Date of Filing : 26/04/2022
Date of Judgement : 18/09/2024
Sri Manish Deb, Hon’ble Member
The fact of the case is that the complainant filed the instant case for execution and registration of the deed of conveyance in respect of flat No.1B on the first floor of the building No.II having super built up area measuring 1074 sq.ft. more or less and one covered car parking space No.1B-II at Premises No.2/1 Naresh Mitra Sarani (previously known as 2/1 Beltala Road, P.S. Bhowanipore, Kolkata – 700026 , KMC Ward No.72.
None of the opposite parties contested the instant case by filing their written version in spite of service of notices.
That the OP No.1 was the sole and absolute owner of all that piece and parcel of land measuring 16 cottahs 3 chittaks 9 sq.ft. at Premises No.2/1 Naresh Mitra Sarani Sarani (previously known as 2/1 Beltala Road, P.S. Bhowanipore, Kolkata – 700026 , KMC Ward No.72. The OP No.1 acquired the aforesaid property by virtue of 12 separate deed of conveyances all duly registered on 21.08.1992 in the office of the Registrar of Assurance Calcutta from the then owners Anath Bandhu Guha & Sons Ltd on payment of valuable consideration. It is relevant to mention here that the said previous owner of the aforesaid property namely Anath Bandhu Guha & Sons Ltd obtained a sanctioned Building Plan No.38 dated 08.09.1992 from the Calcutta Municipal Corporation and the OP purchased the aforesaid property including the said sanctioned building plan. Thus seized and possessed of the aforesaid property, entered into an Agreement for Development with the OP No.2 on 08.02.1993 under certain terms and conditions and stipulations.
By the said Agreement the OP No.1 agreed with the OP No.2 to erect and build multi storied building over the aforesaid premises and to sell and/or dispose off the various units to be constructed thereon including the common areas and common parts therein to various purchasers and it was further agreed that the intending purchaser shall enter into an agreement for acquiring the undivided impartiable variable proportionate share in the land comprised in the aid premises and attributable to such units, flats constructed portion in respect of the land below and underneath the building wherein such unit, flat, apartment are situated and the intending purchaser shall pay the cost of the proportionate share of the land directly to the owner and obtain conveyance in respect of the said land from the owner/the OP No.1 and the intending purchaser shall also make payment of the cost of the construction directly to the builder/the OP No.2.
That the complainant was searching for a residential accommodation for its staff in the locality came into contact with the OPs and inspected the said flat then under construction at Premises No.2/1 Naresh Mitra Sarani Sarani (previously known as 2/1 Beltala Road) , P.S. Bhowanipore, Kolkata – 700026 , KMC Ward No.72 and inspected the deeds and documents relating to the aforesaid property and being satisfied with the papers and documents expressed willingness to acquire a self contained float No.1B on the first floor of the Building No. II containing a super built up area 1074 sq.ft. more or less and one covered car parking space being No. IB-II lying and situated at Lav-Kush Apartment being Premises No.2/1 Naresh Mitra Sarani, Police Station – Bhowanipore, Kolkata 700026 together with the undivided proportionate share of the land and common rights over the common areas and amenities attached to the said premises at or for a total consideration of Rs.7,51,800/- out of which Rs.2,41,650/- to be paid to the OP No.1 and Rs.5,10,150/- to the OP No.2.
An agreement for sale was executed on 07.01.1997 between the complainant as purchaser and OP No.1 as owner and OP No.2 as developer under certain terms and conditions as mentioned in the said agreement dated 07.01.1997. in terms of the said agreement, the complainant paid Rs.2,41,650/- to the OP No.1 and Rs.5,10,150 to the OP No.2 and upon receipt of the entire consideration money the OP No.1 & OP No.2 issued Money receipts and OP No.1 delivered possession of the said flat.
That inspite of repeated requests the OPs failed and neglected to execute and register the deed of conveyance in favour of the complainant.
The complainant has come before the this Commission for redressal. The complainant as purchaser has performed his obligation by paying the consideration money but OPs failed neglected to render their services by executing and registering the deed of conveyance in respect of the flat as mentioned in the complaint petition.
Finding no other alternate complainant initiated this complain before this commission.
The property situated at Premises No.2/1 Naresh Mitra Sarani Sarani (previously known as 2/1 Beltala Road, P.S. Bhowanipore, Kolkata – 700026 within the territorial jurisdiction of the this Commission .
POINTS FOR DECISION
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not completing the registration process with completion certificate as stated in the compliant petition
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative
The complainant has submitted his evidence, brief note of argument in the case.
The complainant has adduced evidence together with copy of documents which includes money receipt.
The complainant filed one agreement dated 07.01.1997 with the OP No.2 and other on the same date with the OP No.1 and also filed the money receipts issued by both the OPs and also tax bill issued by the KMC in the name of the Complainant as person liable and also filed a copy of the notice of the Ld. Advocate for the complainant with the copy of postal receipt.
None of the opposite parties appeared in the instant case for filing their written version in spite of good service of notices.
On behalf of the complainant one of the Directors Mrs. Sadhana Nandy has adduced evidence but the said evidence was unchallenged.
No one has challenged the complaint petition as well as affidavit in evidence of the complainant therefore the statements made by the complainant as well as the documents tendered by the complainant are unchallenged and unchallenged evidence is deemed to be admitted.
The OPs have not contested the case , as such the ops have not filed any written version in the case , even the ops have not submitted any reliable documents defend the complaint filed by the complainant
We have applied our mind and meticulously gone through the materials on record. We find reasonable ground and proof there in support of complainant contention.
By all means we are of the opinion that OPs are liable in deficiency in service and unfair trade practice as alleged by the complainant even non appearing in the case and non filing of evidence by the OPs is a clear cut proof of deficiency in service on the part of the OPs , and there was an established fact of breach of contract as per the agreement so called
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
CC No.239/2022 is allowed ex parte against OPs with cost.
- OPs are directed to execute and register the deed of conveyance of the flat and Car parking space as mentioned in the scheduled of the complaint petition as well as fourth schedule of sale agreement within 60 days from the date of this order.
- OPs are directed to pay compensation of Rs.50,000/- to the complainant within 60 days from the date of this order.
- OPs are also directed to pay Rs.10,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
