J U D G E M E N T
Claiming himself as a consumer, under the C. P. Act, 1986, the Complainants has sought for interference of this Forum in respect of fact complained of.
In succinct, the case stated in the complaint, is that, the Complainant No. 2 had entered into two ‘Agreement for Sale’ on 06.07.2004 with the Opposite Party No. 8 for purchasing two self contained residential flats, one is on 1st floor and another is on Ground floor in the proposed building,
described in the ‘B’ in the complaint and the Complainant No. 1 had also had entered into two ‘Agreement for Sale’ on 08.07.2004 for purchasing two garages and on 07.05.2005 for purchasing one garage, with the Opposite Party No. 8, on Ground floor in the said building, described in the ‘C’ in the complaint. Accordingly the Complainants had paid the entire consideration amount to the Developer Opposite Party No. 8, and the Opposite Party No. 8 had handed over the actual possession of the said flats and garages to the Complainants on 07.05.2005 along with the ‘Possession Letter’ in favour of the Complainants but had failed to execute and register the said flat in favour of the Complainants in spite of repeated requests and demand instead of entire payment of consideration amount.
Subsequently, the original Owner had died and the Opposite Party No. 1 to 7 are became the Owners as the legal heir of the Original Owner and automatically the Power of Attorney executed by the original Owner being ceased in favour of the Developer Opposite Party No. 8. The Complainants repeatedly requested the all Opposite Parties the Owners and the Developers to execute and register the proper ‘Sale Deed’ in respect of the said flats and garages in favour of the Complainants, but the Opposite Parties were reluctant to do the same. After waiting a long period the Complainants sent legal notice to the Opposite Parties on 18.08.2014 for execution and registration of the ‘Sale Deed; but of no result, what amounts to deficiency and/or negligence in rendering service towards him, for which he has to suffer harassment and mental agony and prayed for compensation. Hence, this case is filed seeking adequate redressal.
Resisting the complaint, all the Opposite Party by filing separate Written Versions one by the Opposite Party No. 1 to 4 & 6 & 8(b) & 8(c)
and another by the Opposite Party No. 8(a) denying all the contentions and all material allegations made by the Complainants in the petition of complaint and stating inter alia, that the Complainants has no locus standai, and the case is not maintainable either in law or in fact.
The specific case, as stated by the Opposite Party No. 1 to 4 & 6 & 8(b) & 8(c), in terse, is that the Opposite Party No. 8(b) & 8(c) were the partners of a Development Partnership Firm for doing the construction works. The Complainants had agreed to purchase two flats and three garages and had paid the entire consideration money to the Developers and accordingly the Developers had handed over the possession of the said flats and the garages to the Complainants, but the Complainants never stated the sufficient explanation for withholding the execution and registration of the said ‘Sale Deed’ within the span of long 10 years.
Originally the fact is that both the Complainants were absconded for a considerable period since 2008 for involvement in criminal cases which is still pending before the ACJM Court, Serampore. The Opposite Party No. 8 had tried their level best to contact with the Complainants and had send letter on 24.07.2007 and so many other letters requesting for doing the execution and registration of the ‘Sale Deed’ in respect of the ‘B’ and ‘C’ Schedule property which was received by the Complainants but the Complainants did not bother to do the same.
Moreover, the payment of Rs. 1,45,000/- only for doing some extra works was still due towards the Opposite Party No. 8 on part of the Complainants which was within the knowledge of the Complainants. Thus the Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) denied any deficiency and negligence against the Complainants and prayed for dismissal of the case against them.
The case, as a whole, as stated by the Opposite Party No. 8(a), in crisp, is that, the entire version and/or statement of the Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) are as same as the version and/or statement of this Opposite Party No. 8(a). Moreover, this Opposite Party No. 8(a) specifically stated that he had retired from the said Partnership Development Construction Firm w.e.f. 17.01.2007 with full satisfaction of his liabilities. Presently the existence of the said Partnership Development Construction Firm has no more. But still the Opposite Party No. 8(a) is willing to render the all possible assistance / co-operation to the other Opposite Party No. 8(b) & 8(c) in executing and registering the ‘sale Deed’ in respect of the said flats and garages to the Complainants.
Despite proper service of the notice to the Opposite Party No. 5, the concerned Opposite Party No. 5 never appeared before the Forum to contest the case nor had he filed any ‘Written Version’ on his behalf or through any Ld. Advocate/Representative. Thus the Opposite Party No. 5 has relinquished his scope to refute the case. So, the instant case has been heard ex-parte against the Opposite Party No. 5.
Point for Consideration
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence and/or deficiency in service
on the part of the O.P ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainants and also the Ld. Advocates for the Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) and the Ld. Advocate of the Opposite Parties No. 8(a) also critically perused all the material documents on record.
The dispute between the both Complainants and the Opposite Parties is that whether the Complainants are entitled to get the said flats and garages executed and registered by the Opposite Parties and also entitled to get the other reliefs as prayed for or not.
On overall evaluation of the argument made before us by the Ld. Advocate for the Complainants and also the Ld. Advocates for the Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) and the Ld. Advocate of the Opposite Parties No. 8(a) and the material evidences on record, it is evident that admittedly the Complainants entered into two ‘Agreement for Sale’ on 06.07.2004 with the Opposite Parties No. 8 for purchasing two self contained residential flats, one is on 1st floor and another is on Ground floor in the proposed building, described in the ‘B’ in the complaint and the Complainant No. 1 had also had entered into two ‘Agreement for Sale’ on 08.07.2004 for purchasing two garages and on 07.05.2005 for purchasing one garage, with the Opposite Party No. 8, on Ground floor in the said building, described in the ‘C’ in the complaint.
The record reveals that the Developer Opposite Parties No. 8 had admitted that the Complainants had paid the entire consideration amount to the Developer Opposite Party No. 8, and accordingly the Opposite Party No. 8 had handed over the actual possession of the said flats and garages to the Complainants on 07.05.2005 along with the ‘Possession Letter’ in favour of the Complainants, which was also never dined rather admitted by the Complainants.
Manifestly, it is revealed from the Written Versions filed by the contesting Opposite Parties that on demise of the original Owner, the Power of Attorney was automatically ceased to be act by the Developers of behalf of the present Owners who became the Owners as the legal heir of the original Owner. But the fact remains that at the time of the executing the said ‘Agreement for Sale’ by the Developer Opposite Party No. 8 the said Power of Attorney was in existence and thus the Developer Opposite Parties singed in the same as Developers and also as the constituent attorney of the deceased Original Owner but after demise of the Original Owner the present Opposite Party No. 1 to 7 became the Owners but did not execute the fresh Power of Attorney in favour of the Developers. Moreover, the Opposite Party No. 8(a) the one of the partner of the said Partnership Development Firm was retired from the said Firm and subsequently the said Firm was actually dissolved and has no existence in present.
But when the Complainants had complied with the terms and conditions of the said ‘Agreement for Sale’ by paying the entire consideration money to the Developers and the Power of Attorney was revoked the present Owners Opposite Party No. 1 to 7 are still liable to execute and register the ‘Sale Deed’ in respect of the said flats and garages in favour of the Complainants.
Furthermore, the Developers Opposite Party No. 8(a) and 8(b) & 8(c) claimed to do some extra works in the said flats of the Complainants which amounts to Rs. 1,45,000/- only which is confirmed by a ‘Declaration’ duly signed by the Complainant No. 2 and the photocopy of the said ‘Declaration’ was filed by the Opposite Party No. 8(b) & 8(c). Thus it is proved that the Developers Opposite Parties had actually done some extra works in the said flats of the Complainants which is within the knowledge of the Complainants. So the Developers Opposite Parties is entitled to get the said amount regarding the extra works done as alleged by them and the Complainants are still liable to pay the same.
Manifestly, the photocopies of the documents filed by the contesting Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) reveal that the Developers Opposite Parties had sent so many letters and legal notice also on different dates to the Complainants asking them to get the flats and garages executed and registered within 15 days but the Complainants did not comply with as because the Complainants were absconded due to the criminal cases lodged against them before them which is still pending before the ACJM Court, Serampore. But though the pending of the criminal case is not the bar to the Consumer Forum we did not consider the same. So, it is crystal clear from such documents that the Developer Opposite Parties as well as the Owners Opposite Parties are not at all liable for not executing and registering the said ‘Sale Deed’ in favour of the Complainants for which no compensation is awarded against any Opposite Parties as no Opposite Parties had done any deficiency and/or negligence to comply the obligations on their part rather the Opposite Parties are ready and willing to do the same.
Thus, the unanimous decision of the Forum is that the Complainants shall have to pay a sum of Rs. 1,45,000/- only for extra works to the Developer Opposite Parties which is still pending and the Opposite Parties are liable to execute and register the ‘Deed of Conveyance’ in respect of the said flats and garages in favour of the Complainants on the same day. In default the Complainants are to deposit the said amount to the head of the ‘President’ of the DCDRF, Hoogly at Chinsurah and also with the liberty to do the same through the Forum.
Therefore, in light of the above analysis, we are of the opinion that the Complainants have proved their case and are entitled to get the relief as prayed for and consequently the points for consideration are decided in affirmative.
In short, the Complainants deserve success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Parties No. 1 to 4 & 6 & 8(b) & 8(c) and the Opposite Party No. 8(a) and allowed exparte against the Opposite Parties No. 5 but without any cost.
That the Complainant is directed to pay a sum of Rs. 1,45,000/- only to the Developer Opposite Party No. 8(a) and the Opposite Party No. 8(b) & 8(c) at the time of executing and registering the said ‘Sale Deed’ by the Opposite Parties.
In default the Complainants are to deposit the said amount to the head of the ‘President’ of the DCDRF, Hoogly at Chinsurah and also with the liberty to do the same through the Forum.
That all the Owners Opposite Parties No. 1 to 7 and the Developers Opposite Parties No. 8(a) and Opposite Party No. 8(b) & 8(c) are directed to execute and register the Deed of Conveyance in respect of the said flat in favour of the Complainant within one month from the date of this ‘Order’.
That in default, the Complainant has liberty to execute and register the same through the Consumer Forum and in this situation the Complainants shall have to deposit the said amount of Rs. 1,45,000/- only to the head of the ‘President’ at DCDRF, at Dist. Hoogly at Chinsurah.
In the event of non compliance of any portion of the order by any Opposite Parties within a period of one month from the date of this ‘Order’, that defaulting Opposite Party shall have to pay a sum of Rs. 200/- per day, from the date of this ‘Order’ till full satisfaction of the decree, and out of such amount 50% shall be paid to the Complainants and rest 50% shall be deposited by the Opposite Party/s to the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
