the said agreement for sale about the common maintenance. Further it may be noted that in the said copy of agreement for sale Abhijit Bose being the constituted attorney of opposite party no. 1 put his signature as vendor and said Abhijit Bose also put his signature as developer being the proprietor of Bose construction, whereas complainant put his signature as purchaser.

That apart complainant files photo copy of legal notice including photocopies of AD card and envelope.

To counter and/ or challenge the same no documentary evidence is forthcoming from the end of opposite party nos. 2 and 3, though opposite party no. 3 on her behalf as well as on behalf of her daughter being op no. 2 filed affidavit in chief, wherefrom it is palpably clear that she flatly mentioned that the entire facts as stated by the complainant are false, baseless, concocted, motivated, fabricated and manufactured. It is also appearing that she denied about any agreement for sale. Opposite party no. 3 also denied about payment of Rs. 1,98,000/- by cash as advance paid by complainant to Abhijit Bose. Opposite party no. 3 also denied that complainant requested her husband to execute and register of sale deed in respect of flat in question.

It may be noted that BNA has been filed on behalf of the complainant as well as on behalf of the opposite party nos. 2 and 3.

Having gone through the materials on record including the contents of affidavit in chief filed on behalf of both the parties and also keeping in view the documentary evidence as discussed above, this Forum is of the view that  complainant has succeeded in proving his case. The materials on record will speak a volume about the agreement for sale and it is conclusively proved by the complainant about the existence of said written agreement for sale.  

Further it may be noted that mere denial of the complainant case by the opposite party nos. 2 and 3 certainly will not come of any help in support of their case. Opposite party nos. 2 and 3 has failed to introduce any appreciable and convincing evidence.

In view of the above discussion and considering the facts and circumstances of the case this Forum is of the view that complainant has succeeded to prove his case.

Hence,

it is

ordered

that the instant case be and the same is allowed on contest against opposite party nos. 2 and 3 and ex parte against the opposite party no. 1 with cost.

            Opposite party nos. 1, 2 and 3 are hereby directed to execute and register a deed of sale in respect of flat-in-question mentioned in the schedule be of the petition of the complainant within two months from this date of order, failing which complainant will be at liberty to put the decree in execution.

            Opposite party nos. 2 and 3 are further directed to pay Rs. 25,000/- jointly and/ or severally towards compensation.

Opposite party nos. 1, 2 and 3 are directed to pay Rs. 5,000/- to the complainant towards litigation cost.

Compensation and litigation cost must be paid by opposite party nos. 1, 2 and 3 to the complainant within two months from the date of order.

            Let copy of this order be supplied free of cost to the parties/ their ld. Advocates on record by hand with proper acknowledgment/ sent by ordinary course for information and necessary action.