Date of filing : 12.06.2019

Judgment : Dt.20.01.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Kaushik Sen Gupta alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Saibal Ghosh, (2) Sri Surajit Ghosh and (3) Abode Promoters Private Limited.

            Case of the Complainant, in short, is that one Mamata Ghosh was the owner in respect of the property described in the Schedule A of the complaint. On her demise, OP No.1 & 2 being her legal heirs inherited the property and became the owners. They entered into a development agreement with OP No.3 and the same was registered on 9.10.2012. A power of attorney was also executed in favour of the OP No.3 by OP No.1 & 2 and the same was also registered on the said date i.e. 9.10.2012. During the continuance of the construction of G+5 storied building, OP No.1 & 2 entered into an agreement to sale the schedule property to the Complainant by an agreement for sale dt.09.08.2013 at a consideration of Rs.17,09,000/-. Complainant paid an amount of Rs.9,01,000/- in total out of consideration price of Rs.17,09,000/-, but the Complainant has not been handed over the possession of the flat nor the deed has been executed. Complainant also sent the notice through his Ld. Advocate to the OPs, but, all in vain. Thus, the present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance in respect of the flat, to handover the khas and vacant possession of the flat, to supply the completion certificate, to pay compensation of Rs.50,000/- and litigation cost of Rs.20,000./-

            Complainant has annexed with the complaint copy of the development agreement dt.9.10.2012, copy of the registered power of attorney, copy of the agreement for sale dt.09.08.2013 entered into by the OP No.1 & 2 with the Complainant, the letter sent by the OP No.1 & 2 to the Complainant dt.31.08.2016 and the notice sent by the Complainant through his Ld. Advocate dt.11.4.2019.

            On perusal of the record, it appears that notice was sent but no step was taken by the OPs and neither any written version was filed by them. Thus, vide order dt.29.8.2019, the case was directed to be proceeded ex-parte.

            During the course of the trial, Complainant filed affidavit-in-chief and ultimately argument has been advanced. Written note of argument has also been filed by the Complainant.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            Complainant has claimed that by an agreement dt.9.8.2013, he agreed to purchase a flat as described in the Schedule of the complaint at a consideration of Rs.17,09,000/- out  of which he has paid total sum of Rs.9,01,000/-. In order to support his claim, Complainant has filed the copy of the development agreement entered into between the OPs and the registered power of attorney executed by OP No.1 & 2, the owner in favour of OP No.3, developer. On perusal of the agreement for sale, entered into with the Complainant dt.09.08.2013, it appears there is no specific mention about the flat Number agreed to be purchased. However, it is mentioned in the schedule of the agreement area o f the flat measuring more or less 432 sq.ft. on the 2^nd floor. In the  memo of consideration , there is acknowledgement by OP No.1 & 2, about the sum paid by the Complainant towards part payment. Complainant has also filed the bank statement showing payment of the sum as claimed by him. But, in this case, Complainant has claimed for possession of the flat in the 5^th floor. So, the same differs from the flat described  in the schedule of agreement as in the agreement, flat agreed to be sold is stated in the 2^nd floor. However, on a careful scrutiny of the document filed by the Complainant, it appears that a letter has been sent by the OP No.1 and 2 to the Complainant dated 31.08.2016 , wherein OP No.1 & 2 described the flat as flat No.505 measuring area 515 sq.ft. and it is in the 5^th floor. So, the letter suggests that at a later stage OP No.1 & 2 agreed and made it clear that the flat was in 5^th floor and area was 515 sq.ft. in the building namely “Mamata Enclave”. So, on consideration of the said letter dt.31.8.2016, as it is claimed by the Complainant that the possession has not been handed over to the Complainant, neither the deed has been executed, he is entitled to the possession and execution and registration of the deed in his favour in respect of the said flat being No.505 in the 5^th floor on payment of balance consideration price of Rs.9,01,000/- especially, as no contrary material is forthcoming before this Forum to counter or rebut the claim of the Complainant. It will not be out of place to mention here that in the letter dt.31.8.2016 the cost of the flat has been stated as Rs.18,02,500/-. So, if admittedly Complainant has paid Rs.9,01,000/- then he is liable to pay balance of Rs.9,01,500/-. But, in the given situation of this case, as the major part of the consideration price has not been paid by the Complainant, there is no justification to pass any order as to compensation and litigation cost.

            Hence

                              ordered

            CC/278/2019 is allowed ex-parte against OP No.1 & 2 and dismissed ex-parte against OP No.3. OP No.1 & 2 are directed to deliver the possession of the flat described in the schedule ‘C’ of the complaint and to execute and register the deed of conveyance in favour of the Complainant, within three months from the date of this order on payment of balance consideration price of Rs.9,01,500/- by the Complainant.