Sri Ashoke Kumar Pal, President

The matrix of the instant complaint case in a nutshell is that the complainants booked a self contained residential flat being Flat No. 3C in the 3^rd Floor (South-West side) morefully described in the schedule of the petition of complaint as well as agreement for sale dated 09.02.2007 at a total consideration of  Rs. 2,20,000/-(Rupees two lakh twenty thousand) only and the agreement for sale dated 09.02.2007 was made by and between the parties. The O.Ps. delivered the actual physical possession of the flat measuring about 340.727 sq.ft. instead of 400 sq.ft. The complainants paid Rs. 1,87,400/-(Rupees one lakh eighty seven thousand four hundred) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts (Annexure – C series). The possession of the scheduled flat was delivered to the complainants on 14.12.2008 and a possession letter was given to that effect (Annexure – D). Thereafter, the original land owners O.P. Nos. 3 and 4 died. O.P. No. 3 died intestate leaving behind his wife Chabi Basu who is added as O.P. No. 3(a) and the O.P. No. 4 died leaving behind his wife, son and daughter who are impleaded as O.P. Nos. 4, 5 and 6. The complainants requested the O.Ps. several times and lastly on 16.06.2021 for execution and registration of a proper deed of sale in respect of the scheduled flat in favour of the complainants. But the O.Ps. did not pay any heed to the request of the complainants. The O.Ps. have failed to execute and register a proper deed of conveyance in respect of the scheduled flat as per terms and conditions of the agreement for sale dated 09.02.2007 and also did not handover the CC of the scheduled flat which amounts to deficiency in service on the part of the O.Ps. which prompted the complainants to file the instant complaint case on the reliefs sought for in the petition of complaint.

The O.P. Nos. 1, 2, 3, 4, 5 and 6 contested the case by filing two separate W.V. contending inter-alia that the claims of the complainants are all false. The specific case of the O.Ps. is that Aloke Kumar Basu and Nishit Kumar Basu during their lifetime filed a Suit against Tapash Ghosh (O.P. No. 1), Jayanta Ghosh (O.P. No. 2) and others vide T.S. No. 3472 of 2008 before the 6^th Civil Judge (Junior Division) at Alipore with a prayer for decree of declaration that the O.P. Nos. 3, 4, 5 and 6 are the owners of the property and also for a declaration that the power of attorney dated 07.09.2005 executed in pursuance of the development agreement dated 28.05.2005 in favour of Tapash Ghosh (O.P. No. 1) and Jayanta Ghosh (O.P. No. 2) are void and non-est. The said Suit was decreed in favour of Aloke Kumar Basu and Nishit Kumar Basu whereby agreement dated 28.05.2005 and the related power of attorney dated 01.09.2005 was revoked and cancelled. In this connection copy of Judgement passed by the Ld. Civil Judge (Junior Division), 6^th Court, Alipore, South 24 Parganas in T.S. No. 3472 / 2008 has been filed. As the O.P. Nos. 1 and 2 are now not the developers, there is no scope for involving the O.P. Nos. 3, 4, 5 and 6 in the dispute between the parties and the O.P. Nos. 1 and 2. It was further contended that if the Commission adjudicates that the complainants are entitled to get any compensation and the O.P. Nos. 1 and 2 shall be liable and the O.P. Nos. 3, 4, 5 and 6 have no connection in the subject matter in this case. The O.Ps. also denied the other material averments of the petition of complaint para wise and prayed for dismissal of the case against the O.Ps.      

                                                   Points for Decision :-

1. Are the complainants, consumers?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice?
3. Are the complainants entitled to get relief as prayed for?

            Decision with Reasons :-

Point No.1:

On perusal of the case record along with copies of documents, it appears that the complainants were willing to purchase the scheduled flat and the O.Ps. agreed to sell the same to the complainants and for which the agreement for sale dated 09.02.2007 has been executed by and between the parties. The complainants also paid Rs. 1,87,400/- (Rupees one lakh eighty seven thousand four hundred) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts (Annexure – C).  Therefore, the complainants are consumers as defined U/S 2(7) of the Consumer Protection Act, 2019. 

As such, Point No. 1 is decided in favour of the complainants and against the O.Ps.

Point No. 2: 

The complainants booked the scheduled flat and the agreement for sale dated 09.02.2007 has been executed by and between the parties. The complainants also paid Rs. 1,87,400/- (Rupees one lakh eighty seven thousand four hundred) only to the O.Ps. on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts from which it appears that the payment has been properly made. It further appears from the agreement for sale dated 09.02.2007 that O.P. Nos. 1 and 2 put their respective signatures at the time of the execution of the agreement for sale dated 09.02.2007 with the buyers / complainants. The money receipt also bears signatures of the O.P. Nos. 1 and 2. Now despite repeated requests by the complainants, the O.Ps. failed to execute and register a proper deed of conveyance and to handover CC of the scheduled flat in favour of the complainants. Therefore, it is clear from the averments of the complainants that the O.P. Nos. 1 and 2 are guilty of deficiency in service and unfair trade practice. As per Judgement passed in T.S. No. 3472/2008 by the Ld. Civil Judge (Junior Division), 6^th Court, Alipore, South 24 Parganas, the O.P. Nos. 3, 4, 5 and 6 are not concerned in this case.  

As such, Point No. 2 is also decided in favour of the complainants and against the O.P. Nos. 1 & 2.

Point No. 3:

The complainants booked the scheduled flat by executing an agreement for sale dated 09.02.2007 with the O.P. Nos. 1 and 2 and paid Rs. 1,87,400/- (Rupees one lakh eighty seven thousand four hundred) only on different dates. But the O.P. Nos. 1 and 2 violated the terms and conditions and did not execute and register a proper deed of conveyance and did not hand over the CC to the complainants in respect of the scheduled flat. The complainants failed to get any service from the O.P. Nos. 1 and 2. On the other hand, the complainants were harassed by the O.Ps. by various ways.  Therefore, the complainants are entitled to get the reliefs as prayed for. As per Judgement passed in T.S. No. 3472/2008 by the Ld. Civil Judge (Junior Division), 6^th Court, Alipore, South 24 Parganas, the O.P. Nos. 3, 4, 5 and 6 are not concerned in this case.  

Thus, the Point No. 3 is also decided in favour of the complainants and against the O.P. Nos. 1 & 2.

In the result, the complaint case succeeds.

Fees paid is correct.

Hence, it is,

                                              ORDERED

That the instant complaint case be and the same is hereby allowed on contest against the O.P. Nos. 1 & 2 with cost of Rs. 20,000/- (Rupees twenty  thousand) only and dismissed on contest without cost against the O.P. Nos. 3, 4, 5 and 6.

The O.P. Nos. 1 and 2 are jointly and/or severally liable and are directed to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants within 45 days from the date of passing this Order

Alternatively, the O.P. Nos. 1 and 2 are jointly and/or severally liable and are directed to return back the amount of Rs. 1,87,400/- (Rupees one lakh eighty seven thousand four hundred) only to the complainants with simple interest @12% p.a. with effect from 24.01.2007 (date of payment of first installment) till the date of final realization thereof, within 45 days from the date of passing this Order.

That the O.P. Nos. 1 and 2 are jointly and/or severally liable and are also directed to pay compensation to the tune of Rs. 30,000/- (Rupees thirty thousand) only for mental pain and agony,  deficiency in service, unfair trade practice, harassment and inconvenience suffered by the complainants, within 45 days from the date of passing this Order. 

That the O.P. Nos. 1 and 2 are jointly and/or severally liable and are also directed to pay litigation cost of Rs. 20,000/- (Rupees twenty thousand) only within 45 days from the date of passing this Order. 

That the complainants are at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the O.P. Nos. 1 and 2 within 45 days from the date of passing this Order.

Let a copy of the order be supplied free of cost to the parties concerned. 

That the final order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.  

     Ashoke Kumar Pal                   

           President