For the Complainants                     -  In person

For the OPs                                       - Tahira Khatoon, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT    

This is an application u/s.12 of the C.P. Act, 1986.

 The brief facts relevant for disposal of the present consumer complaint are that the complainants had entered into an Agreement for Sale dated 30.11.2012 with the OP-1 Tapas Kumar Bhagat, Proprietor of “Srishti” for purchasing a flat measuring about  668 sq. ft.  super built up area on the 1^st floor  of Premises 18, No. 5, Mahajati Nagar, Agarpara together with undivided proportionate share of land  for a consideration of Rs. 12,52,500/-. Complainants paid Rs. 12,69,200/- to the OP-1 on different dates  through  cheque and they are put in possession on the subject flat. OP-1 requested the complainants to pay registration cost for Deed of Conveyance  as registration  will be held on 01.09.2014. Complainants paid registration cost of Rs. 1,35,000/- to the OP-1 on 14.01.2015 vide cheque Nos. 08000 & 98002. Despite of receipt of registration cost, OP-1 failed and neglected to execute and register Deed of Conveyance  in favour of the complainants. Thereafter, the complainants insisting for execution and registration of the Deed of Conveyance in respect of the subject flat along with undivided proportionate  share of land but the OP-1 did not comply with the said request. By a letter dated 21.04.2017 the complainants  call upon the OP-1 to register  the Deed of Conveyance  as quickly as possible but such request was unattended. The OPs are obliged to execute the Deed of Conveyance of the subject flat in their favour but refusal to execute and register such Deed on the part of the OP-1 is clear deficiency  in service as per Agreement  for Sale. Thus, the complainants filed the instant consumer case praying for certain reliefs like execution and registration of the Deed of Conveyance,  compensation and litigation cost.

OPs 1 to 6 have contested the case by filing a joint W.V. challenging the maintainability of the consumer case on the ground of limitation. The answering OPs denied that the complainants had paid Rs. 1,35,000/-  as registration cost of the Deed of Conveyance. The OP-1 is ready and willing to execute and register Deed of Conveyance of the flat subject to its physical measurement. There is no deficiency in service and/or unfair trade practice on the part of the OPs. Thus, the answering OPs have prayed for dismissal of the complaint.

Despite of service of notice the OPs 7 & 8 did not turn up to contest the case. As such, the case has proceeded ex parte against the OPs 7 & 8.

In the light of the pleadings of the parties the following points are came up for determination.

            1) Whether the consumer complaint is hit under section 24A of the CP Act, 1986?

            2) Whether any Agreement for Sale dated 30.11.2012 was executed between the complainants and OP-1 in respect of the subject flat?

            3) Whether the OPs are deficient in rendering services to the complainants?

4) Whether the OPs have indulged in unfair trade practice?

5) Whether the complainants are entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point No. 1

            It is undisputed that the complainants and OP-1 entered into an Agreement for Sale for purchase of the subject flat, Complainants paid full consideration, they are put in possession and continued to process the same for more than 03 years with a request to OP-1 to execute and register Deed of Conveyance in their favour, their right cannot be denied simply because they got faith in the words of the OP-1/Developer for getting the deed executed in their favour in future.

The Hon’ble NCDRC in Bhagyalaxmi Construction vs. Monoranjan Basak & Anr.  Reported in III (2013) CPJ 75 (NC) where it was held that cause of action continued to exist ………….where conveyance was not executed in favour of the complainants. Identical view was expressed by Hon’ble Calcutta High Court in Srabani Mascharak Choudhury vs.  Deyb & Dutta Enterprise & Ors (decided on 23.11.2011) in C.S. 58 of 2010.

Therefore, it is crystal clear that the cause of action will continue until the Deed of Conveyance is registered. Thus, we firmly held that the consumer case is maintainable and not hit u/section 24A of the CP Act, 1986. Thus, Point No. 1 answered in the affirmative.

Point Nos. 2 to 5

All the points are taken up together for brevity in discussion.

To prove their case both parties have adduced evidence on affidavit. They have also filed questionnaire and replied vis-à-vis relevant documents in support of their respective cases. We have also examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

Fact remains that the complainants booked Flat No. 1A situated on the 1^st floor measuring  about 668 sq. ft. super built up area  with undivided  proportionate share of land of Premises 18, No. 5, Mahajati Nagar, Agarpara by paying a sum of Rs.1,00,000/- on 27.11.2012 and also paid total sale price of Rs. 12,69,200/- on different dates. OP-1/Developer entered into an Agreement for Sale and received full amount of the sale consideration and agreed to execute the registered Deed of Conveyance within the stipulated period by delivering the possession to the complainants. True that the complainants are put in possession of the subject flat but the OP-1 failed to execute and register Deed of Conveyance in spite of  receiving  Rs. 1,35,000/- as registration cost.

The plea of the answering OPs is that they are ready and willing to execute  and register Deed of Conveyance of the flat subject to its physical measurement. Complainants did not allow to measure the subject flat. There is no deficiency  in service and/or unfair trade practice on the part of the OPs.

It would be relevant here to state that on the prayer of the OPs, Mr. Samir Banik LBS of Kamarhati Municipality was appointed as Engineer Commissioner to measure the subject  flat physically. In pursuance of the Writ, Engineer  Commissioner physically measured the subject flat in presence of both parties and submitted  his report. We evaluated the report dated 07.05.2019 and find  that the physical measurement of the subject flat is 625 sq. ft. super built up area. Thus, it is clearly established that the measurement of the subject flat is less than the super built up area mentioned in the 2^nd schedule of the Agreement for Sale dated 30.11.2012.

The OP-1 being the Developer has received the entire sale consideration amount but failed to execute the Deed of Conveyance  as per terms and conditions of the agreement. Therefore, in our opinion, the delay in executing  the registered Deed of Conveyance in favour of the complainants amounts to deficiency of service and  the OPs have not keep up their promise and  failed to abide  by the conditions. Therefore,  we hold that there is deficiency  of service on the part of the OPs. OP-1 is the Power of Attorney Holder of OPs 2 to 8. Therefore, OP-1 done the works on behalf of OPs 2 to 8 and the complaint filed against all the OPs are maintainable.

It is true that complainant-2 Pramit Kumar Thakur received a letter from OP-1. Upon  perusing the said letter, it appears that OP-1 informed  the complainant-2 that flat registration will be held on 01.09.2014 and requesting  to pay due earnest money with registration fees with in 1^st week of September, 2014. In pursuance of the said letter, complainant-2 issued two cheques bearing No. 198000 & 198002 both dated 14.01.2015 for Rs. 70,000/- and Rs. 65,000/- to the OP-1 as registration cost. Both the cheques were encashed on 15.01.2015 and 27.03.2015 as it appears from the photocopy of the bank statement (S.B. Account No. 10528149266) of State Bank of India Khagra Branch. Thus, it is well established that the complainants paid Rs. 1,35,000/- as registration cost of the subject flat in pursuance of the letter of OP-1. In spite of payment of registration cost, the OP-1 did not execute and register Deed of Conveyance  in favour of the complainants which tantamount to unfair trade practice.

For the reasons stated hereinabove, we hold that the complainants are entitled to get relief as prayed for. Thus, all the points under determination answered in the affirmative.

In the result, the case succeeds.

Hence,

Ordered

That the complaint case be and the same is allowed on contest against the OPs 1 to 6 and also allowed ex parte against  the OPs 7 & 8.

OP-1 is directed to execute and register Deed of Conveyance of the subject flat in favour of the complainants  within 45 days from the date of order. We make it clear that the cost of such registration shall be borne by the OP-1. In default, the complainants are at liberty to take recourse of the machinery of the Forum for execution and registration of the Deed of Conveyance.

Failure to execute the registered Deed of Conveyance, OP-1 shall refund Rs. 1,35,000/- with interest  at the rate of10  percent per annum from the date of payment  of registration cost till realization to the complainants.

OP-1 is also directed to pay compensation of Rs. 25,000/-and litigation cost of Rs. 5,000/- to the complainants within the stipulated period.

Liberty be given to the complainants to put the order in execution, if the OP-1  transgresses to comply the order.