Judgment : Dt.28.4.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under Section 12 of C. P.Act, 1986 by Kamalendu Chanda alleging deficiency in service on the part of (1) Sri Sujit Ghosh, (2) Sri Supriyo Ghosh, (3) Sri Sunanda Ghosh, (4) Sri Subrata Ghosh, (5) M/s S. S. Construction, a registered partnership firm, (6) Sri Swapan Bhatta and (7) Sri Sajal Bhatta.

            Case of the Complainant is that the Complainant entered into an agreement for sale to hire housing construction service in respect of a flat being No.A1, Sovona Apartment, 218, Sreerampore East, P.S.-Patuli, Kolkata-700 084 at a consideration of Rs.5,55,000/- on 28.11.2004 out of which the Complainant paid Rs.1,50,000/- as earnest money by vide cheque being No.304461 dt.18.5.2004 and paid rest of the amount i.e. Rs.4,05,000/- on 28.11.2004 and since then the Complainant has been enjoying the possession of the said flat. The Complainant further stated that in spite of receiving total consideration amount the OP did not execute and register the deed of conveyance in favour of the Complainant despite repeated reminders and request from the end of the Complainant. On 26.8.2016 the Complainant sent a legal notice through his Ld. Advocate and the same has been duly received by the OPs but, in spite of that the OPs did not pay any heed to that request and remain silent. The Complainant has alleged that the OPs have adopted unfair trade practice for which they are jointly or severally liable to compensate the Complainant adequately. Accordingly, the Complainant has prayed for direction upon the OPs to register the deed of conveyance within a stipulated time and to the full satisfaction under the instruction of the Complainant, to pay Rs.5,00,000/- towards compensation and Rs.30,000/- towards cost of litigation to the Complainant.

The OP Nos.5, 6 & 7 i.e. the developers have appeared and contested the case by filing written version stating, inter alia, that after receiving the entire amount of consideration they have delivered possession of the flat in question to the Complainant. Subsequently, they had initiated execution and registration of deed of conveyance but the Complainant himself prayed for a spell of time due to his financial constraint. The OP developers in an unequivocal language has submitted that they have been ready and willing to execute and register the deed of conveyance in respect of the flat in question on any date.

            The Complainant adduced evidence on affidavit.

In course of hearing Ld. Advocate for the Complainant has submitted that the developers have failed and neglected to execute the deed of conveyance in favour of the Complainant for which they are liable to compensate the Complainant by paying a sum of Rs.5,00,000/-.

            Ld. Advocate for OP developer has submitted that they have no deficiency in providing service since the Complainant himself made delay for registration due to his financial constraints. Ld. Advocate for OP developers has further submitted that they are ready and willing to execute and register the deed of conveyance at any time convenient to the Complainant.

            It is also stated in the written version that no notice/letter has been received by them issued from the end of the Complainant.  Points for determination

Whether the Complainant is consumer under the OPs.

Whether there is deficiency in providing service on the part of the OPs.

Whether the Complainant is entitled to the relief as prayed for.

Decision with reasons

            Point No.1.

            Since the Complainant has availed housing construction service provided by the OPs against payment of consideration amount he is to be considered as a consumer under the OPs as per provision of Section 2(1)(d) of C.P.Act.

            Point Nos.2 & 3

            Both points are taken up together for comprehensive discussion of  decision.

            Admittedly, the Complainant entered into agreement for sale with the OPs in respect of a flat at an agreed amount of consideration. It is also admitted position is that the Complainant paid entire amount of consideration to the OP developers and the OP developers delivered possession of the said flat to the Complainant without making delay. Point of controversy is that the Complainant has stated that he on several occasions requested the OP developers to execute and register the deed of conveyance and even served a legal notice dt.26.8.2016 upon the OPs but they did not pay any heed to that which caused tremendous sufferings to the Complainant. On the other hand, the OP developers have submitted that they have never been approached by the Complainant for execution and registration of deed of conveyance.

            Under such circumstances, on perusal of the documents on record, it appears from the postal remark on the envelope containing said notice was ‘refused’ wherefrom it reveals that the Complainant had sent the notice to the OPs, which the OPs refused.

            Further, it is statutory obligation on the part of the developer to execute and register the deed of conveyance in favour of the purchaser. In the instant case the developers have not discharged their obligation since long. However, appearing before this Forum the OP developers have shown their promptness and willingness to execute the deed of conveyance. Keeping in mind the prompt delivery of possession of the said flat to the Complainant and now their willingness to execute and register the deed of conveyance in favour of the Complainant we are inclined not to pass any order as to compensation.

            The OP developers made the Complainant to file the instant case by not taking steps for registration of the deed in time. They are, therefore, liable to pay the cost of litigation which as per our assessment not less than Rs.15,000/-.

            Point Nos.2 & 3 answered accordingly.

            In the result, the complaint petition succeeds in part.

            Hence,

ordered

            That CC/6/2017 is allowed in part on contest against the OPs.

            The OPs are directed to execute and register the deed of conveyance in favour of Complainant within one month from the date of this order.

            The OP developers i.e. OP Nos. 5, 6 & 7 are directed to pay Rs.15,000/- towards cost of litigation to the Complainant within the aforesaid period.