Judgment : Dt.12.2.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Ashoke Paul, Gautam Paul and Nilanjana Paul alleging deficiency in service on the part of the opposite parties namely (1) Sri Ratan Lal Chowdhury, (2) M/s Chowdhury Housing Enterprise.

            Case of the Complainant in brief is that one Chandra Paul who was wife of Complainant No.1 and mother of Complainant Nos.2 & 3 entered into an agreement for sale on22.10.1986 for purchasing flats on the 3^rd floor being Flat No.9 and 10 of the building to be constructed by the OP partnership construction company in holding No.52, 51/46, 52/1 under the South Suburban Municipality being known and reputed premises No.67 also known as 65, Diamond Harbour Road, P.S.-Behala, Kolkata-700 038, for a total consideration of Rs.2,42,737/-. It is stated by the Complainants that the said Chandra Paul paid entire amount of consideration and the opposite parties delivered possession vide letter dt.22.6.1989 of the said flats to the purchaser and since then the Complainants have been residing there. It is further stated by the Complainants that the said Chandra Paul died on 12.07.2005 leaving the Complainants as her heirs. The Complainants have stated that they requested the OP No.1 on several occasions for registration of Deed of Conveyance in respect of the said flats but the OP No.1 paid no heed to that request. On contrary, the OP No.1 served a letter dt.15.11.2016 through his Ld. Advocate demanding Rs.22,737/- as balance amount of consideration as remaining unpaid although the opposite parties issued a letter dt.30.9.1987 acknowledging that entire amount of consideration had been received and, therefore, denying the same afterwards amounts to unfair trade practice. Accordingly, the Complainant has prayed for direction upon the OPs for execution and registration of Deed of Conveyance in respect of the said flats in favour of the Complainant and to pay compensation of Rs.5,00,000/-.

            The Complainants have annexed photocopy of Deed of Agreement d.22.10.1986, money receipt dt.30.9.1987 issued by the OPs, possession letter dt.22.6.1989,Death Certificate of Smt. Chandra Paul, etc.

            The OPs contested the case and filed written version denying all material allegation stating, inter alia, the predecessor in interest Chandra Paul entered into an agreement for sale on 22.10.1986 for two flats at a consideration of Rs.2,42,737/- out of which Rs.2,40,000/- has been paid and balance amount of Rs.22,737/- is still remaining unpaid. It is further stated by the OPs that since delivery of possession of the said flats the OPs on several occasions communicated the predecessor in interest of the Complainant for registration of Deed of Conveyance, but she did not respond positive and, therefore, the OPs are not liable for non-execution of registration of Deed of Conveyance. Accordingly, the OPs have prayed for dismissal of the petition of complaint.

            Points for determination-

1. Whether the Complainants are consumers under OPs.
2. Whether the OPs are deficient in providing service.
3. Whether the Complainant is entitled to any relief as prayed for.

Decision with reasons

All points are taken up together for comprehensive discussion and decision.

The predecessor-in-interest entered into an agreement for sale with the OPs in respect of two flats being No.9 and 10 to be constructed at a proposed building at premises No.67 as also No.65, Diamond Harbour Road (formerly Holding No.52, 51/46, 52/1 of the South Suburban Municipality), P.S.-Behala, Kolkata-700 038, Dist.- 24 Parganas at consideration of Rs.2,42,737/- and thus became consumer under the OPs. The present Complainants being the legal heirs as well as beneficiary of the predecessor-in-interest have become consumer under the OPs.

The OPs agreed to transfer the property in question in favour of the predecessor in interest of the Complainant vide agreement dt.22.10.1986.  Since the transfer of the said property has not been done so far the cause  of action is considered continuing in nature.

Admittedly, the predecessor-in-interest entered into an agreement for sale with the OP on 22.10.1986 in respect of two flats at an agreed amount of consideration of Rs.2,42,737/-. The Complainants have claimed that entire amount of consideration was paid to the OPs but, in the written version the OPs have stated that an amount of Rs.22,737/- is still remaining unpaid. In this regard, we have perused the documents on record and found a money receipt dt.30.09.1987 where the OP No.1 acknowledged of receiving entire amount of consideration of Rs.2,47,737/-. It is, therefore, evident therefrom that no amount for consideration is remaining unpaid. Since entire amount of consideration has been paid to the OPs the Complainants are entitled to the said flat registered in favour of them.

As regards the prayer made by the Complainant regarding compensation we observed that the OP developer has delivered possession of the disputed property within a reasonable spell of time and no allegation has been arisen regarding delivery of possession. It is also observed that though the Complainants have stated that they requested the OP developer on several occasions for registration of deed of conveyance in respect of the property in question but no documentary evidence has been furnished before us to that effect except a letter dated 23.12.2016. It is, therefore, held that the Complainants failed to prove that the OPs, in any way, are liable to pay compensation for causing harassment to the Complainants. Hence, we are not inclined to pass any order as to compensation and also for cost of litigation.

In the result, the consumer complaint succeeds in part.

Hence,

Ordered

             That the Consumer Complaint being No.CC 197 of 2017 is allowed in part on contest without costs.

           The OPs are directed to execute registration of Deed of Conveyance  in favour of the Complainants in respect of the flats being No.9 & 10 on the 3^rd floor at premises No.67 as also No.65, Diamond Harbour Road (formerly Holding No.52, 51/46, 52/1 of the South Suburban Municipality), P.S.-Behala, Kolkata-700 038, Dist.-24 Parganas, within one month from the date of this order. Alternatively, such registration may be done through the machinery of this Forum after filing execution application by the DHr.