Date of filing : 27.05.2019

Judgment : Dt.18.02.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Basudev Nandy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/S Shelter, a proprietorship firm, represented by its proprietor Sri Asish Bal and (2) Sri Anath Bandhu Dutta.

            Case of the Complainant, in short, is that by a registered agreement for sale dt.17.10.2007, OP No.1 being the developer agreed to sell the flat as described in the schedule of the agreement along with car parking space at a total consideration of Rs.10,00,000/-. Complainant has made the entire payment of Rs.10,00,000/-. Instead, he has paid Rs.20,000/- in excess. It was agreed that the developer shall handover the possession of the flat and car parking space in a complete and habitable condition. But, in spite of sending the notice by the Complainant to OP to complete the construction of the flat to make it habitable, it was not done by the OP No.1 and he made a declaration stating that he was unable to complete the construction and he also issued a cheque amounting Rs.5,00,000/- in favour of the Complainant towards refund of the part consideration for non-completion of the construction work. But when it was presented in the Bank, it was dishonoured on the ground of funds insufficient. So, Complainant at his own cost has completed the said flat and the car parking space. But, in spite of repeated requests, the deed of conveyance has not been executed in favour of the Complainant by the OPs. OP No.2 is the owner of the property. So, the present case has been filed by the Complainant directing the OPs to execute the deed of conveyance, to pay litigation cost of Rs.25,000/- and to pay compensation of Rs.2,00,000/-.

            Complainant has annexed with the complaint, copy of the agreement for sale dt.17.10.2007 entered into between the parties which is a registered agreement, money receipts showing payment of the consideration price, Bank statement, copy of the provisional certificate of grant of sanctioning of loan by the Bank, copy of letter sent by the Complainant dt.1.12.2009 and 18.1.2009 to the OP No.1, copy of the declaration made by the OP No.1 dt.7.3.2010, copy of the electricity bill, copy of the cheque issued by OP No.1 and the Bank slips that the same was dishonoured and also the copy of the letter dt.4.4.2009 sent by OP No.1 to the Complainant.

            On perusal of the record, it appears OP No.2 appeared on receipt of the notice, but submitted that he does not intend to file any written version. OP No.1 did not take any step. Ultimately, OP No.2 also did not take any further step .The Case proceeded ex-parte against OP No.1. OP No.2 did not file any questionnaire against to the affidavit-in-chief filed by the Complainant, neither any evidence was filed by him. Ultimately argument has been heard on behalf of the Complainant.

            So, the following points require determination :-

1. Whether there has been any deficiency in service on the part of the OPs?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Complainant has claimed that by a registered agreement for sale dt.17.10.2007, Complainant agreed to purchase the flat as described in the 2^nd schedule of the agreement, at a consideration of Rs.10,00,000/-. Complainant has filed agreement and has also filed several receipts showing payment of the consideration price. He has filed certain Bank documents in order to show that he had also taken the loan and has paid back the entire loan amount. So, on consideration of the agreement dt.17.10.2007 and money receipts as apparently Complainant has paid the entire consideration amount to the OP No.1, Complainant is entitled to the execution and registration of deed in his favour especially when no contrary material is forthcoming before this Forum. It appears from the agreement entered into between the Complainant and the OP that OP No.1 executed the agreement as developer and as constituted attorney of the owner namely OP No.2. Agreement dt.17.10.2007 reveals that the development agreement between the OP No.1 and OP No.2 was entered into on 8.7.2006. A power of attorney was also registered by the owner in favour of the developer on the same day i.e. on 8.7.2006. Admittedly, possession has already been delivered to the Complainant, however in incomplete condition and the same has been completed by the Complainant at his own cost. In order to show his possession, Complainant has also filed copy of electricity bill. Even though Complainant has claimed that an amount of Rs.5,00,000/- which was paid by the OP No.1 towards refund for incomplete work by way of cheque and the same was dishonoured, Complainant has not prayed any relief towards refund. He has only prayed for execution and registration of the deed of conveyance, compensation and litigation cost. So, on consideration of the discussion as highlighted above, as deed has not been executed, OPs are liable to execute the deed and as the Complainant completed the in-complete construction work, at his own cost and also will have to bear the registration cost as per present market value, he is entitled to the compensation. An amount of Rs.50,000/- towards compensation and Rs.10,000/- as litigation cost will be justified.

            Hence

                               ordered

            CC/246/2019 is allowed ex-parte against OP No.1 and on contest against OP No.2. OPs are directed to execute and register the deed of conveyance in favour of the Complainant in respect of the flat as per agreement dt.17.10.2007, within two months from the date of this order. OP No.1 is further directed to pay compensation of Rs.50,000/- and Rs.10,000/- as litigation cost within the aforesaid period of two months.