Judgment : Dt.18.1.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986, by Arnab Sarkar and Smt. Kalyani Sarkar, alleging deficiency in service on the part of the OPs namely (1) Sri Subhasis Bose, (2) Sri Shirsendu Laha, (3) Sri Broja Gopal Ghoshal, (4) Sri Nani Gopal Ghoshal and (5) Ms. Jayati Ghoshal.

            Case of the Complainant in brief is that the Complainant entered into an agreement for sale on 19^th September, 2013 in respect of a self contained residential flat measuring about 720 sq.ft. super built up area being flat No.9 on the 2^nd floor at South west side of a proposed flat to be constructed within a piece of land situated at CS Plot No.3622 (P), Mouza-Kasba, J.L.No.13, P.S.-Kasba, now Garfa, within Kolkata Municipal Corporation under Ward No.105 being Municipal premises No.4, Jadabgarh Colony 1, P.S.-Kasba now Garfa, Kolkata-700 078.The said agreement was executed by and between the Complainant and OP Nos.1 & 2 / Developer who entered into a development agreement with the land owner being OP Nos.3, 4 & 5 and predecessor of  OP No.5 who had died subsequently in  respect of development of the said plot of land by constructing a multi storied building therein. As per terms of the said development agreement the developers were empowered to enter into agreement for sale, delivery of possession etc. with the prospective customer in respect of the developer’s allocation portion. The Complainants have stated that they paid Rs.10,00,000/- on the date of execution of the agreement for sale dt.19.9.2013 and thereafter paid the balance consideration amount of Rs.5,50,000/- to the developers and accordingly, the developers delivered possession of the said flat to the Complainant on 31.09.2016. It is the specific allegation of the Complainant that since then he had been requesting the OP developers for execution of registration of deed of conveyance but they turned the deaf ear to that request.

            It is further stated that the Complainants served legal notice through his Advocate upon the opposite party Nos.1 & 2 and receiving the same the OPs met the Complainants and requested him not to take any step against them since due to some inconvenience they could not finalise the matter but they would do it shortly. However, registration of deed of conveyance has not been taken place so far. Hence this case. Accordingly, the Complainant has prayed for direction upon the OPs to execute and register the deed of conveyance in respect of the flat in question, to pay Rs.3 lakh towards compensation, to pay Rs.50,000/- towards cost of litigation.

            OP Nos.1, 2, 3 & 5 appeared and contested the case by filing written version. The OP No.4 did not appear so the case was heard ex-parte against OP No.4 vide order No.6 dt.31.10.2017.

            In course of argument Ld. Advocate for the complainant has submitted that he had paid entire consideration, got possession of the flat in question since long and, thereafter the said flat should be registered in favour of him. Ld. Advocate for OP Nos.1, 2, 3 & 5 has submitted that the OPs are ready and willing to execute and register the flat in question in favour of the Complainant.

            The Complainant filed petition praying for treating the petition of complaint as affidavit-in-chief. The Complainant adduced photocopy of indenture of agreement dt.21.11.2010, agreement for sale dt.19.9.2013, money receipts dt.9.3.2014, 23.1.2014, 13.12.2013, 18.9.2013, 19.8.2013,  possession letterdt.31.9.2016, Advocate’s letter dt.10.4.2017.The OP also prayed for treating the written version as affidavit-in-chief. Neither of the parties filed questionnaire towards cross examination.

Decision with reasons

            Admittedly, the Complainant entered into an agreement or sale in respect of a flat measuring about 720 sq.ft. super built up area being flat No.9 on the 2^nd floor at South west side of a proposed flat to be constructed within a piece of land situated at CS Plot No.3622 (P), Mouza-Kasba, J.L.No.13, P.S.-Kasba, now Garfa, within Kolkata Municipal Corporation under Ward No.105 being Municipal premises No.4, Jadabgarh Colony 1, P.S.-Kasba now Garfa, Kolkata-700 078, and paid entire amount of consideration and received possession of the said flat. In course of hearing Ld. Advocate for contesting OPs have submitted that contesting OPs are ready and willing to execute and register the deed of conveyance in favour of the Complainant in respect of the flat in question. OP No.4 has not contested and, therefore, he may be represented by the machinery of this Forum.

            In the result, the petition of complaint succeeds on contest.

            Hence,

ordered

            That CC/373/2017 is allowed in part on contest against OP Nos.1, 2, 3 & 5 and ex-parte against OP No.4.

            OPs are directed to  execute and register the deed of conveyance in favour of the Complainant in respect of flat being No.9 on the 2^nd floor situated at CS Plot No.3622(P), Mouza-Kasba, J.L.No.13, P.S.-Kasba now Garfa within KMC Ward No.105, Municipal premises No.4, Jadabgarh Colony 1, P.S.-Kasba now Garfa, Kolkata-700 078 within one month from this order. OP No.4 will be represented by the machinery of this Forum.

            Since the order is being passed on consent, we inclined not to pass any order as to compensation and cost.