FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The facts, as stated in the complaint and emerged from the documents attached with it, are that, the Complainant has entered into an Agreement for Sale on 02.01.2006 with the OP1 to purchase a new flat measuring about 560sq.ft super built-up area along with a one front open car parking space measuring about 150 sq.ft at the total cost of Rs.4,60,000/- at 21, Bakhtiyar Shah Road, P.S. – Charu Market, Kolkata - 700033. Subsequently the OP1 handed over the possession of the said flat and front open car parking space to the Complainant on 22.07.2007 and executed a Deed of Conveyance on 12.06.2008. In the year of 2010 due to some personal issues the complainant while going through the said registered Deed of Conveyance, noticed that the said front open car-parking space was not mentioned in schedule which means that the same was not registered in favour of the complainant. Thereafter the Complainant met with the OP1and assured by the OP1 that the said car-parking space will be registered immediately. Since then the Complainant on several occasions requested the OP1 through letters to sort out the dispute but the OP1 on one pretext or other lingered the matter. Having no other option the complainant sent a legal notice dated 14.03.2022 through her Ld. Advocate to the OP1 and the same was replied by the OP1 through a letter dated 02.04.2022. But the dispute is not solved till date. Hence the Consumer Complaint.
OP1 contested the case by filing WV stating that case is not maintainable either in facts or in law and does not disclose any deficiency of service committed on the part of the OP1. The case of the OP1 is that the oP1 entered into a Development Agreement on 16.06.2005 with the OPs 2 to 6 who are the land owner of land measuring about 5 cottahs 1 chittack and 35 square feet more or less lying and situated at 21, Bhaktiyar Shah Road, P.S. –Charu Market, Kolkata – 700033 within the limits of the KMC ward No. 89 and subsequently OPs 2 to 6 executed a Power of Attorney in the year 2005 thereby appointing the OP1 as their constituted attorney. The Complainant approached the OP1 for purchasing a flat measuring 560 sq.ft super built-up area on the ground floor along with one front open car parking space of the building. The consideration money of the flat was determined as Rs.4,60,000/- and accordingly the parties entered into an Agreement for Sale dated 02.01.2006. Subsequently the OP1 handed over the possession of the said flat and front open car parking space. In terms of the Payment Schedule of the Agreement for sale dated 02.01.2006 the Complainant paid the consideration amount and the OP1 executed a Deed of Conveyance on 12.06.2008.the Complainant enjoyed the right over the said flat and front open car parking space from the date of the flat was registered in her name, but sometimes in the year of 2010 it was found by the Complainant that the front open car parking space was not mentioned in the Schedule. The mistake was absolutely inadvertent and/or unintentional. At the same time it was the duty of the Complainant to check and cross-check the Deed of Conveyance instead of lying in slumber since last 15 years. But the OP1 is no more Constituted attorney of the OPs 2 to 6 and therefore have no right and/or locus standi to execute any scrap of paper in favour of the Complainant. Further,if the car parking space is registered in favour of the Complainant through Court in ITS’ OWN MOTION by way of executing Deed of Conveyance OPI have no objection in any whatsoever.
Despite service of notice, OPs 2 to 6 did not appear before the Commission and file WV and the case has proceeded ex parte against the OPs 2 to 6.
In support of his case the complainant has tendered evidence supported by an affidavit and also relied upon documents annexed with the complaint petition. The OP1 declined to file any questionnaire in the instant case and an endorsement has been made for the OP1 at the left hand margin of the E/chief filed by the Complainant and also submitted that they would not file any E/chief. We have heard argument on merit and have also perused the record.
Admittedly the Complainant has purchased a flat measuring about 560 Sq.ft super built- up area along with a front open car parking space measuring about 150 sq.ft from the OP1 and the OP1 handed over the possession of the said flat and front open car parking space to the Complainant and executed a Deed of Conveyance in favour of the Complainant on 12.06.2006. It is also admitted that in the year 2010 the Complainant noticed that said car parking space was not mentioned in THE SCHEDULED “B”of the Deed of Conveyance. Ld. Advocate for the Complainant alleged they contacted the OP1 on several occasions through letters and at last has compelled to send a Legal Notice dated 14.03.2022. Photocopy of the said notice support this contention. Ld. Advocate for the OP1 argued that the mistake was inadvertent and/or unintentional. It is also submitted by the Ld. Advocate for the OP1 that it was also the duty of the Complainant to check and cross-check the said Deed of Conveyance. We find logic in this submission. It is also true that OP1 has no power to execute or register the said car parking space in favour of the Complainant as they have no Power of Attorney anymore. It is also not our expectation that the complainant by any means suffers from loss of money and time for the mistake or utter negligence on the part of the OP1. Under the above circumstances, the gross negligence and deficiency in service on the part of the OP1 is proved and the Complainant is entitled to get relief/ reliefs.
Based on the above discussion we disposed of the consumer case in the following terms:-
- OPs are directed to execute and register Deed of Conveyance in respect of the said front open car parking space measuring about 150 sq.ft on the ground floor of the said building in favour of the Complainant.
- Op1 is directed to pay litigation cost of Rs.5,000/ and Rs.10,000/- for harassment and mental agony to the Complainant.
- Above order shall be made within 06 weeks from the date of this order.
- Liberty is given to the Complainant to get the said front open car parking space on the ground floor of the said building executed and registered through the machinery of this Commission if the OPs transgress to comply the order.
The Complainant shall be at liberty to put the matter into execution as per Law.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
