Date of Filing            :    23 November, 2021.

Date of Judgement  :     12 June, 2023,

Mrs. Ashoka Guha Roy (Bera),  Hon’ble Presiding Member.

The instant case has been filed by the Complainant, SMT. NAMITA SRIVASTVA, U/S 35 of the Consumer Protection Act, 2019, herein after called the said Act, against the Opposite Parties, namely 1) SRI SAUGATA KUNDU being the Developer and  sole proprietor of M/s. IGLOO ,a Proprietorship Firm, AND 1) SRI TAPAS KUMAR DUTTA, 2) SMT. BAKUL DUTTA  (herein after called the Opposite Parties or O Ps) alleging deficiency of service on their part.

            The factual matrix of the case is that the complainant with the desire to purchase a Roof Covered Car Parking Space from the Opposite Party / Developer, Saugata Kundu, the plan of which has already been duly sanctioned and approved by the K.M.C under Regularised Plan under serial No. 25/11-12 dtd. 24.09.2011 entered into an Agreement for Sale dtd. 8.1.2012 to purchase a Roof Covered Car Parking Space from the said Project measuring more or less super built up area 176 sqft. on  the Ground floor ( at the Middle portion of the Front Row) of the G+ III Storied building together with the common share & interest  in the land underneath along with the right upon the common areas, facilities, amenities etc. at K.M.C. Premises No. 1064/8, Brahmapur, Kolkata–700096 (Previously Kolkata-700084), with the sole Proprietor Sri Saugata Kundu of a Proprietorship Firm, having its office at 4/27, Netaji Nagar, P.S. Jadavpur, Kolkata 700040, District:24 Parganas, for a total consideration of 1,50,000/-( Rupees One Lakh Fifty Thousand)only and till date from time to time a sum of Rs. 1,46,000/- has been paid. After constructing the building the O P No. 1 handed over the possession of the Roof Covered Car Parking Space to the complainant but the OP / Developer neither issued any possession letter nor did execute and register the Deed of Conveyance for which the complainant filed the instant complaint praying for execution and registration of the Deed of Conveyance in respect of the said Roof Covered Car Parking Space, either by the O Ps or by this Commission, an award of Rs. 2,05.000/- including the cost of the suit cost and other reliefs as this Commission may think fit.

The Complainants submitted copies of some money receipts issued by O P No. 1 and copy of Title Deed being no. 4477 of 1993, KMC Tax Receipt, Registered General Power of Attorney dtd.6.5.2009 Being No.00644 of 2009 registered at ADSR, Alipore, Joint venture Agreement duly notarised on 12.05.09, Regularised Plan being serial no. 25/11-12 dtd.24.09.11,

On serving Notice upon the O Ps, O P No.1 appeared through his Ld. Advocate and filed written version in respect of the complaint on18.02.2022.O P Nos. 2&3 did not appear despite satisfactory service of notice upon them neither filed any written statement and so vide order dtd.19.5.2022 the case proceeded exparte against the Opp. No. 2&3.Thereafter, the Complainant filed a petition supported by affidavit to treat the Complaint petition as her Affidavit-in-Chief. Subsequently O P No. 1 also filed a petition duly supported by affidavit not to adduce any evidence. Ultimately arguments were heard.  Both the Complainant and the Opp. No. 1 filed their respective brief notes of argument.

Having gone through the statement of the complaint, submitted records, written versions of the OPs, and brief notes of argument now the only points required determination is whether the complainant is entitled to get reliefs as prayed for?

Decision with reasons

         It is a matter of fact that the Complainant made an Agreement for Sale on 08.01.2012, which was notarised on 10.012012, where the complainant/ Smt. Namita Srivastava, has signed as Purchaser, Sri Saugata Kundu being the O P No.1 signed as Developer and sole Proprietor of Igloo and O P Nos. 2& 3 being represented by Saugata Kundu signed on behalf of the Land Owners as their Constituted Attorney, for purchasing the subject car parking space at a total consideration of Rs. 1,50,000/- and the complainant paid Rs. 1,46,000/- to the O P No. 1 at the time of signing of the Agreement .The money receipts of which has duly been acknowledged by the Developer. O P Nos. 2, 3 are the owners of the premises where the G+ III has been constructed by the Developer i.e., the O P No. 1 So the complainant is a Consumer to the Opposite Parties as defined by Section 2(7)(ii) of the C P Act, 2019.

On perusal of the records it appears that OP. No. 1 is contesting the case by filing written version and BNA contending specifically that he is ready and willing to execute and register the Roof Covered Car Parking Space in dispute in favour of the complainant. Initially due to the then financial problem of the complainant herself deferred the process of registration afterwards when the complainant started to take initiative to get the required Deed of Sale be executed and registered, since present changed system of registration process  requires the individual PAN Card & Aadhar Card of the Land owners to materialize the process. Though the Developer / OP No. 1 verbally requested the OP Nos. 2 & 3 (being the land owners) of the project, to provide their PAN Card & Aadhar Card so that those can be handed over to the complainant for the purpose of processing registration of the required Deed of Sale, but the OP Nos. 2 & 3 never cared to respond against the verbal request of the OP No. 1.

Therefore, it is evident there is as such no dispute in between the Developer and the Purchaser / complainant to conclude the transaction by way of execution and registration of the required deed of sale on receipt of the balance amount of the total settled consideration amount. The Developer had and has always remained ever ready and willing to handover the possession of the car parking space to the Purchaser / complainant. But as per the provision of the registration system due to non-availability of the documents of the land owners as also for the absolute non-cooperation by the land owners the process of preparation execution and registration of the deed of sale could not be matured. The OP No. 1 being the Developer is ready and willing to cooperate to do the needful to conclude the transaction smoothly.

It shows the conduct of the OP Nos. 2&3 were not at all consumer friendly and there is apparent deficiency in service and as such the complainant has to initiate action under the perview of the C.P.Act 2019.  So deficiency must have been caused from the part of the O. Ps. landowners

Upon a careful scrutiny of the facts and circumstances of the case from all angles, we are of the concrete view that there is a gross deficiency in providing promised service to the consumer/complainant occurred due to latches on the part of the Opposite Parties No.2&3 for which the complainant has every right to get relief for such deficiency in service. Hence the OP Nos 2&3 are jointly liable to pay a sum of Rs. 10,000/- as compensation and Rs. 5000/-as litigation cost.

In view of the aforesaid facts and circumstances of the case and upon considering the submission made by the Ld. Advocate appearing for the respective parties and  the material on record it won’t be wise to expect identity documents like PAN and Aadhar Card of the land owners to be submitted by the Developer / OP No. 1 for the obvious reason that the original documents like PAN and Aadhar Card are the personal documents of an individual and those personal documents cannot be procured by any other person unless those documents are supplied by the document holder. It is also a fact that Developer had already been empowered to execute the deed of conveyance on behalf of the land owners. It is also specifically mentioned in the said General Power of Attorney execute the deed of conveyance on behalf of the land owners in favour of the complainant as required. Therefore, we do not find any legal inpediment for the Developer to execute and register the Deed of Conveyance in favour of the Complainant which would definitely sub-serve justice and so to protect interest of the complainant / purchaser the production of the document like PAN and Aadhar Card of the land owners before the registering authority ought to be dispensed with.

Hence,

               it is

              ORDERED

That CC/562/2021 is allowed on contest against the OP No. 1 and exparte against the land owners i.e. OP Nos. 2 & 3. 

The OP No. 1 being the Developer of the project is directed to execute and register the necessary deed of conveyance in favour of the complainant upon receiving the balance consideration price from the Complainant in respect of the car parking space as per Agreement dtd 8.1.2012 within 60 days from the date of passing of this order. Accordingly the production of PAN and Aadhar Card of the land owners before the concerned Registering Authority stands dispensed with. The cost of registration shall be borne by the complainant.

The OP Nos. 2&3 are directed to pay jointly and severallyRs.10,000/-as compensation and a sum of Rs.5000/- as litigation cost failing which the aforesaid sum shall carry an interest @10% of the total sum till full and final realization.