Dt. of filing- 05/03/2019
Dt. of Judgement- 30/12/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint petition is filed by Smt. Rima Banerjee under Section 12 read with Section 13 of Consumer Protection Act, 1986 alleging deficiency in services on the part of the Opposite Parties namely (1) M/s. D .D. Mukherjee (2) Sri Debdas Mukherjee alias Debu Mukherjee (3)Smt. Prova Chatterjee (4) Sri Bhupen Chatterjee (5)Smt. Bharati Mukherjee (6) Smt. Gayatri Banerjee (7)Smt. Kalpana Ghosh (8)Smt. Sumitra Dasgupta (9)Sri Satyendranath Chatterjee (10) Sri Rabindra Nath Chatterjee (11)Smt. Rani Chatterjee (12)Smt. Archana Pyne (13) Smt. Kaya Roy (14) Smt. Mitra Ghosh (15) Sri Rudra Chatterjee (16)Sri Buddhadeb Chatterjee (17) Smt. Roma Chatterjee (18) Sri Aindrilia Chatterjee (19) Sri Indra Nath Chatterjee (20)Smt. Prosanti Chatterjee (21) Smt. Sharmistha Bhadra (22)Smt. Indrani Batters and (23) Sri Robin Chatterjee.
Case of the complainant in short is that OP No.1 is a developer being represented by its sole proprietor i.e. OP No. 2. OP Nos. 3 to 23 are joint owners of the property described in the schedule ‘A’ of the complaint. Complainant by an agreement for sale dated 20.09.1999 agreed to purchase a flat more or less 1100 sq.ft covered area on the 3rd floor ( South East facing ) and one covered car parking space on the ground floor from the developer’s allocation at a total price of Rs. 8,40,000/-. As per mutual discussion with the developer, complainant also agreed to pay the extra cost for extra works if done. So, she has paid Rs. 50,000/- towards the said extra cost and thus has paid the total consideration of Rs. 8,88,000/-. After completion of the flat, including one covered car parking space the possession of the same has been handed over to the complainant in the month of October, 2002 but without issuing any possession letter. So, complainant is in possession of the flat and the car parking space. But in spite of the repeated request the deed has not been executed in her favour as per agreement. So, the present complaint has been filed praying for directing the OP No.1 to 23 to execute and register the deed of conveyance in favour of the complainant in respect of the flat and one covered car parking space described in the schedule ‘B’ of the complaint directing the OPs to provide the Completion Certificate of the building, to pay compensation of Rs. 3,00,000/- and litigation cost of Rs. 50,000/-.
Complainant has filed agreement for sale entered into between the parties dated 20.01.1999, money receipts , copy of the development agreement , copy of the notice dated 24.01.2019 sent by the complainant to the OPs.
On perusal of the record it appears that the notice was sent to the OPs. But none of the OP took any step and so the case was fixed for exparte hearing vide order dated 25.10.2019.
During the trial, complainant has filed affidavit in chief supporting her claim. So, the only point requires determination is
Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Complainant has claimed that she agreed to purchase the flat and car parking space on consideration of Rs. 8,40,000/- and also has agreed to pay an amount of Rs. 50,000/- towards extra works done. thus total consideration price of Rs. 8,90,000/-. In order to show the payment she has filed the receipts wherefrom it appears she has paid a total sum of Rs. 8,88,000/-. But on perusal of the agreement dated 20.01.1999 it is apparent that the agreement was entered into by the complainant with the developer only in respect of the flat and there is no such mentioned of covered car parking space as claimed by the complainant in the complaint. The recital in the agreement is very categorical that the flat holder have agreed to purchase one flat comprising nearly 1100 sq.ft. (approx.) covered area including proportionate share of common service on 3rd floor South East facing of the proposed residential building to be constructed at the 14C, Dhakuria Station Road, Kolkata - 700 031, P. S. Jadavpur, Ward no. 92. In the schedule of the agreement also there is only mentioned about the flat. However, on a careful scrutiny of the schedule stated in the agreement even though it is stated therein flat on the 2nd floor but in the body of the agreement it is categorically mentioned that the flat is as agreed in the 3rd floor. The notice dated 26.09.2002 sent by the Op/developer to the complainant also reveals about the flat in the 3rd floor South East facing. It may be pertinent to point out that in the said notice dated 26.09.2002 also, there is no mention about the covered car parking space as claimed by the complainant. So, in the absence of any agreement between the parties with regard to covered car parking space, there cannot be any direction as prayed by the complainant. But as even though possession of the flat as per agreement has been handed over and no deed has been executed, complainant is entitled to the execution and registration of the deed in her favour especially when no contrary material is forthcoming before this Forum to counter or rebut the claim of the complainant. However, as the receipt filed by the complainant shows the payment of Rs. 8,88,000/-, she is liable to pay Rs. 2,000/- towards the balance consideration price. So far as compensation as claimed by the complainant, according to the complainant, physical possession of the flat was handed over in 2002. She has not explained as to why she did not take immediate step and has filed this case only in 2019. If she had moved before, she would not have to bear the registration fee as per present market value. So, on consideration of the totality of the circumstances, an amount of Rs. 50,000/- as compensation and litigation cost of Rs. 10,000/- is justified.
Hence,
Ordered
CC/135/2019 is allowed exparte. Opposite Parties are directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat as per agreement dt. 20.01.1999 within three months from the date of this order on payment of balance consideration price of Rs. 2,000/- by the complainant to the developer. OPs are further directed to pay compensation of RS. 50,000/- and litigation cost of Rs. 10,000/- within the aforesaid period of three months.
