FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN, MEMBER.
This is an application U/S.35 of the C.P. Act, 2019.
The case of the complainant in brief is that the complainant desirous to purchase a new flat for residential purpose for himself and his family. Accordingly, he approached the OP1 and OP 2 who are developers/promoters. OPs 3 to 11 are the land owners of the land measuring about 2 cottahs 14 chittaks,25 sq.ft together with old structure bring KMC premises No.36B,Hem Chandra Street Po-Khidderpore,P.S- Watgungue,Kolkata 700023.Assesse No.110760600738,Ward No.076 by a register Deed of gift registered at the office of the District Sub-Registrar at Alipore executed on 07.04.1982 and copied in Book No.1 ,Volume No.119 pages 202 to 211,being No.4393 for the 1982 and by way of inheritance for the purpose of development the opposite party No.1 as developer and the said Development Agreement dated 25.06.2008 was duly executed between the predecessor of the present owners and some of the present owners as land owners and M/S Tara construction,OP No.2 represented by its proprietor Sri Suresh Kumar OP1 as Developer and also a Power of Attorney dated 21.01.2010 was registered at the office of ADSR,Alipore.. The Tripartite Agreement for sale was executed on 16.12.2011 between Sri Sunil Kumar Adhikary & Others and OP1 and OP2 herein Sri Suresh Kumar proprietor of M/S Tara Construction and the Complainant as purchaser. The agreement for sale for purchase of flat on the 2nd Floor measuring 620 Sq.ft super built up area together with proportionate share of the land measuring 2 cottahs 14 chittaks,25 Sq.ft together with old structure bring KMC premises No.36B,Hem Chandra Street Po-Khidderpore,P.S- Watgungue,Kolkata 700023.Assesse No.110760600738,Ward No.076. The consideration money of the flat was determined as Rs,9,65,000/(Rupees Nine Lac Sixty Five Thousand)Only along with for extra work with all the OPs as per the Agreement for Sale dated 16.12.2011.
The complainant further stated that in terms of the payment schedule of the Agreement for sale dated 16.12.2011 the complainant paid a sum of Rs,9,65,000/- paid to the OP 1.
The mode of payment and amount-
On 15.03.2009 Cash .Rs,100,000
On 126.03.2009 vide Cheque No.305164 (UCO Bank).Rs,1,40,000
On 10.05.2011 vide Cheque No. 150126 (SBI) Rs,1,00,000
On 09.10.2012 vide KDP Branch. Rs,40,000.
On 08.01.2013 vide Cheque No 150132 ( SBI) Rs,72,000
On 17.07.2014 Cash Rs,40,000
On 14.02.2015 Vide Cheque plus Cash 571829. Rs,50,000
On 23.04.2015 vide Cheque Rs,58,000
On 13.05.2015 vide Cheque Rs,40,000
On 30.06.2015 vide Cheque No 860312 ( SBI) Rs,60,000
On 23.01.2016 Vide Cheque+Cash . Rs70,000
On 01.03.2016 Cash Rs,59,000
On 10.03.2016 vide Cheque Rs,20,000
On 29.03.2016 vide Cheque Rs,50,000
On 05.09.2017 Cash Rs,44,100
On 05.09.2017Cash Rs,9,000
On 06.07.2019 vide Cheque Rs,12,900
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Total 9,65,000/-
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The complainant stated that the building was completed and it was handed over the possession to the complainant vide letter of possession dated 10.12.2016. but the OPs No.1 and 2 did not execute the registered Deed of Conveyance in favour of the complainant.The complainant time and again requested the OPs to execute the registered Deed of Conveyance but they did not pay heed and they bypassed the request on several occasionsThe complainant sent legal notices through their Ld Advocate Sri Sudhir Kumar Banerjee on 03.05.2021 by speed post to the OPs at the address and out of which opposite parties no.5,6, and 7 envelop has been returned as un served..Finding no other option for adequate remedy,the complainant approached the Ld. Commission seeking justice against the negligence and unfair trade practice by the OPs.The complainant further submits that the Ld.commission has jurisdiction to entertain the petition and pass the order or orders directing the OPs to execute the registered Deed of Conveyance in his favour of the complainant in along with completion certificate and also compensation of Rs,2,00,000/- for unfair trade practice and gross negligence, mental agony Rs,2,00,000/ and for harassment Rs,2,00,000/- and Rs 30,000/-as litigation cost. The Cause of action of this complaint arose on 16.12.2011 and thereafter on 03.05.2021 and the same is continuing day by day.
The OPs have not entered appearance .No WV has been filed by the OPs.It also appears that the stipulated period for filling WV by the OPs has already been elapsed and as such the case do proceed Ex-parte against the OPs
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion
We have travelled over the documents placed on record. The complainant has filed his Evidence supported by affidavit. The case has been proceeded ex parte against OPs . The OPs have not filed the E-Chief and not submitted their BNAs also. The complainant has filed his BNA.
The fact of the case in brief is that the complainant has entered an Agreement for Sale on 16.12.2011 with the OP 1,OP 2 and Mr.Sunil Kumar Adhikary and Ors. to purchase a flat for residential purpose for his family measuring 620 sq.ft. super built up area on the 2nd floor of the building on a total consideration of Rs,9,65,000/ (Rupees Nine Lac Sixty Five thousand ) only .The complainant had paid the total consideration amount of Rs 9,65,000/-.The possession of the flat was handed over in 2016 but the Deed of Conveyance was never executed in favour of the complainant till now by the OP 1 and 2.The complainant requested several times both orally and through letter but failed. This shows negligence and unfair trade practice on the part of the OPs. Deficiency in service on the part of the OPs are proved and the complainant is entitled to get relief/reliefs. In view of the above facts it is observed by us that,it is unfortunate that OPs have miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the negligence on the
part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service is observed.
In view of the above facts and circumstances we are of the view that the complainant has established his case against the OPs.
Hence, Ordered
That the complaint case be and the same is allowed on ex-parte against OPs by following directions.
- The OP1 and OP2 are directed to execute the registered “Deed of Conveyance “as per the agreement and schedule in favour of the complainant.
- The OP1and OP 2 are directed jointly and severally to pay Rs,20,000/ ( Twenty thousand) as compensation for unfair trade practice, harassment and mental agony.
3 .OPs are further directed jointly or severally to pay Rs 10,000 ( Rupees Ten thousand) as litigation cost.
The above mentioned orders are to be complied by the OPs within a period of 60 days in default the complainant will be at liberty to put the order into execution as per rules.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and
Judgment be uploaded in the website of the Commission for perusal of the parties
