Date of filing: 05/03/2019

Judgment date: 08/06/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by Sri Subrata Kar under section 12 of the Consumer Protection Act, 1986 against opposite parties (referred as O.P. hereinafter) namely (1)Sri Sudipta Mukherjee (2)Sri Swapna Deep Halder (3)(a) Sri Sushanta Kundr (3)(b) Sri Samir Kundu (3)(c) Sri Dipankar Kundu (3)(d) Sri Manor Kundu (3)(e) Smt. Biva Nandi (3)(f) Smt. Archna Roy (3)(g) Smt. Madhabi Dey and (3)(h) Smt. Uma Saha alleging deficiency in service on the part of the OPs.

Case of the complainant in short is that by an agreement for sale dated 28/02/2013 entered into between the OP 1 & 2 and mother of OP 3(a) to (3)(h) namely Jamuna Kundu (since deceased), complainant agreed to purchase a flat measuring 480 sq. ft. as described in the 2^nd schedule of the said agreement at a total consideration price of Rs. 8,65,000/-. Complainant has paid a sum of Rs. 8,23,661/- out of the total consideration price of Rs. 8,65,000/-. Only a sum of Rs. 41,339/- is lying due which was to be paid at the time of the registration of the flat. Complainant has been delivered the possession of the flat on 25/10/2016 but in spite of repeated request the deed of conveyance has not been executed and registered in favour of the complainant and thus the present complaint has been filed praying to direct the opposite parties to complete the registration and execution of the deed of conveyance in respect of the flat in favour of the complainant, to hand over the completion certificate, to pay Rs. 5,00,000/- for mental agony and trauma, to pay Rs. 1,00,000/- as litigation cost and further sum of Rs. 1,00,000/- as compensation for deficiency in service.

OP 1 is contesting the case by filing the written version denying and disputing allegation contending specifically that the owner Jamuna Kundu (since deceased) had revoked the general power of attorney. However, he had agreed to execute the deed of conveyance in favour of the complainant but after payment of remaining sum of Rs. 41,339/-. But the complainant failed and neglected to pay the balance amount of Rs. 41,339/-. So OP 1 has prayed for dismissal of the case.

OP 2 is also contesting the case by filing a separate written version contending specifically that he was always ready for registration of the flat in favour of the complainant. It is also stated that OP 1 had ousted him from the said partnership business. So OP 2 has also prayed for dismissal of the complaint,.

OP 3(a) is also contesting the case by filing a separate written version contending specifically that the development agreement was entered into between the developer and the Jamuna Kundu (since deceased). It is further specifically stated he is ready and willing to execute and register the flat in favour of the complainant at the expenses of the complainant. OP (3)(a) has also prayed for dismissal of the complaint.

OP (3)(b) and (3)(g) have also filed a separate written version stating that complainant himself is negligent and did not pay the sum of Rs. 41,339/- to the OP 1. OP (3)(b) and (3)(g) at no point of time refused to register the deed of conveyance and it was the complainant himself who did not take any step towards the registration. So OP (3)(b) and (3)(g) have also prayed for dismissal of the complaint.

OP (3)(c) and (3)(d) have filed separate written version contending inter-alia that complainant himself was not ready to complete the registration and there was no deficiency on the part of the opposite parties. So they have also prayed for dismissal of the complaint.

During the course of evidence both parties filed their respective affidavit in chief followed by filing of questionnaire and reply and ultimately at the time of argument brief notes of argument was filed by the complainant. OP 1, (3)(b) and (3)(g) have also filed the brief notes of argument but other OPs did not appear during argument neither filed any written argument.

So the following points require determination:

1. Whether there has been any deficiency in rendering of service on the part of the opposite parties?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

Both the points are taken up for a comprehensive discussions. It is an admitted fact that the development agreement was entered into between the OP 1 and 2 as developers with Jumana Kundu (since deceased) as owner. OP (3)(a) to (3)(h) are the legal heirs of the said owner namely Jamuna Kundu (since deceased). There is also no dispute that an agreement for sale dated 28/02/2013 was entered into between the complainant and OP 1 & 2 as constituted attorney of the owner and also as developer, to sell the flat to the complainant as described in the 2^nd schedule of the said agreement at a total consideration price of Rs. 8,65,000/-. It is also evident from the written version filed by the OP 1 & 2 that there is no dispute that the complainant has paid a total sum of Rs. 8,23,661/- out of the total consideration price of Rs. 8,65,000/-,  to OP developers. Even though OP 1 & 2 by filing the separate written version have blamed each other but the same has no relevance so far as the relief sought for by the complainant is concerned. Admittedly a sum of Rs. 41,339/- is due to be paid by the complainant. Complainant has been handed over the possession on 25/10/2016 and  since then he is in possession of the flat.

The specific contention of the opposite parties appears to be that it was the complainant himself who did not take any step towards the registration and did not ask the original land lady. It is also contended by OP 1 that the complainant failed to pay the balance amount of Rs. 41,339/-. It appears from the agreement for sale entered into between the parties that there is a payment schedule which is very categorical that Rs. 15,000/- was to be paid at the time of execution and registration of the deed of conveyance. So only Rs. 15,000/- was to be left due for the purpose of registration but the complainant was liable to pay the rest of the amount before such registration. But the complainant left Rs. 41,339/- as due. So it is evident that the complainant himself also has not made the payment in terms of the payment schedule and thus even though he is entitled to the execution and registration of the deed of conveyance in his favour but we find no justification to pass any order of compensation as prayed by the complainant. Since on the death of owner who had executed the power of attorney in favour of OP 1 & 2, has lost its effect, OP (3)(a) to (3)(h) are liable to execute and register the deed in favour of the complainant and OP 1 & 2 being developer will be the confirming party.

Hence

            ORDERED

CC/136/2019 is allowed on contest. Opposite parties are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant as per agreement for sale dated 28/02/2013, within two months from this date on payment of the balance consideration price of Rs. 41,339/- by the complainant to OP 1 & 2. OP 1 & 2 are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months.