Date of Filing : 10/01/2014

Order No.  23  dt.  30/11/2017

       The case of the complainants in brief is that the complainants for the purpose of purchasing a flat approached the o.p. no.2 who is the developer and he undertook to construct the building situated at 37/4C, Northern Avenue, Kolkata-30. The o.p. no.1 being the constituted attorney of the owner of the land and building entered into an agreement for construction of the said land after demolishing the old structure thereon with o.p. no.2 and the agreement was executed on 10.12.1996 in respect of the purchase and sale of a flat on the 2^nd floor containing an area of 1068 sq.ft. at a consideration price of Rs.80,100/- only. Another agreement was executed on 10.12.1996 for the flat on the 2^nd floor containing 1068 sq.ft of super built up area at a consideration price of Rs.3,20,400/-. The complainants paid an amount of Rs.80,100/- to o.p. no.1 towards the cost of undivided share of land pertaining to the flat in question and also paid Rs.3,20,000/- towards the cost of  erection, supervision and completion of the said unit. The o.ps. in spite of receiving the amount did not hand over the possession for a long time and the complainants finally got the possession on 26.7.1998. Since the possession of the flat the complainant requested the o.ps. to execute and register the deed of conveyance of the flat in question in favour of the complainants but o.ps. did not abide by the request of the complainants for which the complainant filed this case praying for direction upon the o.ps. praying for execution and registration of the deed of conveyance in respect of the flat in question in favour of the complainants and to pay compensation of Rs.5 laksh.

            In spite of receipt of notice the o.p. no.1 did not contest this case by filing w/v and as such, the case has heard ex parte against the o.p. no.1.

            The o.p. no.2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that no agreement for sale was ever signed by o.p. no.2. The complainants only paid the part of the consideration money to o.p. no.2 and it was agreed upon by and between the complainants and o.p. no.2 that the agreement for sale shall be signed by the parties after a few days and o.p. no.2 on good faith received the part of the consideration money from the complainants and considering the urgent need of the complainants the o.ps. on good faith handed over the possession of the flat to the complainants and the complainants assured to o.p. no.2 that the balance of the consideration money shall be paid by them, but even without making any payment of the rest of the consideration money the complainants are enjoying the said flat for a period of 20 years and the complainants cleverly filed this case before this Forum against the o.ps. with an allegation of deficiency in service and unfair trade practice. It was further stated that the complainants entered into an agreement for sale on 10.12.1996 for purchase of a self contained flat for a total consideration amount of Rs.8,21,250/- and the complainants were liable to pay the said consideration money in full before the date of delivery of the possession of the flat but the complainant took possession of the flat and enjoyed the said flat without payment of the full consideration money. Since the complainants filed this case on false and frivolous ground, the o.p. no.2 prayed for dismissal of the case.

            On the basis of the pleadings of parties the following points are to be decided:

1. Whether the complainants entered into an agreement with o.ps.?
2. Whether the complainants paid the entire consideration price to o.ps.?
3. Whether the complainants in spite of having the possession of the flat in question o.ps. failed to execute and register the deed of conveyance in respect of the flat in favour of the complainants?
4. Whether there was any deficiency in service on the part of o.ps.?
5. Whether the complainant will be entitled to get the relief as prayed for?

Decision with reasons:

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Ld. lawyer for the complainant argued that the complainants for the purpose of purchasing a flat approached the o.p. no.2 who is the developer and he undertook to construct the building situated at 37/4C, Northern Avenue, Kolkata-30. The o.p. no.1 being the constituted attorney of the owner of the land and building entered into an agreement for construction of the said land after demolishing the old structure thereon with o.p. no.2 and the agreement was executed on 10.12.1996 in respect of the purchase and sale of a flat on the 2^nd floor containing an area of 1068 sq.ft. at a consideration price of Rs.80,100/- only. Another agreement was executed on 10.12.1996 for the flat on the 2^nd floor containing 1068 sq.ft of super built up area at a consideration price of Rs.3,20,400/-. The complainants paid an amount of Rs.80,100/- to o.p. no.1 towards the cost of undivided share of land pertaining to the flat in question and also paid Rs.3,20,000/- towards the cost of  erection, supervision and completion of the said unit. The o.ps. in spite of receiving the amount did not hand over the possession for a long time and the complainants finally got the possession on 26.7.1998. Since the possession of the flat the complainant requested the o.ps. to execute and register the deed of conveyance of the flat in question in favour of the complainants but o.ps. did not abide by the request of the complainants for which the complainant filed this case praying for direction upon the o.ps. praying for execution and registration of the deed of conveyance in respect of the flat in question in favour of the complainants and to pay compensation.

            Ld. lawyer for the o.p. no.2 argued that no agreement for sale was ever signed by o.p. no.2. The complainants only paid the part of the consideration money to o.p. no.2 and it was agreed upon by and between the complainants and o.p. no.2 that the agreement for sale shall be signed by the parties after a few days and o.p. no.2 on good faith received the part of the consideration money from the complainants and considering the urgent need of the complainants the o.ps. on good faith handed over the possession of the flat to the complainants and the complainants assured to o.p. no.2 that the balance of the consideration money shall be paid by them, but even without making any payment of the rest of the consideration money the complainants are enjoying the said flat for a period of 20 years and the complainants cleverly filed this case before this Forum against the o.ps. with an allegation of deficiency in service and unfair trade practice. It was further stated that the complainants entered into an agreement for sale on 10.12.1996 for purchase of a self contained flat for a total consideration amount of Rs.8,21,250/- and the complainants were liable to pay the said consideration money in full before the date of delivery of the possession of the flat but the complainant took possession of the flat and enjoyed the said flat without payment of the full consideration money. Since the complainants filed this case on false and frivolous ground, the o.p. no.2 prayed for dismissal of the case.

            Considering the submissions of the respective parties it is an admitted fact that the complainants for the purpose of purchasing a flat entered into an agreement with o.ps. and the complainant after payment of the amount took possession of the flat in question. In support of the said contention the complainants filed some documents showing that the consideration price was paid to o.ps. It is also an admitted fact that the complainants got the possession of the flat in question and the complainants on repeated occasions requested the o.ps. to execute and register the deed of conveyance in respect of the flat in favour of the complainants, but o.ps. di not comply the request of the complainants for which the complainants filed this case. the complainants in support of the said contention adduced evidence to that effect. The o.ps. though denied that they did not receive the consideration price, but no evidenced has been adduced to that effect, on the contrary, o.ps. claimed that the documents filed by the complainants are manufactured documents, in order to prove that those were manufactured o.ps. failed to file any petition for appointment of a hand writing expert to substantiate the claim of o.ps. that those documents were manufactured. Since no contrary evidence has come before this Forum, therefore, we have no other alternative but to accept the claim of the complainants that after receiving the entire consideration money and giving possession of the said flat to the complainant the o.ps. failed and neglected to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants. In view of the facts and circumstances as stated above, we hold that there is gross deficiency in service on the part of o.ps. and as such, the complainants are entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.

            Hence, ordered,

            That the CC No.22/2014 is allowed ex parte against the o.p. no.1 and allowed on contest against the o.p. no.2 with cost. The o.ps. are jointly and/or severally directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants and are further directed to pay to the complainants compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.           

            Supply certified copy of this order to the parties free of cost.