Date of Filing : 22/09/2020
Date of Judgement : 18/09/2024
Sri Manish Deb, Hon’ble Member
The Brief Fact of the case is that one self contained flat being No. ‘A’ measuring an area of 680 sq.ft. super built up area on the ground floor lying and situated at Mouza – Paschim Barisha, comprised in Part of Dag No.3131, recorded under Khatian No.1271, J.L. No.19, Touzi No.1-6, 8-10, 12-16, R.S. No.43 being Premises No.384 Jaigir Ghat Road, mailing address No.37/1, Khudiram Sarani, Police Station-Behala, at present Thakurpukur within the ambit of Kolkata Municipal Corporation under Ward No.125 in the District South 24 Pgs is the subject matter of the present complaint case.
That on 06.9.2016 the complainant’s husband namely Sri Amit Roy son of Late Sourendra Nath Roy, entered into an agreement for sale, with the opposite party herein in respect of the flat paid a sum of Rs.12,30,000/- only to the opposite party as advance out of the total consideration amount of Rs.15,00,000/- only and the said agreement for sale had been duly registered in the office of the Additional Registrar of Assurance-I, Kolkata and recorded in Book No.1, Volume No.1901-2016 , Pages from 224145 to 224189 being No.190106737 for the year 2016.
That in terms of the said agreement for sale, dated 06.09.2016 the opposite party is liable to complete the entire flat within November 2016 and intimate the complainant for taking possession of the said flat and after getting possession the flat the complainant would get registered a Deed of Conveyance by the execution and respiration of the same on the part of the complainant.
That on several occasions the husband of the complainant contacted the Opposite party regarding possession of the flat and registration of the deed of conveyance after the expiry of the stipulated period of one month as mentioned in the agreement for sale but the opposite party had always intentionally delayed and deferred the matter of delivery of possession of the complete flat and registration of the Deed of Conveyance in respect of the flat being No. ‘A’ measuring an area of 680 sq.ft. super built up area on the ground floor lying and situated at Mouza – Paschim Barisha , comprised in Part of Dag No.3131, recorded under Khatian No.1271, J.L. No.19, Touzi No.1-6, 8-10, 12-16, R.S. No.43 being Premises No.384 Jaigir Ghat Road, mailing address No.37/1. Khudiram Sarani, Police Station-Behala, at present Thakurpukur.
That thereafter the opposite parties left the property incomplete stated that OP was unable to complete the entire project due to his financial inability and as such the husband of the complainant took initiative for completion of the entire flat in question and made a personal expenditure of about Rs.3,00,000/- only and completed the entire drainage line of the said newly constructed building and completed the incomplete bath privy and fitted all sanitary and plumbing work and fitted the tap, shower, basin , commode etc..
That thereafter all the flat owners jointly completed the casting of the main entrance gate and completed the roof treatment and also further completed the other construction work of the common passage and other pending work of the said project with the initiative of one of the intending purchaser and owners of the flats of the project .
That the opposite party did not obtain any water supply collection from the office of the Kolkata municipal corporation and neither he had taken any initiative to complete the entire project work and obtained completion certificate from the office of the Kolkata municipal corporation and as such the husband of the complainant subsequently in the month of February 2018 had been able to take possession by completing the said flat out of his own fund.
That thereafter on 06.06.2019 the husband of the complainant died intestate leaving behind him surviving the complainant herein who inherited all the right, title and interest left by her husband namely Sri Amit Roy, since deceased.
That the complainant after the demise of her husband on several occasions had requested the opposite party to execute and register necessary conveyance unto and in favour of the complainant but the opposite party did not pay any heed to it in spite of several requests of the complainant herein.
That on 08.10.2019 after the demise of her husband the complainant went to the office of the opposite party and requested the opposite party to execute and register necessary deed of conveyance in her favour as her husband was heavenly abode but the opposite party openly threatened the complainant he will not execute and register any deed of conveyance in favour of the complainant and he would sell the said flat to any other third party at his wish and also threatened her that nobody can resist the opposite party for doing such illegal act as because he has lot of anti social elements in his hand.
That in light of the above mentioned circumstances the complainant apprehends loss of her legitimate rights, title and interest and possession over the flat.
That inspite of repeated requests the OP failed and neglected to execute and register the deed of conveyance in favour of the complainant.
The complainant has come before this Commission for redressal. The complainant as purchaser has performed his obligation by paying the consideration money but OP failed neglected to render his services by executing and registering the deed of conveyance in respect of the flat as mentioned in the complaint petition.
Finding no other alternate complainant initiated this complain before this commission.
The property situated at Mouza – Paschim Barisha , comprised in Part of Dag No.3131, recorded under Khatian No.1271, J.L. No.19, Touzi No.1-6, 8-10, 12-16, R.S. No.43 being Premises No.384 Jaigir Ghat Road, mailing address No.37/1, Khudiram Sarani, Police Station-Behala, at present Thakurpukur within the territorial jurisdiction of the this Commission .
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not completing the registration process with completion certificate as stated in the compliant petition
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative
The complainant has submitted his evidence, brief note of argument in the case.
The complainant has adduced evidence together with copy of documents which includes money receipt.
The complainant filed one agreement dated 06.9.2016 with the OP and the money receipts issued by both the OP and also tax bill issued by the KMC in the name of the Complainant as person liable and also filed a copy of the notice of the Ld. Advocate for the complainant with the copy of postal receipt.
The opposite party not appeared in the instant case for filing their written version in spite of good service of notices.
Complainant has adduced the evidence but the said evidence was unchallenged.
No one has challenged the complaint petition as well as affidavit in evidence of the complainant therefore the statements made by the complainant as well as the documents tendered by the complainant are unchallenged and unchallenged evidence is deemed to be admitted.
The OP has not contested the case , as such the op has not filed any written version in the case , even the ops have not submitted any reliable documents defend the complaint filed by the complainant.
We have applied our mind and meticulously gone through the materials on record. We find reasonable ground and proof there in support of complainant contention.
By all means we are of the opinion that OP is liable in deficiency in service and unfair trade practice as alleged by the complainant even non appearing in the case and non filing of evidence by the OP is a clear cut proof of deficiency in service on the part of the OP, and there was an established fact of breach of contract as per the agreement so called.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
CC No.208/2020 is allowed against OP with cost.
- OP is directed to execute and register the deed of conveyance of the flat as mentioned in the scheduled of the complaint petition as well as third schedule of sale agreement within 60 days from the date of this order.
- OP is directed to pay compensation for mental agony and harassment for Rs.50,000/- to the complainant within 60 days from the date of this order.
- OP is also directed to pay Rs.10,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OP, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
