Dt. of filing- 04/06/2019

Dt. of Judgement- 16/01/2020

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint  is filed by Narciana Jesmin under Section 12 of the Consumer Protection Act alleging deficiency in service on the part of the Opposite Parties namely (1) Walden Estates Ltd., (2) Sri Dipankar Naskar and (3) Smt. Nisha Naskar .

          The case of the  complainant  in short is that  OP No.1 is a Private Limited Company represented  by its Director OP No.2 and 3. OP No.1 acquired separate plot of land  for the purpose of  establishing  a Residential  Township under the name and style  “Village City Project” . Complainant booked one plot of land  being Plot No. A-36 in the said project and paid a total consideration of Rs. 3,00,000/- as per agreement  entered into between the  parties on 14.02.2015 . Subsequently, a Deed  of Conveyance has been executed and registered in favour of the complainant in respect of the said plot of land on 09.06.2017.But the complainant has not been delivered  the possession  of the said  plot by the OPs. On several occasion, complainant  visited the office of the  OP asking for delivery of possession  but no step was taken by the OP and thus the present  complaint has been filed by the complainant praying to direct the OPs  to deliver the possession of the  plot of land  or to deliver possession of any adjacent plot of same value and executing a sale deed, in  alternatively,  to refund Rs. 3,40,000/-  to the complainant. Complainant  has also prayed for Rs. 40,000/- paid towards registration, to pay compensation of Rs. 3,00,000/- and litigation cost  of Rs.30,000/-.

          Complainant  has  annexed  with the complaint, copy of the agreement  for sale entered into  between the parties on 14.02.2015, copy of the money receipts showing payment of the money, copy of the deed of conveyance dated 09.06.2017 executed in favour  of the complainant and copy of the notice dated 26.02.2018 sent by the complainant to the OP.

          On perusal of the record it appears  that  inspite of service of the  notice as the OPs   did not take any step, case was fixed  for exparte hearing vide order dated 29.08.2019.

          During the course of the trial  complainant filed affidavit in chief  and ultimately argument  has been advanced.

          So  the only point requires determination is :-

          Whether  the complainant   is entitled to the relief as prayed for ?

Decision with reason

          It is claimed by the complainant  that as per the agreement for sale  between the parties entered   on 14.02.2015 though the  deed of conveyance has been executed  in respect of the  schedule plot  in favour of the complainant on 09.06.2017, but the possession of the plot of   land  has not been  delivered to the  complainant. Present complaint  has been  filed on 04.06.2019 i.e.  nearly two years from the date of  registration of deed of conveyance.   It is not clear as to why  there has been  delay  if the possession  was not delivered  to the  complainant. However, be that as it may,  as before this Forum, there is  absolutely no  contrary material  to the  rebut  and counter the  claim  of the complainant  that the possession has not been delivered, the complainant is entitled  to the possession of the said  plot of land. But regarding the relief  sought for by the complainant, for directing the  OPs to deliver the possession  of any adjacent plot of the same value and  for executing  the sale deed  or in alternatively to refund  the sum  paid by  the complainant, cannot be allowed as this Forum has no jurisdiction  to cancel  a  deed. Unless the deed executed and registered in the name of the complainant in respect of the  Plot No. A-30 on 09.06.2017 by which  he has  already  acquired   title over the  same plot  is cancelled, there cannot be any direction for execution and registration  of deed and to deliver the possession of any adjacent plot. Similarly, unless deed  standing  in the name  of the complainant is cancelled,  he is not entitled to refund of the sum paid by him. Cancellation of a Deed can only be done by a  competent Civil Court and thus  the complainant  is  only entitled to the relief  as to direction   upon the  OPs to deliver the possession  of the plot of land as described in the  deed of conveyance  dated 09.06.2017. In the given situation  of this case, we find  no justification to allow  compensation.  However, complainant  is entitled to the litigation  cost.

Hence,

                      Ordered

        CC/268/2019 is allowed  exparte in part. Opposite Parties are directed to deliver the possession of the plot as agreed between the parties within three months from this date. They are further directed to pay litigation cost  of Rs. 10,000/-  within the aforesaid period of three months.