Date of Filing: 19/11/2018
Date of Judgment: 28/09/2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Sri Soumen Singh, under section 12 of the C.P Act, 1986 against the opposite parties namely 1) Sri Ranjit Kumar Roy 2) Sri Goutam Mondal, 3) Smt. Labani Mandal, 4) Smt. Swapna Mandal, 5) Sri Saurav Mandal, 6) Smt. Mousumi Dutta, 7) Smt. Srabani Sarkar, 8) Smt. Indira Roy, 9) Sk. Siraj Ahmed, alleging deficiency in service and unfair trade practice on their part.
The case of the complainant in short is that O.P nos. 1 to 8 being desirous of developing the property being Municipal Premises nos. 9, 9/A/2 and 88 , Bhubon Mohon Roy Road into one premises after ratification of all formalities and thereby constructing a multistoried building in accordance with the sanctioned building plan entered into a development agreement with the O.P no.9, the Proprietor of K.B Enterprise. O.P no.1 Ranjit Roy executed a development agreement dated 26.6.2012 with the O.P no.9 in respect of municipal premises no. 9, Bhubon Mohon Roy Road within P.S Thakurpukur. O.P nos. 2 to 7 entered into a Development Agreement dated 5.10.2010 with the O.P no. 9 in respect of municipal premises no.88, Bhubon Mohon Roy Road and O.P no. 8 executed a development agreement dated 27.7.2012 with the O.P no. 9 in respect of municipal premises no. 9/A/2, Bhubon Mohon Roy Road under P.S Thakurpukur . By virtue of the Deeds of exchange O.P nos. 1 to 8 got their name amalgamated and mutated in respect of those premises nos. 9, 9/A/2, and 88, Bhubon Mohon Roy Road. O.P nos. 1,2 and 3 and O.P nos. 6 to 8 executed general power of attorney in favour of O.P no.9 which was registered on 17.10.2012 and O.P nos. 4 and 5 executed a separate general power of attorney dated 19.10.2012 in favour of the OP.P no.9 in respect of premises no.88. O.P no.9 got the plan sanctioned from the KMC for construction of a ground plus 3 storied building. The name of the building was Astha Apartment. Complainant was doing business of supplying building material and he had supplied the materials as per the orders of O.P no. 9, the developer for construction of the building upon those premises. The developer out of the credited amount paid part of the amount to the complainant but a sum of Rs. 7 lac was due and payable by the O.P no. 9 to the complainant. Since, the developer, O.P no.9, was unable to pay the said amount , he offered the complainant to purchase a self contained flat being no.2a measuring 500 sq.ft and accordingly an agreement for sale was entered into between the complainant and the O.P no.9 who also represented the O.P nos. 1 to 8 being the owners as their constituted attorney on 27.1.2018. Total consideration price was settled at Rs.12,50,000/-. So, the complainant was to pay the balance amount of Rs. 5,50,000/- only towards the consideration price of the said flat. But inspite of several requests and complainant being willing to pay the balance amount , the O.P no.9 failed to hand over the possession and refused to execute and register the deed of conveyance in favour of the complainant. So, a legal notice was sent by the complainant through his Ld. Advocate but the O.P nos. 1 to 9 failed and neglected to execute and register the deed of conveyance. So, the present complaint has been filed by the complainant praying for directing the O.Ps to execute and register the deed of conveyance in respect of the flat described in Schedule B of the agreement, to direct the O.Ps to hand over possession of the said flat , to pay compensation of Rs.3 lac towards delay and mental agony and also Rs.1 lac as litigation cost and incidental expenses.
On perusal of the record it appears that inspite of the service of notice no step was taken by the O.P nos. 1 to 8. So, the case has been directed to be proceeded exparte against them.
O.P no.9 however, has contested the case by filing written version denying and disputing the allegations made by the complainant contending inter alia that as per the terms and conditions of the said agreement for sale dated 27.01.2018 he is entitled to get an amount of Rs. 5,50,000/- as balance consideration amount which has not been paid by the complainant. It is also contended that an amount of Rs. 1,75,000/- on 28.01.2018 , Rs. 50,000/- on 16.7.2018 and Rs. 25000/- on 7.8.2018 i.e total sum of Rs. 2,50,000/- has been paid by the O.P no.9, the developer, to the complainant after execution of the said agreement. O.P no. 9 also requested the complainant to receive an amount of Rs.50,000/- as further payment which he refused to receive with a threat to file this case. So, the O.P no.9 has contended further that if the said amount of Rs. 5,50,000/- and Rs. 2,50,000/- are paid i.e a total sum of Rs. 8 lac by the complainant, then he is ready to execute and register the deed of conveyance in the name of the complainant. Thus O.P no.9 has prayed for dismissal of the case.
During the course of the trial complainant filed affidavit-in-chief followed by filing of questionnaire by the O.P no.9 and reply by the complainant. But inspite of repeated opportunities given, O.P no.9 did not file any examination-in-chief on affidavit , nor had participated at the time of argument. The complainant however filed BNA.
So, the following points require determination:
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reasons
The complainant in support of his claim that he agreed to purchase a flat and the consideration price was settled at Rs.12 , 50,000/-, has filed copy of the agreement entered into between the complainant and the O.P no.9 on 27.1.2018. The said agreement indicates that O.P no.9 being the developer had also represented the O.P nos. 1 to 8 being the owner as their Constituted Attorney.
It may be pertinent to point out that O.P no.9 in the written version filed by him has not denied and disputed about the execution of the agreement for sale in respect of the flat as described in the schedule B of the said agreement . The only contention raised by O.P no.9 is that complainant did not pay Rs. 5,50,000/- towards the balance consideration amount and after the execution of the agreement between the parties on 27.1.2018, O.P no.9 , the developer, further paid an amount of Rs. 2,50,000/- to the complainant on different dates. So, in total complainant is liable to pay a sum of Rs. 8 lac and if the said amount is paid , O.P no.9 has stated that he would execute and register the deed of conveyance in the name of the complainant.
Admittedly Rs. 5,50,000/- towards the balance consideration price has not been paid by the complainant. So, he is liable to pay the same. So far as Rs. 2,50,000/- , claimed by O.P no.9, the developer, the same is denied by the complainant that any such amount has been received by him. Be that as it may, so far as the said amount of Rs. 2,50,000/- is concerned, this Commission has no jurisdiction to allow the relief sought for by the O.P. He may recover the said sum by filing a separate civil suit for which the competent civil court only has the jurisdiction. However since, neither the possession of the subject flat has been handed over to the complainant as per agreement, nor the deed has been executed, complainant is entitled to the delivery of possession of the said flat and execution and registration of the deed in his favour on payment of balance consideration price of Rs. 5,50,000/- to the O.P no.9. However, considering the fact that complainant also failed to make any further payment towards the balance consideration price of Rs. 5,50,000/-, we find no justification to allow any compensation as prayed for by the complainant.
Hence,
ORDERED
CC/632/2018 is allowed on contest against O.P no.9 and exparte against O.P nos. 1 to 8.
O.P no. 9 is directed to deliver possession of the flat in favour of the complainant as per agreement dated 27.1.2018 within 3 months from this date on payment of balance consideration price of Rs. 5,50,000/- by the complainant and all the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the said flat within the aforesaid period of 3 months.
O.P no.9 shall also pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of 3 months.
