Dt. of filing – 10/08/2018

Dt. of Judgement – 02/08/2019

Mrs. Sashi Kala Basu, Hon’ble President

          This consumer complaint is filed by the Complainant namely Sumita Dey under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Nirmal Hazra 2)  Sri Kamal Hazra 3) Sri Manik Hazra 4) Smt Anu Hazra 5) Smt Mou Saha 6) Sri Animesh Dutta and 7) Sri Anupam Dutta  alleging deficiency in service on their part.

          Case of the Complainant in short is that Opposite Party Nos. 1 to 5 are the absolute owner of “A” schedule property. By a registered agreement for development dated 31/3/2016 between Opposite Party Nos.1 to 5 and the predecessor in interest of Opposite Party No.6 & 7 namely Anil Kumar Dutta, they agreed to develop the aforesaid “A” schedule property by raising five storied building. A General Power of Attorney was also executed by Opposite Party Nos.1 to 5 in favour of said Anil Kumar Dutta on 31/3/2016. Thereafter, said Anil Kumar Dutta entered into an agreement for sale with the Complainant to sell “B” schedule property to the Complainant at a consideration of Rs.18,70,000/-. Complainant had paid an earnest money of Rs.1,70,000/- on the date of agreement and thereafter she has further paid an amount of Rs.10,25,000/- to the said Anil Kumar Dutta the predecessor in interest of Opposite Party No. 6 & 7. So, the Complainant has paid total amount of Rs.11,95,000/- out of consideration of Rs.18,70,000/-. Said Anil Kumar Dutta died on 10/12/2017. Complainant requested the Opposite Parties to complete the “B” schedule property and to execute and register the Deed of Conveyance on receiving the balance consideration money but the Opposite Parties did not pay any heed. So, the Complainant sent notice through her Ld. Advocate on 28/6/2018 to deliver possession of the schedule flat and to execute and register the Deed of Conveyance but all in vain. So the present complaint has been filed praying to direct the Opposite Parties to handover possession of the flat mentioned in the schedule “B”, to execute the Deed of Conveyance in favour of the Complainant in respect of the “B” schedule property, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.30,000/- .

          Complainant has annexed with the complaint petition, copy of the development agreement dated 31/3/2016, copy of agreement for sale dated 5/9/2016 entered into between the parties, money receipt showing payment of money to developer Anil Kumar Dutta since deceased, the extract copy of the Bank Pass Book and also copy of the notice dated 28/6/2018.

          On perusal of the record it appears that notice was sent to the Opposite Parties but none of the Opposite Parties took any step and thus vide order dated 6/12/2018, the case came up for ex-parte hearing.

          So the only point requires determination is:-

          Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          In support of her claim that she agreed to purchase “B” schedule property at a consideration of Rs.18,70,000/- and an agreement was executed by the developer namely Anil Kumar Dutta and the Opposite Party Nos. 1 to 5 on 5/9/2016, Complainant  has filed the said agreement. From the copy of the development agreement dated 31/3/2016 it appears that Opposite Party Nos.1 to 5 and Anil Kumar Dutta i.e. predecessor in interest of Opposite Party No.6 & 7 had entered into an agreement to develop the property described in the schedule “A” by raising five storied building. According to the Complainant she has paid total amount of Rs.11,95,000/- towards consideration and she has always been ready to pay the balance amount but she has neither been delivered the possession nor the Deed of Conveyance has been executed in her favour. From the receipts filed by the Complainant and also entry in the Pass Book filed by the Complainant, the payment as stated by the Complainant is established especially when before this Forum there is absolutely no contrary material to counter or rebut the claim made by the Complainant. So, Complainant is entitled to the possession of the schedule “B” property and for execution of Deed of Conveyance in her favour on payment of balance consideration money of Rs.6,75,000/-. However, in the given facts and situation of this case especially huge amount is still not paid by the Complainant, we find no justification to allow compensation as prayed though she is entitled to the litigation cost as was compelled to file the case.

Hence,

                                        ORDERED

CC/509/2018 is allowed ex-parte. Opposite Parties are directed to deliver the possession of the schedule “B” property as agreed in the agreement, to the Complainant and to execute and register the Deed of Conveyance in her favour within 3(three) months from the date of this order subject to payment of balance consideration money of Rs.6,75,000/- by the Complainant. Opposite Parties are further directed to pay Rs.10,000/- as litigation cost to the Complainant within the aforesaid period of 3(Three) months.