The case of the complainant in brief is that the complainant entered into an agreement on 22.02.2015 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 240 Sq.ft. on the ground floor of the G+1 storied building to be constructed by the OPs on the land of the landowners for a total consideration amount of Rs. 4, 25,000/-.
After the demise of the land owner, a supplementary development agreement was executed between the legal heirs of landowner i.e. OP nos.3,4 and 5 and the OP nos. 1 and 2. It is stated in the petition of complaint that the complainant made payment of Rs.40, 000/ on 20.02.2015 towards the advance money of the said flats and paid total consideration amount receiving the same the OP issued Memo of Consideration. Accordingly the Complainant paid Rs.4, 00,000/ from the year 2015 to 2016 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 favour of the complainant in respect of the said flat on 20.03.2017. Immediately after giving possession certificate the physical possession of the flat has 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 16.12.2021 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 a letter dated 30.11.2021 requested the OP - developer to execute the deed of conveyance in respect of the aforesaid flat in favour of the complainant but OP Nos.1and 2 did nothing to that effect. 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.
In spite 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 material allegations leveled against them stating that on 15.02.2015 an agreement for sale was executed by and between the complainant , OP-developer and OP-landowner.
As per the said agreement, a flat being No. ‘C’ measuring a super built up area of 240 Sq.ft. described in Schedule – ‘B’ of the said agreement was agreed to sell to the complainant for a total consideration of Rs. 4, 25,000. 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 alleged that OPs did not execute and register the deed of conveyance in favour of the Complainant.
On perusal of the record, it appears that the complainant entered into an Agreement for Sale on 22.02.2015 with the landowner and developer. As per the said agreement, the developer agreed to execute and register the deed of conveyance in favour of the complainant.
On perusal of the record 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. Since the complainant entered into a tripartite agreement with the OP – developer and OP- landowner and after 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 required to be done.
It further appears that although the Complainant paid entire consideration amount in the year 2016, till date the registration of the deed of conveyance has not been done by the OPs. As per the said agreement, OPs were under obligation to do the same. Deviation from such promise to register the deed of conveyance in favour of the Complainant amounts to deficiency in service on the part of the OPs.
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/175/2020 is allowed ex-parte against OP Nos. 3, 4 and 5 and on contest against O.P. Nos. 1 and 2 with cost.
O.ps. are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flats as per schedule B of the agreement dated 22.02.2015 within 45 days from this date of order.
O.Ps. 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 failing which entire amount shall carry interest @ 12%p.a.
Let plain copy of this order be supplied to the parties free of cost.
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
