Dt. of filing : 27/08/2018
Dt. of Judgement : 01/03/2021
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Subhasis Dutta under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) Sri Pankaj Kumar Banerjee, 2) Shib Prosad Ghosh and 3) Nitya Prosad Ghosh alleging deficiency in service on their part.
Case of the Complainant in short is that Opposite Party No.1 is the developer and is engaged in the business of constructing building and Opposite Party No.2 & 3 are the owners of the property. A development agreement was entered into between the Opposite Party No.1 and Opposite Party No. 2 & 3 on 11/11/2001. The land owners also executed one registered General Power of Attorney in favour of Opposite Party No.1. Subsequently Complainant entered into an agreement with the Opposite Party No.1 on 12/01/2006 whereby Opposite Party No.1 agreed to sell one car parking space on the ground floor of the building measuring 100 Sq. ft at consideration of Rs.1,90,000/-. As per agreement transaction was to be completed within 4 months from the date of agreement. But inspite of payment of entire consideration money neither the possession has been handed over to the Complainant of the car parking space nor the Deed of Conveyance has been executed in favour of the Complainant. The possession letter was issued by the Opposite Party No.1 dated 20/09/014 in respect of car parking space which was received by the Complainant through hand service. But the Opposite Party No.1 failed to deliver the actual possession of the said car parking space to the Complainant. So notices have been sent by the Complainant through his Ld. Advocate on 3/05/2017, 23/08/2017 and lastly on 3/07/2018 but all went in vain. So the present complaint has been filed by the Complainant praying to direct the Opposite Party No.1 to hand over vacant physical possession of the car parking space as per agreement, to execute and register the Deed of Conveyance, to pay compensation of Rs.3 lakhs for inordinate delay, to pay cost of registration due to increase in the registration cost, to pay interest on the sum paid by the Complainant and litigation cost of Rs.35,000/-.
Complainant has annexed with the complaint copy of the agreement entered into between the parties, Money Receipts, Possession Letter and notices sent by the Complainant.
On perusal of the record it appears that Opposite Party No.3 only contested the case by filing written version contending inter alia that there has never been any privity of contract between the Complainant and Opposite Party No.3 and thus he is not in a position either to confirm or deny the claim of the Complainant. He only came to know about the alleged agreement on receiving the notice dated 3/07/2018 sent by the Complainant. However, if the Complainant is able to establish his claim and Opposite Party No.3 is directed to execute and register the deed, he is willing to do the same. So Opposite Party No.3 has prayed for dismissal of the case.
Opposite Party No.1 & 2 did not take any step inspite of service of the notice and thus vide order dated 7/02/2019 the case was directed to be proceeded ex-parte against them.
During the course of the trial, Complainant filed affidavit-in-chief but no questionnaire was filed by the contesting Opposite Party No.3 inspite of opportunity given and so ultimately the opportunity to file questionnaire, was closed. Thereafter evidence was filed by Opposite Party No.3 which was followed by filing of questionnaire by the Complainant and reply by the Opposite Party No.3. Ultimately argument has been advanced by the Complainant. BNA is also filed but Opposite Party No.3 did not take any step on the date of argument.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
In support of his claim that by an agreement dated 12/01/2006 Complainant agreed to purchase a car parking space and paid entire consideration price, Complainant has filed the agreement as well as Money Receipt. So far as the agreement to develop the property, was entered by Opposite Party No.2 & 3 the owners with Opposite Party No.1 the developers on 11/11/2001, has not been disputed and denied by Opposite Party No.3. It is not denied that the building plan was sanctioned on 30/11/2004. The possession letter has also been filed by the Complainant dated 20/09/2014. According to the claim of the Complainant that in furtherness of the said possession letter, Opposite Party No.1 failed to deliver the actual possession of the car parking space. It appears that a sketch map has been annexed with the possession letter. It has been stated in the possession letter that the plan which is delineted with red boarder has been identified as car parking space. The possession letter dated 20/09/2014 reads as under:-
“According to our agreement dated 12/01/2006 I am giving you the possession letter of your car space. The plan which is delineted in red border is enclosed herewith. Kindly acknowledge receive of the same”. Said possession letter does not bear the signature of the Complainant which establishes the claim of the Complainant that the possession was actually not delivered. It has already been highlighted above that the present case is running ex-parte against Opposite Party No.1 & 2. Opposite Party No.3 has not stated anywhere that the possession was delivered to the Complainant or that the Complainant is in possession of the car parking space. So in such a situation, as the possession of the car parking space has not been actually delivered to the Complainant, he is entitled to the possession of the car parking space as per agreement and also entitled to execution and registration of the Deed of Conveyance especially when no contrary material forthcoming before this Commission in order to counter or rebut the claim of the Complainant. Since there has been inordinate delay in delivering the possession of the car parking space by Opposite Party No.1, he is liable to pay compensation also. An amount of Rs.40,000/- will be justified as compensation for such delay. Complainant is also entitled to further amount of Rs.40,000/- as compensation from the Opposite Parties as there has been delay in execution and registration of the Deed of Conveyance, due to which Complainant will have to bear the cost of registration as per present market value. Hence,
O R D E R E D
CC/528/2018 is considered and allowed on contest against Opposite PartyNo.3 and ex-parte against Opposite Party No.1 & 2. Opposite Party No.1 is directed to deliver the vacant physical possession of the car parking space as per agreement dated 12/1/2006 within 3(Three) months from this date and further directed to pay Rs.40,000/- as compensation to the complainant for such delay in handing over of the car parking space within the aforesaid period of three months.
All the Opposite Parties are directed to execute and register the Deed of Conveyance in favour of the Complainant in respect of the said car parking space as per agreement dated 12/1/2006 within the aforesaid period of 3(Three) months and they are further directed to pay Rs.40,000/- as compensation and Rs.10,000/- towards litigation cost, within the aforesaid period of 3(Three) months.
