Dt. of filing – 27/04/2018
Dt. of Judgement – 01/10/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Gopal Ghosh under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sti Utpal Roy 2) Sri Dipak Bhattacharjee 3) Sri Dilip Kumar Bhattacharjee and 4) Smt. Saswati Mukherjee alleging deficiency in service on their part.
Case of the Complainant in short is that by an agreement for development dated 23/8/2001 Opposite Party No.1 and the predecessor in interest of Opposite Party No.2, 3 & 4 agreed to develop the land lying and situated at South Ghosh Para Sonarpur under Sonarpur Police Station and erected a partly G + II and partly G + III residential building. Subsequently by an agreement for sale dated 29/9/2002 Opposite Party No.1 and the predecessor in interest of Opposite Party No.2 to 4 agreed to sale the property described in the schedule of the complaint petition at a total consideration of Rs.1,40,000/-. Complainant has paid Rs.50,000/- to the Opposite Party No.1 and always been ready and willing to pay balance consideration amount. The possession of the schedule property has already been handed over to the Complainant on 18/2/2009 but the Deed of Conveyance has not been executed in his favour. So a notice dated 22/3/2018 was sent by the Complainant through his Ld. Advocate to the Opposite Parties requesting to execute the Deed of Conveyance in favour of the Complainant on receiving the balance consideration money of Rs.90,000/- but the Opposite Parties did not pay any heed. So, the present complaint has been filed praying to direct the Opposite Parties to execute and register the Deed of Conveyance, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.60,000/-.
Opposite Party No.1 has contested the case by filing written version admitting execution of the development agreement between him and the predecessor in interest of Opposite Party No.2 to 4 and also admitting the execution of agreement for sale dated 29/9/2002 with the Complainant. It is specifically contended by him that due to non co-operation of the Opposite Party No.2, 3 & 4, it was not possible for him to execute the Deed of Conveyance in favour of the Complainant after receiving the balance consideration.
Opposite Party No.2 to 4 also contested the case by filing separate written version contending inter alia that the present complaint has been filed by the Complainant after lapse of more than 16 years. It is contended that the alleged agreement with the Complainant is a manufactured document. They have challenged the signature of their deceased father. So, Opposite Party No.2 to 4 prayed for dismissal of the case.
Complainant has annexed with the complaint petition, copy of agreement for sale dated 23/8/2001, copy of agreement dated 29/9/2002, copy of Death Certificate relating to the death of Amar Krishna Bhattacharjee i.e. predecessor in interest of Opposite Party No.2 to 4 and the notice sent by the Complainant on 22/3/2018 through his Ld. Advocate to the Opposite Parties.
During the course of evidence parties filed their respective evidence followed by filing of questionnaire and reply thereto and ultimately written notes of argument are also filed.
So, the following points require determination:
- Whether there has been any deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
In support of his claim, Complainant has filed the copy of the agreement dated 23/8/2001 wherefrom it appears that Opposite Party No.1 and the predecessor in interest of Opposite Party No.2 to 4 entered into an agreement to develop the property described in the schedule of the said agreement. He has also filed the copy of the agreement for sale dated 29/9/2002 entered with him by the Opposite Party/developer which also bears the signature of Amar Krishana Bhattacharjee, the predecessor in interest of Opposite Party No.2 to 4, in the last page. It appears from the said agreement that the Opposite Party agreed to sale godown and the car parking space described in the Schedule ‘B’ of the agreement at a consideration of Rs.1,40,000/- out of which Rs.50,000/- has been paid on the said date of agreement to the Opposite Party/developer.
So far as execution of the development agreement, Opposite Party No.2 to 4 have not denied and disputed. Apparently Opposite Party No.1 being the developer was authorised to transfer his portion of allocation. Agreement for sale in favour of the Complainant has not been denied by Opposite Party No.1/developer. He has also admitted payment of Rs.50,000/- by the Complainant and that the possession has also been delivered to the Complainant. Even though Opposite Party No.2 to 4 have challenged the signature of Amar Krishana Bhattacharjee appearing in the said agreement for sale but they have taken no step to send the same for its examination by an expert. In the absence of any document, bare assertion that the signature appearing in the last page of the agreement for sale dated 29/9/2002 is not of Amar Krishna Bhattacharjee, will have no substance especially when Opposite Party No.1/developer has categorically admitted execution of the same and receiving of consideration price of Rs.50,000/-. So as admittedly the Deed of Conveyance has not been executed in favour of the Complainant in respect of the said schedule property as per agreement dated 23/8/2001, Complainant is entitled to the same on payment of balance consideration price of Rs.90,000/- to the Opposite Party/developer. However, we find no justification to allow the compensation as the Complainant has been enjoying the possession without paying the major amount of Rs.90,000/-.
Hence,
ORDERED
CC/222/2018 is allowed on contest. Opposite Parties are directed to execute and register the Deed of Conveyance in respect of the schedule property as per agreement dated 29/9/2002 in favour of the Complainant within 3(Three) months from this date, on payment of balance consideration amount of Rs.90,000/- by the Complainant to the developer/Opposite Party No.1. Opposite Parties are further directed to pay litigation cost of Rs.12,000/- to the Complainant within the aforesaid period of 3(Three) months.
