This is an application U/S 12 of the C.P.Act filed by the petitioner Sri Shyam Chandra Chakraborty flat no.707,708 (3rd floor), Ananda Bhavan, 165/A, Criper Road, Konnagar, Dist. Hooghly praying for an order directing the OP no. 1 to 9 viz. Sri Manash Ghosh and 8 others to execute and register the deed of conveyance in favour of the petitioner after receiving the balance consideration
money in respect of B schedule property being flat no. C 710 on the third floor of the multi storied building Ananda Bhavan , measuring about 1188 sq.ft. consisting of two bed rooms, one kitchen, one verandah one dining cum drawing room situated on 7 satak land of holding no.165/A Criper Road, Konnagar.
The further case of the petitioner is that the OP no.1 to 7 are the owners of the property and the OP no. 1 to 6 nominated and appointed Op no. 7 as their constituted attorney to conduct all construction work through Promoter for which they registered a Power of Attorney in favour of Op no. 7, Tilotoma Ghosh on 2.1.2001. Op no. 7 , the Power of attorney holder again nominated and appointed Op no. 8 Dukhiram Pal by another Notarial Power of attorney dated 22.2.2001 for the purpose of performing different works including construction .
Subsequently, by virtue an unregistered agreement for sale of flat dated 12.4.2004 the OP no. 1 to 9 agreed to sell residential flat as in the B schedule property to the petitioner who paid the total consideration of Rs 5,50,000/- on different dates and the above amount was duly received by granting proper receipts. The OP no. 7 and 8 later on issued two letters dated 24.12.2003 and 25.1.2003 handing over possession of the B schedule mentioned flat . But the Ops
did not execute and register the deed of conveyance in favour of the petitioner inspite of several requests from the petitioner, rather the oPs threatened the petitioner . The petitioner approached the Assistant Director , Consumer Affairs and Fair Business Practices on 15.12.2011 who advised to approach the Forum. Hence , is this case.
The Op no. 1 to 7 contested the case by filing a written version denying the material allegations made in the claim petition and further submitted that the petition is not maintainable as the same is barred by law of limitation and further submitted that they being land lords engaged OP no. 8 and 9 Dukhiram Pal and Sanjay Pal to develop the property as promoter and Op no. 8 and 9 took loan from OP no.10 being the Oriental Bank of Commerce , Dunlop branch. The oP no. 1 to 7 has not yet received their allotted portion in the building and also the money from the Op no. 8 and 9 . The OP no. 1 to 7 are always ready and willing to cooperate with the petitioner as well as the other purchasers even though they have not received the consideration price but the OP no. 10 Bank, filed a case against the Promoter and there might be legal complicacy to fulfil the prayer of petitioner and thus the case be dismissed against them.
The case against OP no. 8 and 9 being the promoters is heard exparte.
OP no. 10 , Oriental Bank of commerce , Dunlop Branch, appeared in the case and filed written version stating that the oP no. 8 and his firm are borrowers of OP no.10 and they availed of a term loan from the Bank wherein the OP no. 7 was the guarantor . Bank has no connection with op no. 9 . The Bank initiated a suit against the Ops being Title suit no. 50 of 2004 before the court of Civil Judge, Sr. Division, Ist court, Barasat and the same has been pending . Later on petitioner expunged the Bank from this case.
On the above cases of the parties following issued are framed :
- Is the case maintainable in its present form ?
- Has the petitioner any cause of action to file this case ?
- Whether the case is barred by limitation ?
- Whether the petitioner is entitled to get the relief as prayed for ?
DECISION WITH REASONS :
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration.
In the instant case , the petitioner prayed for a direction upon the Ops no. 1 to 9 being the owners and promoters of the suit flat to execute and register the Deed of conveyance in her favour as he has paid the full consideration money of
Rs.5,50,000/- as per agreement dated 7.11.2002 in the memo of consideration there is clear mention of the payment of full consideration and received by the oPs who also signed in presence of the witnesses.
In support of her case though the petitioner did not adduce any oral evidence yet from the agreement dated 7.11.2002 it is crystal clear that there was agreement of sale of the B schedule mentioned flat to the petitioner by the Ops who received the full consideration of Rs.5,50,000/- as agreed between them as clearly mentioned in page 6 of the agreement wherein the consideration money was fixed Rs.5,50,000/- . It is further noticed from the letter of handing over possession of the B schedule mentioned flat written by OP no. 7 Tilomma Ghosh and it is conceded by the petitioner that she is possession of the schedule
mentioned flat and filed this case as the Ops used dillydally tactics to execute and register the deed of conveyance in her favour. In case of purchase of a flat by an intending purchaser from the owner and promoter an agreement is generally executed between the purchaser in one side and the owner and the promoter on the other side wherein the purchaser agreed to pay a certain amount of consideration for purchasing the flat as in the instant case the petitioner agreed to pay Rs.5,50,000/- to the oPs being the consideration money of the B schedule mentioned flat and she paid the whole amount as noticed from the page 14 of the agreement and also in the instant case the promoter constructed the house as per the sanction plan including the flat of the petitioner and also handed over possession of the B schedule mentioned flat to the petitioner. But the dispute arose when in contravention of the terms of the agreement the Ops owners and promoters did not execute the deed of conveyance in favour of the petitioner and here arose the dispute and such act of the owners and promoters amounts to deficiency in service on their part for which the petitioner rightly filed this case and proved the same and legally entitled to get the order as prayed for In the result the claim case succeeds.
Court fees, paid on the claim case , is correct.
Hence ordered
That the complaint case no. 31 of 2012 be and the same is allowed on contest against the OP no. 1 to 7 and exparte against Op no.8 and 9 with cost. The petitioner is entitled to get the order as prayed for and the Ops 1 to 7 being owners and 8 and 9 being promoters are directed to execute and register the deed of conveyance in favour of the petitioner Shyam Chandra Chakraborty within 30 days from the date of this order. The petitioner is further entitled to a sum of Rs.10,000/- as compensation for mental agony and harassment and a sum of Rs.5,000/- towards the cost of litigation and both the above total sum of Rs.15,000/- be paid by the Ops to the petitioner within the above stipulated time, failing the above sum would carry interest @ 6% per annum till realization. The Ops failing to execute and register the deed of conveyance and paying the compensation and litigation cost , the petitioner will be at liberty to put the final order of this forum in execution.
