Order No.11
dt.20.4.2016
This is a complaint made by one Ila Rajwadi and Bani Biswas Rajwadi against Swapan Mondal, Sisir Mondal, both sons of Bejoy Krishna Mondal and Swapan Brahma praying for execution of Deed of Conveyance in favour of the Complainant ; direction upon the OP No.1 & 2 ; issue completion certificate and direction upon OPs to pay jointly and severely litigation cost to the tune of Rs.20,000/- and also pay jointly and severely additional cost of the said flat and finally compensation of Rs.1,00,000/-.
Facts in brief are that Complainant is a senior citizen and suffering from various ailments and undergoing medical treatment. OP No.1 & 2 are promoters and developers and OP No.3 is the owner of the schedule property. In the year 1998 OP No.1 & 2 being the developer entered into a development agreement with one Prafulla Bala Brahma, land-owner and mother of OP No.3. Said Prafulla Bala Brahma executed the power of attorney in favour of OP No.1 & 2. After that an agreement for sale was executed on 31.8.1998 between Complainant along with Binod Rajwadi who was the son of the Complainant No.1, since deceased and the OP No.1 & 2 being the developer and power of attorney holder in respect of self contained flat measuring about 450 sq.ft. super built area on the first floor being the premises No.25E, Bikramgarh Colony, P.S. Jadavpur, Kolkata – 700 032.
As per the agreement for sale Complainant paid total amount of Rs.2,70,000/- on different dates. After the completion of the said premises. OP No.1 & 2 delivered physical possession of the said flat in favour of the Complainants and the Complainant No.1 is residing there, but, the registration has not been done till date. Complainant requested time and again for the said registration but of no use. As the General Power of Attorney got revoked with the death of Prafulla Bala Brahma, Land-owner OP No.3 is a necessary party to this case.
In the meantime Binod Rajwadi died intestate on 11.11.2013, leaving behind the present Complainant as his legal representative. OP No.1 & 2 did not issue Completion Certificate of the said building. Lastly, on 15th August, 2015, Complainant went to the house of OPs and requested to register the Conveyance deed OP No.1 & 2 already received the total consideration money. But, they did not register the Conveyance Deed and so, the complaint was filed by the Complainants.
After filing of this complaint, it was admitted and notices were issued to the OPs, but could not be served. Thereafter, in terms of direction of this Consumer Forum Complainant made paper publication but, despite that OP did not appear and contest this case. So, the case is heard ex-parte.
Decisions with reasons.
Complainant has filed affidavit-in-chief in order to substantiate allegation made in the complaint petition. Complainant has also filed an agreement for sale. Copy of Death Certificates and documents to show that they paid Rs.2,70,000/-.
Main points for determination is whether Complainants are entitled to relief as prayed for.
This case is based on agreement for sale which took place on 31st day of August, 1998. On perusal of this agreement it appears that possession of this flat was handed over to the Complainants as per the agreement and so there is no date mentioned by the Complainants, when they received the possession. They brought this case for registration of the Conveyance Deed and for compensation and litigation cost. It appears that Binod Rajwadi who is No.2 in the second party in the agreement for sale died on 11.11.2013 and so Ila Rajwadi and Bani Biswas Rajwadi claiming themselves as the sole heirs filed this complaint. They have only filed the Xerox copy of Death Certificate of Binod Rajwadi which reveals that on the date of death he was 37 years old. There is no mention in the complaint as to whether Binod Rajwadi was married or not and whether he left any other heir except Complainants.
Furthermore, it appears that Swapan Brahma has been made OP No.3 and on perusal of the agreement it appears that the agreement was entered into between Complainants OP No.1, 2 and one Smt. Prafulla Bala Brahma. Now, Complainants have made party Swapan Brahma as the sole heir of Smt. Prafulla Bala Brahma. But, there is no document filed on behalf of the Complainants that OP No.3 is the sole heir of the lady with which the agreement was signed.
As earlier stated the agreement was signed on 31.8.1998 and thereafter delivery of possession was made. There is no explanation in the complaint as to why after delivery of possession no step was taken by Complainants for getting their Conveyance Deed registered in their favour. In terms of Consumer Protection Act the limitation period is for two years. So, it can be presumed that after taking possession ; Complainant would have got Conveyance Deed registered in their favour within two years. But that was not done and that is why the date of delivery of possession has also not been mentioned.
Surprisingly the date of death of Binod Rajwadi is mentioned i.e. on 11.11.2013. It is not forthcoming whether due to the illness of Binod Rajwadi Complainants were prevented to register in their favour the deed. There is no reason why the date of delivery of possession was not mentioned. It is of common prudence that when a person enteres into a new flat he remembers the date on which he enters. But, here unfortunately, Complainants do not chose to mention it and preferred to use the tactics by which they can get relief on which at least they slept for fourteen years. Such delay in seeking relief cannot and should not be ignored.
It is of course the right of the parties to get that the conscious possession and it must be here and this conscious possession reminds a person for taking legal recourse for making the Conveyance Deed in their favour.
In the present case Complainants did not take any step for fourteen years for getting the Conveyance Deed registered in their favoour. Furthermore, Complainants do not appear to have knocked the door of this Forum with clean hands. Suddenly, by issuing a notice after fourteen years again the right to Complainants to file a complaint and get the relief as prayed for. Here the Complainants cannot bring cause of action have chosen for this scheme which in our view do not appear to be justified and legal and the tactics, perhaps, appear to boomerang them.
In the circumstances, we are of the view that complaint is hopelessly time barred and not filed with a bonafide intention and so relief cannot be granted.
Hence,
O R D E R E D
CC/27/2015 is dismissed ex-parte.
