Date of filing : 21.12.2018

Judgment : Dt.13.9.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Chandrawati Singh alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Surajit Singh Soni, (2) Sri Narayan Misra, (3) Sri Joy Prakash Mishra, (4) Smt. Meera Devi, (5) Sri Barun Kumar Mishra, (6) Sri Abhishek Kumar Mishra and (7) Smt. Swati Mishra.

            Case of the Complainant, in short, is that the OP No.2 to 7 are the owners of Municipal Premises No.16, Lake Gardens, Kolkata. Complainant was a tenant under OP No.2 & 3 and predecessor-in-interest of OP No.4 to 7 namely Ashok Kumar Mishra (Now deceased). A development agreement dt.22.4.2010 was entered into between OP No.2, 3 and predecessor-in-interest of OP No.4 to 7 the owners and OP No.1 the developer, to develop the property being contiguous two plots measuring 10 cottahs 2 sq.ft. situated under Mouza – Arakpur, commonly known as Mollahati village, J.L.No.39, R.S.No.42, comprised in C.S.Dag No.1, being the part of Municipal premises No.16 Lake Gardens. The Complainant was approached by the OP No.2 & 3 and predecessor-in-interest of OP No.4 to 7 to vacate her occupied tenanted area for construction of the building in terms of the said development agreement. So, an agreement was executed by and between the parties on 16.11.2011, whereby it was agreed that the OP shall provide all that one residential flat containing an area of 400 sq.ft in the ground floor of the new proposed building to the Complainant. So, as per the terms of the agreement, Complainant had to vacate the possession of her occupied tenanted area to the OPs and OP No.1 constructed the building and after a long lapse of deliberations,  Complainant was handed over the flat as agreed, by the OP No.1 in the ground floor but without issuing any possession letter. But in spite of her repeated requests, OPs have not executed the deed of conveyance in her favour. So, a notice was sent dt.25.6.2018 by the Complainant through her Ld. Advocate to the OPs. OP No.1 replied to the notice stating that he was ready to execute and register the deed of conveyance, but demanded huge amount of maintenance charge as well as sinking fund deposit. The petitioner has paid maintenance charge to the OPs but they have not executed the deed of conveyance. So, as the deed of conveyance was not executed, ultimately the present complaint has been filed by the Complainant praying for directing the OPs to execute and register the deed of conveyance in favour of the Complainant in respect of the flat as described in the schedule, to direct the OPs, particularly the OP No.1 to pay compensation of Rs.1,00,000/-, to pay damages of Rs.1,00,000/- and for litigation cost and incidental charges.

            Complainant has filed agreement in question dt.16.11.2011 entered into between the parties, copy of the notice sent to the OPs dt.25.6.2018 and the reply sent by the OP No.1 dt.28.7.2018.

            On perusal of the record, it appears that notice was sent and in spite of service of the notice by way of paper publication, only OP No.1 took step. No step was taken by OP No.2 to 7. Even though, OP No.1 appeared, but no written version was filed and thus vide order dt.3.6.2019, the case was directed to be proceeded ex-parte.

            During the course of evidence, Complainant filed the examination-in-chief and ultimately advanced the argument.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

Decision with reasons

In support of her claim that she was a tenant under OP No.2, 3 and predecessor-in-interest of OP No.4 to 7 and they entered into a development agreement with OP No.1 and consequent to the same she vacated her tenanted occupied portion, Complainant has filed agreement dt.16.11.2011 entered into between the Complainant and the OP No.1, OP No.2 & 3 and the predecessor-in-interest of OP No.4 to 7 namely Ashok Kumar Mishra.

On perusal of the agreement dt.16.11.2011, it appears that it contains specific terms that the parties agreed that the Complainant would be provided a residential flat measuring an area of 400 sq.ft. built up area on ownership basis in the ground floor in the new building proposed to be constructed. It is specifically stated in the agreement that it was agreed between the parties that the Complainant shall deliver peaceful and vacant possession in favour of the developer/owner within 31^st December from the execution of the said agreement. It has also been agreed that delivering of the possession of the rented portion by the Complainant to the OP namely developer/owners, would be considered as consideration towards the said transaction of providing one flat as agreed to the Complainant. It is claimed by the Complainant that she has already been delivered the possession but deed has not been executed in her favour. On consideration of the recital of the agreement dt.16.11.2011 referred to above. OPs were liable to execute the  deed of conveyance in favour of the Complainant. So, as it has not been executed there has been deficiency of service and thus Complainant is entitled to the said relief specially when before this Forum there is no contrary material to rebut or counter the claim of the Complainant. Complainant is also entitled to compensation as she will have to bear the cost towards registration as per present market value.

Hence it is

                            ordered

CC/685/2018 is allowed ex-parte. OPs are directed to execute the deed of conveyance in favour of the Complainant in respect of the flat as per agreement within three months from the date of passing of this order. They are further directed to pay Rs.50,000/- as compensation and litigation cost of Rs.10,000/- within the aforesaid period of three months.