Smt. Sangita Paul, Member

This is a case filed by Shri Gopal Chandra Deb S/o. Late Charu Chandra Deb of Sriniketan, Nilachal Complex Phase-2, Flat 2^nd Mandir Gate, Bonhooghly, P.O. & P.S. – Narendrapur, 24 Parganas (South), Sonarpur, West Bengal, Pin – 700 103 against the OPs with a prayer for directing the OPs to execute and register the deed of conveyance in favour of the complainant in respect of the suit property as described in schedule-B or to execute and register the sale deed through the Forum, to pay the sum of Rs.5,00,000/- as compensation for causing unnecessary harassment and to pay litigation cost.

OP No.1 is Ratan Chandra Saha, S/o. Purna Saha of P282/B, P.O. – Kankurgachi, C.I.T. Road, Scheme IVM, Kolkata-700 054.

OP No.2 is Suchitra Saha, W/o. Ratan Chandra Saha of P282/B, P.O. – Kankurgachi,

C.I.T. Road, Scheme IVM, Kolkata-700 054.

OP No.3 is Subha Sankar Dutta, S/o. Shri Ranjit Kumar Dutta of Sriniketan, Nilachal Complex Phase-2, Plot No.10, P.S. & P.O. – Narendrapur, Kolkata-700 103.

The complainant by filing this case states that he is an intending purchaser of the flat “Sriniketan”, Nilachal Complex, Phase-II, Flat on 2^nd Floor at Mandir Gate, Bonhooghly, Narendrapur, South 24 Pgs, Sonarpur, West Bengal, Pin – 700 103.  The complainant made a sale agreement with OP No.1.  The sale agreement was made on 1.08.2004 with total consideration of Rs.4,06,000/-.  On 15.03.2003, the OP No.3 entered into an agreement wityh OP No.1 to construct a three storied residential building on land of 2 cottah, at Mouza – Ramchandrapur, Khatian No.36, Dag No.879 under P.S. – Sonarpur, Dist. – 24 Pgs (South), by the name Narendrapur, Nilachal Complex, Phase-II and OP no.3 handed over general power of attorney in favour of the developer on 5.03.2003 which was executed and registered in the office of Additional Registrar of Assurance , Kolkata.

 The Developer, OP No.1 has completed the total constructional work of the aforesaid three storied building plan sanctioned by the Bonhooghly No.1 Gram Panchyat. 

The complainant purchased from the OP No.1 a flat lying and situtated at Nilachal Complex, Phase-II, Dag No.879, Khatian No.6, Touzi No.3, Mouza – Ramchandrapur, measuring about 625 Sq.ft., Super built up area on the 2^nd Floor, Eastern side of the building for the total consideration price of Rs.4,06,000/- only described in Schedule-B and for this the OP No.1 entered into an agreement for sale in respect of the said flat in November, 2004, containing certain terms and conditions. 

As per terms and conditions of the agreement for sale dated 12.08.2003, the complainant paid a sum of Rs.4,06,000/- only in installments.  The details of the cheques are hereby annexed.  It was stated in the agreement that the possession would not be handed over to the complainant unless and until all payments are made.  The complainant paid almost full amount.  It is to be mentioned hat OP No.1 has delivered the khas possession of the said flat to the complainant. 

The complainant has paid electric bills, society subscription of the said premises after getting possession.  The complainant sent the Advocate’s notice regarding the execution and registration of the deed of sale in respect of the said flat dated 08.12.2006. The complainant went to the OPs place for the execution and registration of the deed of conveyance.  But the OP No.1 did not take any steps and failed and neglected to register the deed of conveyance in respect of the said property. Hence, this case.

The Act of the OP is nothing but deficiency in service and unfair trade practice. 

The cause of action arose on 10.08.2023, when the agreement was executed between the parties and lastly when the complainant went to OP No.1 and it is still continuing.  That the complainant prays for directing the OP to execute and register the deed of conveyance in favour of the complainant in respect of the said flat  as described in Schedule-B herein I/D the said deed be executed and registered through Hon’ble Commission, to the pay the sum of Rs.5,00,000/- only for compensation and to pay the litigation cost.

The complaint case was filed on 04.03.2021.  The case was admitted on  30.03.2021.  Notice was served upon OP No. 2 & 3 satisfactorily.  In spite of lapse of the statutory period the OPs 2 & 3 did not file W/V.  So the case proceeded ex-parte against the OPs 2 & 3.  On 25.03.22, Ld. Lawyer of complainant prays for expunging the name of the legal heir of OP No.1.  As she has no connection with the subject property.  The heir of OP No.1 is Sharmistha Saha. She was informed through newspaper publication dated 25.05.2022 but the legal heir did not turn up.  Her name was known from the neighbour.  Complainant was directed to file a draft copy of paper publication in respect of OP No.1. On 06.04.2022, the complainant filed the draft copy. On 17.06.2022 the complainant files copy of paper publication.  After 45 days i.e. on 08.07.2022, none of the OPs appeared to file W/V.  So, the instant case proceeded ex-parte against the OPs 1, 2 & 3.  On 08.2022, the Ld. Lawyer of the complainant filed Evidence on Affidavit.  BNA was filed by the complainant on 19.10.2022.  Argument was heard on 06.12.2022 and we proceeded for giving judgement. 

                               Points for consideration :-

1. Is the complainant, a consumer?
2. Is the OP guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?                                                                                                                                                                                                                                                                                                                                                                   Decision with reasons :-

Point No.1:- 

On perusal of documents and records, it appears that the complainant purchased a Self contained flat from the OP, Developer.  The development agreement was made on 10.08.2004 between Ratan Chandra Saha (Developer) and Gopal Chandra Deb (Purchaser).  The complainant made a payment of Rs.3,60,000/- only through cheque and cash and the balance amount was settled to be paid at the time of registration.  As the complainant paid an amount of Rs.3,60,000/- he is a consumer u/s 2(7) of the C P Act, 2019. 

Hence, the 1^st point is decided in favour of the complainant.

Point No.2:-

The complainant purchased the flat by paying earnest money of Rs.3,60,000/-.  The complainant made payment of the aforesaid amount.  At the initial stage the complainant gave Rs.10,000/- and the rest amount of Rs.3,50,000/- in different instalments.  Complainant also informed the developer that the rest amount would be paid on the date of execution and registration of the sale-deed.  But the developer failed to keep the words.  The total work of construction was complete.  The complainant expressed his desire to buy a flat at Nilachal Complex.  The flat is situated at Phase-II of Nilachal Complex, Dag No.879, Khatian No.36, Touzi No.3, Mouza – Ramchandrapur.  The flat measured about 625 Sq. Ft.  The flat was situated in the 2^nd floor of the building.  The OP entered into an agreement for sale for the said flat in November, 2004.  The agreement contains certain terms and conditions and the complainant had to abide by those terms and conditions.  Then only the OP agreed to sell the said flat to the complainant.  The complainant paid Rs.10,000/- on 09.07.2004 the next payment of Rs.15,000/- was made on 11.08.2005.  In this way, the payments were almost completed in November, 2004.  But the OP No.1 was not in a position to hand over the said flat to the complainant. As Rs.46,000/- was outstanding, the O.P. did not register the said flat in the name of complainant.  Though the complainant resided there, the flat was not registered.   The Act is an example of unfair trade practice and deficiency in service.   The complainant paid a big amount and confessed that rest of the amount would be paid at the time of registration.  Still the flat was not registered in the name of the complainant. 

Hence, the 2^nd point is settled in favour of the complainant and against the OP.

Point No:3:-

The complainant paid Rs.3,60,000/-.  OP No.1 received the amount.  As per agreement OP No.1 delivered the khas possession of the said flat to the complainant.  The complainant has been paying the electric bills of the flat.  Not only that he is also paying society–subscription of the said flat since he took possession.  The complainant failed to meet the OPs, so that he may talk about registration of the said flat.  None of the OPs turned up to contest the case.  It appears to be impossible to register the flat in the name of the complainant. The complainant is an octogenarian.  The complainant spends time in agony and mental pain.  Hence he is entitled to get relief as prayed for.

So the 3^rd point is decided in favour of the complainant and against the OP.  

In the result, the complaint succeeds.

Hence, it is,

                                                                                       ORDERED

That the complaint case be and the same is allowed ex-parte against the OPs 1, 2 & 3 with cost of Rs.15,000/- (Rupees Fifteen Thousand).

That the OPs 1, 2 & 3 jointly or severally are directed to register the deed of conveyance in the name of the complainant within 45 days from the date of this order alternatively the schedule flat will be registered through the machinery  of this Commission.  

That the OPs 1, 2 & 3 jointly or severally are directed to pay compensation to the tune of Rs.50,000/- (Rupees Fifty Thousand) to the complainant within 45 days  from the date of this order for deficiency in service, mental pain, agony and harassment.

That the litigation cost of Rs.15,000/- (Rupees Fifteen Thousand) must be paid within the stipulated period of 45 days.

That the complainant is also directed to pay the rest amount of Rs.46,000/- (Rupees Forty Six Thousand) at the time of registration of the deed of conveyance.

That the complainant is at liberty to put the order into execution if the orders are not complied with by the O.Ps. within the stipulated period of 45 days.

Let a copy of the order be supplied to the parties concerned free of cost.

That the final order will be available in the website namely www.confonet.nic.in.

Dictated and corrected by me.  

             Sangita Paul            

                Member