Complainant Ashoke Kr. Bera by filing a petition of complaint u/s 12 of the C.P. Act, 1986 on 23.11.07 has prayed for passing an order directing the o.p. to hand over the possession of the flat after completing the same in all respects and also to execute and register the deed of conveyance in the name of the complainant as fully described in the schedule ‘C’ of the agreement dt.24.9.1995 or alternatively issuance of a direction upon the o.p. to refund the entire consideration money paid by the complainant in respect of the flat in question with appropriate interest and to pay compensation of Rs.50,000/- for his mental agony, harassment etc. and litigation cost of Rs.5000/- and other relief or reliefs as the complainant is entitled. Fact of the case in short is that having learnt about the project of the o.p., the complainant intended to purchase a flat from the o.p. who offered him to sale a flat in the proposed project to be constructed at Mouza : Atghara, Dag no.95, Khatian no.76, JL no.5, Police Station and Sub Registered Office : Sonarpure, South 24 Parganas and paid Rs.1,06,510/- out of total consideration money of Rs.1,40,000/- on 24.9.1995. And in terms of the agreement rest of the amount would have to be paid in instalments and the possession of the flat in question would be handed over within 72 months from the date of booking. But even in spite of such agreement and payment of Rs.1,06,510/- out of total consideration money of Rs.1,40,000/- the o.p. did not complete the flat and neglected to perform his duties and obligation as stipulated in the agreement vide annex-C. The complainant made several representations against such act of the o.p. but he did not perform his obligation and finding no other alternative the complainant sent lawyer’s notice on 16.6.07 to the o.p. demanding to execute the deed of conveyance in respect of the flat in question in favour of the complainant within thirty days from the receipt of the notice. But even in spite of it the o.p. has not complied with his duties and his act amounts to deficiently of service and unfair trade practice and so the complainant has filed this case against the o.p. Decision with reasons : It appears on perusal of the record vide order no.5 dt.8.4.08 that notice was duly served upon the o.p. which appears from the a/d card and 13.5.08 was fixed for appearance of the o.p. and filing of w/v. But on 13.5.08 none appeared on behalf of o.p. nor any w/v was filed and accordingly 15.7.08 was fixed for ex parte hearing and subsequently also none appeared on behalf of o.p. On 11.2.09 complainant filed his affidavit of examination-in-chief and on 24.3.09 he filed his BNA for ex parte hearing. We have perused the lawyer’s notice, annex-A and the contents of the same are in tune with the petition of complaint except the fact that according to the petition of complaint vide paragraph 6 the complainant paid Rs.1,06,510/-, but in the lawyer’s notice annex-A, it is stated that the complainant paid Rs.1,02,100/-. It is also mentioned in annex-A agreement for sale vide page no.2 paragraph 2nd that “the total consideration money of Rs.1,35,000 + Rs.5000 (development cost) and the vendor has agreed to sale the said flat to the purchaser as the said consideration money. It is also mentioned in (b) that “the possession of the flat and the registration thereof along with proportionate interest in land will be handed over after 72 months from the date of booking”. The flat in question has been described in schedule ‘C’ of the agreement vide page 3. Annex-C is the Xerox copy of the facet of the building appertaining to 23/54, Gariahat Road, P.S. Gariahat, Kolkata-29. Annex-D is the statement of account showing payment by the complainant to the o.p. on different dates and the total amount of payment is Rs.106510/-. So evidently out of total consideration of money of Rs.1,40,000/- the complainant has paid Rs.1,06,510/-. But it is not understood that why in annex-A lawyer’s notice it has been stated that the complainant has paid sum of Rs.1,02,100/-. In view of this position contradiction we like to accept the actual payment on the basis the statement of account vide annex-D. Annex-E is the series of receipts showing payment by the complainant either by cash or mostly in cheques. We have also perused the affidavit of evidence of the complainant wherefrom it appears that out of total consideration of money Rs.1,40,000/- he has paid Rs.1,06,510/- in several instalments. This being the position, we are of the opinion that the complainant has been able to prove his case and his claim to have the possession of the flat in question in his name by getting a registered deed of conveyance by the o.p. is valid and justified. Therefore, considering the facts, circumstances, evidence both oral and documentary, we are of the opinion that the complainant is entitled to get the relief as prayed for.
Hence, Ordered, That the o.p. is directed to hand over the possession of the flat in question specified in schedule ‘C’ of the agreement dt.24.9.1995 in the name of the complainant by way of executing registered deed of conveyance in the name of the complainant positively within thirty days from the date of communication of this order to him on receipt of (Rs.1,40,000 – Rs.1,06,510) = Rs.33,490/- (Rupees thirty three thousand four hundred ninety) only. If the o.p. fails to comply with this direction within the said period of time Rs.50/- (Rupees fifty) only per day will be levied as fined from the date of completion of thirty days as stated above till full compliance of this order. O.p. is also directed to pay compensation of Rs.5000/- (Rupees five thousand) only for the inconvenience and mental agony caused to the complainant and he is also directed to pay litigation cost of Rs.1000/- (Rupees one thousand) only and the said amount must have to be paid within thirty days from the date of communication of this order, failing which the complainant will be at liberty to realize the same by due process of law. Fees paid are correct.
Supply copy of this order to the parties on payment of prescribed fees. |
