Date of Filing : 07/10/2021
Date of Judgment : 30/09/2024
Sri Manish Deb, Hon’ble Member
Brief Fact of the case is that one Arjun Sarkar and Smt. Santi Sarkar were the owners of the property being premises No.102, Pallysree Regent Estate,Kolkata700092,P.S.Jadavpur now Netaji Nagar, District-24 Parganas (South).
That the OP No.1 is/was a renowned promoter and as a Promoter entered into a development agreement with Arjun Sarkar and Smt. Santi Sarkar for development of the said property as above.
That a Development Agreement was executed between the OP1, Arjun Sarkar now deceased and Smt. Santi Sarkar on 02.07.2001.
That during progress of the constriction of the project at premises No.102, Pallysree Regent Estate,Kolkata-700092,P.S.Jadavpur now Netaji Nagar, District-24 Parganas (South), being need of residential accommodation the complainant negotiated with the OP1 , Arjun Sarkar and Smt. Santi Sarkar for purchase of a flat at 102, Pallysree Regent Estate, Kolkata-700092, P.S. Jadavpur now Netaji Nagar, District 24- Parganas (South).
That the complainant booked a flat on the second floor, measuring about 390 Sq.ft. super built-up area under construction building at Premise No. 102, Pallysree Regent Estate,Kolkata-700092, P.S. Jadavpur now Netaji Nagar, District 24 -Parganas (South) for a consideration of Rs.2,42,000/- and an agreement was executed on 10.09.2002 between the complainant and the OP No.1 , Arjun Sarkar and Smt. Santi Sarkar
That after the construction being completed and after full payment, the opposite parties have handed over the possession of the flat to the complainant sometimes in the month of October 2003 and since then the complainant is in possession of the said flat.
The Opposite parties could not proceed with the execution and registration of the Deed of Conveyance in favour of the complainant for long time.
That in or about 2018 the complainant finally approached to the OP No.1 for registration of the flat in question but OP No.1 the developer refused to register the same because one of the owner Arjun Sarkar being died in the meantime.
That Arjun Sarkar since deceased left behind his wife and daughter i.e. OP No. 2 and OP No. 3 as his legal heirs.
Thus the complainant went to the legal heirs of the one owners now deceased i.e the OP No. 2 & 3 and opposite party No. 4 ( one of the land owner) and requested them to execute and register the Deed of Conveyance but the opposite parties did not registered the Deed of Conveyance. In favour of the complainant. The complainant served notices upon ops through his advocate on 10.08.2021 and after receiving the notices the opposite parties did not pay any heed to the said request, in the mean time OP No. 4 died.
That the complainant submits that the act and conduct of the opposite parties are questionable which amounts to unfair trade practice and deficiency of service for non-executing and non-registering the Deed of Conveyance in favour of the complainant , although the OP No. 1 has delivered the possession of the flat to the complainant after payment of full consideration money. That the complainant demanded that the opposite parties deliberately failed to execute and register the Deed of Conveyance and the complainant is entitled to compensation of Rs.60,000/- only for mental agony and harassment and Rs.10,000/-only for legal proceeding.
The opposite party No.1 entered appearance in the case and filed written version and expressed that he is/ were ready to register the deed of conveyance in favour of the complainant , whereas as opposite party No. 2 & 3 contested the case and separately filed the version where they mentioned that they also ready to execute and register the deed of conveyance in favour of the complainant.
But the opposite parties are deliberately failed to and neglected to execute and registered the deed of conveyance in favour of the complainant.
Finding no other avenues open to the complainant for seeking justice, the complainant filed this complaint petition before this commission.
Notices were served upon all the opposite parties & OP No. 1, 2 & 3 appeared in the case to contest the case by way of filing written version within the statutory period, admitted the facts and allegation as stated by the complainant in his complaint petition.
The name of opposite party No. 4 was expunged from the list of the opposite parties in the case as per prayer of the complainant as she died.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act,2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P.Act,2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not complete the registration of the flat in time.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
That the complainant submitted that complainant’s prayer made should be allowed otherwise complainant would be seriously prejudiced which cannot be compensated by any means.
Complainant is a consumer towards the opposite parties in terms of section 2(7)(ii) of the C.P.Act,2019.
That the complainant is a consumer under the act and has right to seek redress of his grievances before the Hon’ble Commission.
DISCUSSIONS AND FINDINGS
The complainant filed affidavit in chief as his evidence. The complainant also filed BNA and advanced verbal arguments.
We have meticulously gone through the materials on records with application of mind.
It is surprising to note that while the complainant was given possession of the of the flat and since after passing of about 2 years from date 28/09/2022 when the opposite party No. 1 , 2 & 3 have expressed their intention to execute the and register the deed of conveyance in favour complainant through written version, but they did not take any initiative to complete the registration of the flat, whereas as they did not have any barrier to execute and register the deed of sale in favour of complainant, why the matter has been lingered, we do not find any justified reason for not executing and registering the deed of conveyance by the opposite Parties in favour complainant.
The complainant even requested through his advocate , by sending notice upon ops on 10.08.2021 for registration of the flat but the complainant did not take any heed to the said request
It is needless to mention that without execution and registration of the deed of conveyance, the right and title of the complainant over the purchased property does not hold good at all.
In our view deficiency in service on the part of opposite Parties is established.
Whereas the opposite Parties have contest the case, the evidence and arguments, adduced by the complainant almost remains unchallenged and in our opinion, the complainant has successfully established his case thereby, making himself eligible for the relief(s), sought for.
Hence it is
ORDERED
CC No. 496 of 2021 is allowed against all the opposite Parties.
- Opposite Parties are directed to execute and register the deed of conveyance in respect of the flat mentioned in the schedule “B” of the sale agreement and which also mentioned in the complaint petition filed by the complainant within 60 days from the date of this order.
- The Opposite Parties are also directed to pay Rs.30,000/- towards compensation and Rs.10,000/- towards cost of litigation within 60 days from the date of this order.
In case of failure, on the part of the opposite Parties to comply the above order, the complainant will be at liberty to file execution as per law.
Dictated and corrected by
Member
