Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

   The brief fact of the case is that being an intending purchaser the complainant has entered into an agreement for sale on 14.08.2016 with o.p. no.1 & 2 developer M/s Ganapati Builder for purchasing one self contained residential flat on the 1^st floor at the east south-west side measuring 525 sq.ft. super built up area marble flooring consisting of two bed room, one kitchen and one toilet at KMC premises no.166, Diamond Harbour Road at a consideration amount of Rs.17, 50,000/-. Subsequently the complainant entered into another agreement with same o.p. developer on 09.11.2016 for purchasing one room just adjacent to the above mentioned flat on 09.11.2016 against the consideration amount of Rs.3,90,000/-. By virtue of these two agreement for sale dt.14.08.2016 and 09.11.2016 o.p. has delivered possession of a self contained residential flat on the 1^st floor at the east south-west side measuring 640 sq.ft. (525+115) super built up area marble flooring, consisting of three bed room, one kitchen and one toilet of the said G+3 storied building at KMC premises no.166, Diamond Harbour Road at a consideration amount of Rs.21,40,000/- (17,5000+3,90,000). The complainant has paid consideration amount of Rs.20,40,000/- only to o.p. nos.1 & 2 developer with proper acknowledgement. As per the agreement it was decided between the parties that the balance consideration amount of Rs.1 lakh will be paid at the time of registration of deed of conveyance. After completion of the building o.p. nos.1 & 2 has delivered the physical possession of the said flat to the complainant on 31.03.2018 in the name of the complainant and his wife Smt. Shyamali Mondal and assured the complainant that within the validity of query date i.d. within 27.04.2018 o.p. shall execute the registered deed of conveyance in favour of the complainant and his wife. But even after expiry of extension of query o.p. did not execute and register sale deed in respect of the said flat. The o.ps. wilfully harassing the complainant and did not execute and register the sale deed in favour of the complainant.

            By filing W/V o.p. no.3 has denied and disputed all allegations made against them. They have stated that o.p. nos.3 to 7 are joint owners of the land and o.p. nos.1 & 2 are the developers and on good faith o.p. nos.3 to 7 jointly made a registered power of attorney along with a development agreement with o.p. nos.1 & 2 and the same was registered on 25.06.2013. The o.p. nos.3 already received their allocation as per the development agreement from the developer in the newly constructed building. The o.p. no.3 has further stated that during continuation of the construction of the building the complainant came into an agreement with the developer o.p. nos.1 & 2 and on 09.11.2016 in respect of the adjacent one room. But o.p. no.3 has  no personal knowledge in respect of those two agreements. The o.p. nos.3 to 7 have already given power on pursuance to the development agreement for executing agreement of deed of conveyance with an intending purchasers on their behalf. The o.p. no.3 neither signed any agreement with the present intending purchaser. The complainant is liable to prove all allegations made against them in the paragraph of this petition of complaint.

            It appears from the record that the case was fixed for ex parte hearing against o.p. nos.1 , 2, 4, 5, 6 & 7 as they have not filed W/V. Only o.p. no.3 has filed W/V on 19.02.2022. But in spite of opportunity o.p. no.3 did not file evidence on affidavit and questionnaire. The complainant files BNA and the case is taken up for ex parte hearing.

            Heard the Ld. Advocate for the complainant. Perused all documents.

            It appears from the careful perusal of the materials on record that o.p. nos.3 to 7 being the landowners entered into a development agreement on 25.06.2013 along with the proprietorship firm M/s Ganapati Builders represented by its proprietor Mr. Sanjay Sharma for construction of a building. Accordingly, o.p. nos.3 to 7 also executed and registered a general power of attorney in favour of the developer, o.p. nos.1 & 2 which was executed and registered on 25.06.2013 in the office of ADSR, Behala and the same was recorded in Book No.1, Volume No.19. Subsequently the complainant being an intending purchaser by virtue of two agreements for sale dt.14.08.2016 and 09.11.2016 booked one flat and one adjacent flat (room) subsequently made payment of consideration amount of Rs.21,40,000/- to o.p. developer with proper acknowledgement. The complainant is ready and willing to make payment of balance consideration amount of Rs.1,00,000/- at the time of registration. As per the agreement dt.14.08.2016 and 09.11.2016 it was decided in between the parties that the said amount is to be paid at the time of registration of the flat. But the fact remains that o.p. developer has delivered possession and the complainant is residing in the said flat, but in spite of payment of Advocate fees and other Misc. cost of Rs.25,000/- for preparation of deed and stamp duty o.p. developer did not register the said flat till date.

            On scrutiny of records it appears that the statement made in evidence on affidavit filed by the complainant remain unchallenged and uncontroverted. It has already been decided in Apex Court in various cases that the parties are bound by the contract of agreement and o.ps. have obligation to register the flat in question in the name of the complainant and at this stage, they cannot deny the same. Such wilful negligence and failure of their promise caused enormous harassment and mental agony to the complainant.

            On evolution of the materials on record it appears that the complainant is a consumer as defined u/s 2(1)(d) of C.P. Act, 1986 who hired services relating to housing construction from o.ps. developers. But in spite of handover possession the registration of the said flat was not done till date. We consider such negligence as a serious deficiency on the part of the developer u/s 2(1)(g), 2(1)(o).

            In view of the above discussion, the complaint is allowed ex parte with the following directions;

1. The o.ps. are jointly and severally directed to execute and register the deed of conveyance in respect of the flat on the 1^st floor at the east south-west side measuring 640 sq.ft. as mentioned in the  agreements in the name of the complainant, failing which the deed of conveyance shall be executed and registered through the machinery of this Commission.
2. The o.p. nos.1 & 2 developers are directed to pay Rs.50,000/- (Rupees fifty thousand) only as cost of litigation  within 60 days from the date of judgment, otherwise the amount shall carry interest @9% p.a. till realisation.