The case of the complainant in brief is that the complainant entered into an agreement on 15.02.2015 with the OPs 1 and 2 and the landowner of the property for purchasing self contained residential flat measuring a super built up area of 360 Sq.ft. on the ground floor of the G+1 storied building constructed by the OPs on the land of the landowners for a total consideration amount of Rs. 6, 25,000/. The Complainant had entered another Agreement for Sale with the same Opposite Parties on 20.02.2015 for purchasing a self contained residential flat measuring a super built up area of 354 sq. ft. on the 1st floor of the said G+1 storied building at a consideration amount of Rs.8,50,000/.
Immediately after that the landowner passed away and a supplementary development agreement was executed between the legal heirs of landowner and the OP nos. 1 and 2. It is stated in the petition of complaint that the complainant made payment of Rs. 50,000/- on 15.02.2015 and Rs. 40,000/- on 20.02.2015 towards the advance money of the said flats. The OPs receiving the same issued Memo of Consideration. The complainant promised to pay the balance amount of consideration of Rs. 5, 75,000/- and Rs. 8, 10,000/- within 24 months i.e. 19.02.2016 through several installments. Accordingly the Complainant paid Rs.14, 75,000/ from the year 2015 to 2017 to the OP-developer. It is further stated in the petition of complaint that after completion of the aforesaid building, the OP-developer issued two possession certificates in the favour of the complainant in respect of the said two flats on 20.03.2017. Immediately after receiving possession certificate the physical possession of the flats have been handed over to the complainant. Thereafter on several occasions, the complainant requested the OPs to execute and register deed of conveyance in favour of the complainant. In reply the OP-developer by sending letter dated 14.12.2021 expressed their inability for the execution of the deed of conveyance stating that since the legal heirs of the deceased land owner did not execute any power of attorney in favour of the developer, he was unable to arrange deed of conveyance in favour of the complainant .It is further stated in the petition of complaint that the OP-developer on several occasions requested the legal heirs of the land owner to extend their co-operations towards of the deed of conveyance but the legal heirs declined to do so. Therefore, the OP-developer was unable to execute deed of conveyance until and unless the power of attorney is executed in favour of the developer. It is further stated in the petition of complaint that taking advantage of this situation the legal heirs of the deceased landowner have forcefully ousted the complainant and his family members from those two flats for which the complainant made agreement for sale and got the possession from the developer after paying the entire consideration amount as per the agreement executed by and between the parties. Thereafter, the complainant by sending advocate’s letter dated 28.02.2022 requested the OP - developer to execute the deed of conveyance in respect of the aforesaid two flats in favour of the complainant but OP Nos. 3, 4 and 5 refused to receive the said letter. Hence, this case.
Complainant filed this case praying for direction upon the O.Ps. to execute a deed of conveyance in respect of the flat describe in the Schedule – ‘B’ of the agreement dated 15.02.2015 in favour of the complainant, to pay compensation and litigation cost.
Inspite of service of notice, OP Nos. 3 and 5 had not filed written version hence the case was proceed ex-parte against OP Nos. 3 and 5 vide order 3 dated 10.08.2022 and OP No. 4 vide order no. 04 dated 03.11.2022. OP Nos. 1 and 2 contested this case by filing written version denying and disputing all materials allegation leveled against them stating that on 15.02.2015 an agreement for sale was executed by and between the complainant and OP Nos. 1 and 2 .
As per the said agreement, a flat being No. ‘B’ measuring a super built up area of 360 Sq.ft. agreed to sale to the complainant for a total consideration of Rs. 6, 25,000/- and another flat described in Schedule – ‘A’ of the said agreement was agreed to sell to the complainant measuring a super built up area of 354 Sq.ft. on the first floor of the multi storied building for a total consideration of Rs. 8, 50,000/-. As per the agreement, the OP – developer and land owner have agreed to execute the deed of conveyance in favour of the complainant. After the death of the land owner, his legal heirs became the land owners of the property and a supplementary Development Agreement was executed on 25.11.2015 but the present land owners revoked the Power of Attorney in respect of Developer’s allocation. On several occasions, the OP – developer requested legal heirs of the deceased landowner to execute a power of attorney in favour of the OP – developer to enable him to execute the deed of conveyance in respect of the purchasers but they declined to do so. OP– developer further stated that they are willing to execute the deed of conveyance in respect of the flat of the complainant and prayed for passing necessary order in accordance with law.
Points for determination
- Whether there is deficiency in service on the part of the OPs.
- Whether the complainant is entitled to get the relief as prayed for.
Decision with reasons
Point No.1
Complainant filed this case praying for direction to execute the deed of conveyance in respect of the flats of him described in the Schedule – ‘B’ of the agreement for sale dated 15.02.2015 and 20.02.2015.
On perusal of the record, it appears that the complainant entered into two Agreement for Sale on 15.02.2015 and 20.02.2015 with the landowner and developer.
As per the said agreement, the developer was under obligation to execute and register the deed of conveyance in favour of the complainant.
On perusal of the letter dated 16.12.2021 sent by the OP – developer, it appears that OP – developer is willing to execute the deed of conveyance but on the occurrence of the death of the landowner the power of attorney was revoked and until and unless the legal heirs of the landowner did not execute the power of attorney in favour of the OP – developer he is unable to execute the deed of conveyance in the favour of the complainant. The legal heirs of the landowner i.e. OP Nos. 3, 4 and 5 did not contest this case. Since the complainant entered into a tripartite agreement with the OP – developer and OP- landowner thereafter demise of the landowner, a supplementary development agreement was executed by and between the legal heirs of landowner and OP – developer. Since the OP-developer handed over the possession of the flats to the Complainant, only registration part of the same is to be done.
Point no. 1 is decided accordingly.
Point No. 2
Further the inaction of the OPs compelled the complainant to suffer mental agony and pain and to file this case. Hence, OPs are liable to pay compensation of Rs 30,000/ and litigation cost of Rs. 20,000/- to the complainant.
Point No.2 is decided accordingly.
In the result, the petition of complaint succeeds.
Hence, it is,
Ordered
that the complaint case being No. CC/179/2022 is allowed ex-parte against OP Nos. 3, 4 and 5 and on contest with OP Nos. 1 and 2 with cost.
OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flats as per agreement dated 15.02.2015 and 20.02.2015 within 45 days from this date of order.
OPs are further directed to pay Rs. 30,000/- as compensation and Rs. 20,000/- as litigation cost to the complainant within 45 days from this date of order.
Let plain copy of this order be supplied to the parties free of cost.
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
