Final Order
Banani Mohanta(Ganguli), Member: An application has been filed by the complainant u/s-12 of C.P. Act, 1986 against the O.Ps. alleging deficiency in service for non executing and registering the deed of conveyance in respect of the schedule flat and prays for a direction to be given upon the O.Ps to execute and register the deed of conveyance in respect of the schedule flat in favour of the complainant and further prays for compensation amounting to Rs. 5,00,000/- for causing damages to the complainant due to efflux of time towards the increase of the valuation and including the non completion of the flat with full construction as agreed by the O.Ps and further prays for payment of cost of N.J. Stamp paper of Rs. 13870/ along with interest @ 24% p.a for damaging the same for not executing the same in time and further Rs.5,000/ for its preparation cost and further prays for litigation cost Rs.30,000/.
The brief facts of the case of the complainant is that the complainant entered into an agreement for sale dt. 21.04.2006 with the O.P No: 2, the developer, to purchase a self contained flat measuring about 350 sq.ft in the north side being Flat No: 102 on the first floor of the proposed building being constructed over the land of O.P No: 1, being the owner of plot having area of 2 kottah 8 chittaks lying and situated at Mouza: Bally, J.L No: 14, R.S Dag No: 17658 and Dag No: 17657/19644 under Khatian No; 3016 & 8537, under Bally Municipality, being holding No: 28/B, Thakur Ram Krishna Lane, Ward No: 10, P.S: Bally, Dist: Howrah, who gave power of attorney to the O.P No: 2, the developer and a development agreement was prepared in between the O.P developer and the O.P land owner dated 16.12.2003, and total consideration money was fixed at Rs.2,10,000/ and out of such amount the complainant has paid Rs. 1,30,000/ on the date of such agreement for sale and he further paid Rs. 75,000/ on different dates, totaling Rs. 2,05,000/ out of total consideration amount to the O.P developer and the balance of Rs.5000/ is due and it was agreed between the parties that the complainant would pay the balance consideration amount on the date of execution and registration of deed of conveyance.
It is further stated by the complainant that the possession of the schedule flat was given by the O.P developer on 27.01.2007 and the complainant is using and occupying the same since then but the O.Ps did not execute and register the deed of sale in respect of the said flat in his favour.
It is further alleged by the complainant that after several requests the O.Ps were agreed to execute and register the said flat and according to their words the complainant purchased N.J stamp paper of Rs. 13,870/ and got the sale deed typed on them through an advocate and paid fees of Rs.5000/ to him as fees and requested the O.Ps to fix a date for execution and registration of the deed of conveyance but the O.Ps deferred the dates several times on some false pretexts. Ultimately the validity period of the said N.J stamps were expired due to non-execution and registration of the same and the complainant has suffered a financial loss of Rs.18,870/ due to deliberate latches on the part of the O.Ps.The complainant thereafter requested them to execute and register the deed of conveyance in respect of the flat on several times but the O.Ps did not bother to do the same but continued to take several dates and the complainant waited for about 10 long years with an expectation that the O.Ps would come one day and the flat would be got registered but in vain. The complainant lost his patient and sent a legal notice to the O.Ps through his Ld. Advocate on 16.03.2018 but it was returned with an endorsement ‘left and not found’. The complainant is therefore alleges negligence, unfair trade practice, deficiency in service against the O.Ps and finding no other alternative instituted this case for proper redressal and prays for the reliefs as stated herein above.
The complainant filed the Xerox documents such as money receipts, copy of agreement for sale dt. 21.04.2006, copy of advocate letter dt.16.03.2018, copy of draft deed typed in stamp papers, copy of Aadhar card copy of electric bill in order to prove his case.
The notices were sent to the O.Ps. and it is seen from the order sheets that despite several attempts notices could not be served upon them. Ultimately paper publication was made in a daily news paper. Despite so the O.Ps did not turn up. Therefore, the case has been proceeded ex-parte against them.
From the complaint petition, documents filed and evidence adduced by the complainant, the following points have been framed:-
- Is the complainant consumers of the O.Ps.?
- Are the O.Ps service providers and caused deficiency in providing service towards the complainant?
- Is the complainant entitled to get any relief as prayed for?
DECISION WITH REASONS
All the points are taken together for the sake of brevity, convenience for discussion and for avoidance of repetition of facts.
It is evident from the evidence adduced by the complainant that the complainant entered into an agreement for sale dt. 21.04.2006 with the O.P No: 2, the developer, to purchase a self contained flat measuring about 350 sq.ft in the north side being Flat No: 102 on the first floor of the proposed building being constructed over the land of O.P No: 1, being the owner of plot having area of 2 kottah 8 chittaks lying and situated at Mouza: Bally, J.L No: 14, R.S Dag No: 17658 and Dag No: 17657/19644 under Khatian No; 3016 & 8537, under Bally Municipality, being holding No: 28/B, Thakur Ram Krishna Lane, Ward No: 10, P.S: Bally, Dist: Howrah, who gave power of attorney to the O.P No: 2, the developer and a development agreement was prepared in between the O.P developer and the O.P land owner dated 16.12.2003, and total consideration money was fixed at Rs.2,10,000/ and out of such amount the complainant has paid Rs. 1,30,000/ on the date of such agreement for sale and he further paid Rs. 75,000/ on different dates, totaling Rs. 2,05,000/ out of total consideration amount to the O.P developer and the balance of Rs.5000/ is due and it was agreed between the parties that the complainant would pay the balance consideration amount on the date of execution and registration of deed of conveyance.
Here, the O.PNo:1 is the land owner of the above premises and the O.P No: 2 the developer who constructed the building on the land of the land owner by virtue of the development agreement. The O.P developer handed over the possession of the said flat to the complainant and the complainant has been possessing and enjoying the same. But the O.Ps despite receiving almost full consideration amount did not execute and register the deed of conveyance in favour of the complainant, though the complainant is ready and willing to pay the balance consideration amount of Rs.5000/. He also purchased the N.J stamp paper and the sale deed was typed on it but the O.Ps deliberately with an ulterior motive did not execute and register the deed of conveyance and the complainant has waited for about a decade for getting his flat registered but in vain. Finding no alternative, he sent legal notice but it was returned back and finally he filed this case for proper rederessal. Notices were sent to the O.Ps but were not served. The O.Ps despite paper publication in a Bengali daily ‘Sambad Pratidin’ dated 17.01.2019 did not turn up and therefore the case has been proceeded ex-parte against them.
Further, it is a settled principle of law that the cause of action will continue till conveyance deed is registered and completion certificate is obtained in respect of the property in question. Therefore, in our view the case is well maintainable in this Forum from the limitation point of view.
Therefore, in our view the complainant is a consumer as per the definition given u/s- 2(1)(d) of the C.P.Act,1986 and the dispute is a consumer dispute and the O.Ps were deficient is providing service towards the complainant.
The unchallenged testimony of the complainant proves his case.
The O.P landowner had given power of attorney to the O.P developer for development of his land and the O.P developer raised a multistory building on it. The O.P land owner somehow benefited from the O.P developer and we think that the O.P land owner is also responsible to some extent.
The registration of the flat is still pending and the O.Ps did not take any initiative to do the same. Several years have elapsed after the term of the agreement but the O.Ps remained silent over the matters as agitated by the complainant. Therefore, we hold the view that the O.Ps are deficient in service and the complainant is entitled to get relief but in part.
Further, it is seen from the testimony of the complainant and other materials on record that the construction of the building as well as the flat is not completed as yet as alleged by the complainant, but the complainant did not file any evidence regarding such or no local inspection or commission report has been filed by him and therefore we are unable to comment on that particular matter and no relief can be granted on that point.
Further, the complainant has stated that due to escalation of rate of registration charge he has to pay more and prayed for compensation. But not a single scrap of paper on this point has been filed by him to show the difference of rate of registration. In absence of such we are unable to pass any order and award any amount for that. But the complainant has purchased N.J stamp paper and sale deed was prepared through an Advocate and for that purpose he suffered a loss of Rs.18,870/ and we think that he is entitled to get the same from the O.Ps along with interest @8% p.a.
Further, it is seen that the O.Ps failed to perform all such contractual obligations even after elapsing several years from the date of agreement. The complainant has to bear the sufferings for all these years due to the O.Ps. The O.P developer and the O.P landowner did not show any interest to get the registration of the flat of the complainant.
Hence, we hold the view that both the O.Ps are not only deficient but also negligent in providing service and they should pay compensation to the complainant.
Regarding the quantum of compensation and litigation cost we think that an amount of Rs.25,000/ and Rs.5,000/ respectively are just and proper and commensurate in respect of the instant case for the sufferings, harassment, mental agony etc. and the O.Ps are required to pay the same.
All the points thus discussed and disposed of in favor of the complainant. Therefore, the case of the complainant is succeeded but in part.
Hence
It is ordered that the Consumer Complaint, being No: CC- 134 of 2018 is allowed ex-parte against the O.Ps with cost.
Both the O.Ps are jointly and severally directed to execute and register the deed of conveyance in respect of the flat in question, as mentioned in the schedule of the agreement as well as in the complaint petition, in favor of the complainant within two months from the date of this order.
The complainant is directed to pay the balance consideration amount of Rs.5000/ to the O.P developer before execution and registration of deed of conveyance.
Both the O.Ps are jointly and severally directed to pay Rs.18,870/ along with interest @8% p.a to the Complainant for causing loss to the complainant for purchasing N.J stamp paper and draft charges, and the interest shall be calculated from the date of purchase of the stamp papers i.e 12.05.2008 till realization.
The O.Ps are further jointly and severally directed to pay compensation and litigation cost of Rs.25,000/ and Rs 5,000/ respectively to the complainant within two months from the date of this order.
In default of any portion of this order the complainant may put the order under execution by filing an execution application as per the provisions of the C.P Act,1986 and may seek for execution and registration of the flat in question be done through the intervention of the Forum by appointing any commissioner.
Let free copies be given to the parties concerned as per C.P.R-2005.
Dictated and corrected by me.
Member
