Order-8.

Date-09/12/2016.

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

Complainants’ case in short is that OP No. 1 is the Developer and OP No. 2,3,4,5 & 6 are the landlords. OP Nos. 4 and 5  and the predecessor in interest of the OP No. 2,3 and 6 entered into an agreement for development  in respect of   premises no. 10C, Atal Sur Road, P.S . Tangra, Kolkata  700 015 on 22.10.2013 with OP No.1. In fact, Madan Chandra Sadhu Khan  being the predecessor in interest of OP No. 2,3 and 6 and Biswanath Sadhu Khan (OP No. 4), Sadan Chandra Sadhu Khan (OP No. 5) also executed a general power of attorney  on 22.10.2013 in favour of the Developer for sanctioning of Building plan, construction etc. etc. The Complainants entered into an  agreement for sale with the OPs for purchase of a flat as described in schedule ‘B’ at Rs.5,90,780/-. The Complainants paid Rs.5,60,461/- in compliance with the aforesaid agreement out of Rs.5,90,780/-. Developer also handed over the possession of the subject flat to the Complainants on 06.04.2007. But it is alleged that the drainage system has not been completed and no completion certificate of the project has also been obtained from the building department of KMC by the Developer and the owners. The Complainants requested the OPs time and again to complete the pending work but the same was not completed. The Complainants also issued a legal notice to the OPs, but to no good.  Hence this case,

None came from the side of the OPs to contest the case. Neither of the OPs filed any w.v. nor contested the case. The case has proceeded ex parte against the OP.   

Point for Decision

1)       Whether the OPs are deficient in rendering service to the Complainants?

2)       Whether the Complainants are entitled to get relief as prayed for?

Decision with Reasons

          Perused the documents on record i.e.  photocopy of the agreement dated 22.10.2013, photocopy of agreement for sale dated 17.10.2004 in between the Complainants and the OPs, photocopy of pass book showing payment and other documents on record.

          It appears that Madan Chandra Sadhu Khan, Sri Biswanath Sadhu Khan and Mr. Sadan Chandra Sadhu Khan were the joint owners of piece and parcel of the land measuring about 2 cottah 8 chittak at premises No. 10C, Atal Sur Road, Kolkata- 700 015. OP No. 1 is the Developer.Op No. 4 & 5 are Biswanath Sadhu Khan and Sadan Chandra Sadhu Khan. OP No. 2,3 and 4  are legal heirs of  Madan Chandra Sadhu Khan, since deceased. We find that the Complainants entered into an agreement with the OPs on 17.10.2004 for purchase of the subject flat at a total consideration of Rs.5,90,780/- and under the terms and conditions as are embodied in the said agreement it also appears that the Complainants had paid off total amount of Rs.5,60,461/- out of total consideration of Rs.5,90,780/- leaving of balance of Rs.30,319/- to be paid at the time of registration of deed of sale./ It is alleged that the OPs have handed over the physical possession of the flat to the Complainants but have not executed  and registered the deed of conveyance in favour of the Complainants. It is also appears that the Complainants have alleged over the matter with the OPs on several occasions. It is also stated that OP No. 1 has not obtained the completion certificate from the KMC. It is also alleged that some construction works have been pending in respect of the subject flat.

          None came from the side of the OPs to challenge or controvert the case of the Complainant.  The evidence of affidavit as filed by the Complainant remains unchallenged and uncontroverted. We find that the OPs have neither executed or registered deed of conveyance in favour of the Complainant nor completed the pending work of the subject flat or obtained certificate from KMC as per terms and conditions as mentioned in agreement dated 17.10.20004. We think that it amounts to deficiency of services. The Complainants as such are entitled to get the relief as prayed for.

In result, the case succeeds.

Hence,

Ordered

That the instant case be and the same is allowed ex parte but on merit against OPs.

OP No. 1 is directed to complete the pending jobs of the said flat in terms of the agreement dated 17.10.2004 and execute and cause registration of the deed of conveyance along with other ops in respect of the said flat receiving the balance amount of Rs.30,319/- and also handover the completion certificate after obtaining it from the concerned department of Kolkata Municipal Corporation within 45 days from the date of this order.    

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP-1 shall be liable to pay penal damage  at the rate of Rs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.