Date of filing :9.3.2018
Judgment : Dt.31.10.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Milan Chandra Halder alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely M/s Guddy Construction, (2) Smt. Maya Bhowmik, (3) Smt. Champa Bhowmik and (4) Smt. Tumpa Roy.
Case of the Complainant, in brief, is that the Complainant entered into an Agreement for Sale on 01.12.2013, with the OP No.1 who put his signature as proprietor of Guddy Construction and constituted Attorney of the owner i.e. OP Nos.2 to 4 in respect of a flat on the 1st floor North facing at a building to be developed within the premises situated at E/15B, Bapuji Nagar, Kolkata-700 092 P.S.-Jadavpur at a consideration of Rs.10,50,000/- only. The Complainant has stated that he had paid Rs.2,00,000/- to the OP No.1 at the time of signing agreement and thereafter paid the entire amount of consideration, as per agreed mode of payment, even in excess of Rs.1,50,000/- and the OP No.1 receiving the said amount delivered possession of the said flat to the Complainant vide possession letter dt.10.10.2014. The Complainant has stated that since then he has been requesting the OP developer to execute and register the Deed of Conveyance to which the OP Developer has turned a deaf ear.
Accordingly, the complainant by filing the instant complaint has prayed for direction upon the OPs to execute and register the Deed of Conveyance in respect of the flat in question in favour of him after refund of excess amount of Rs,.1,50,000/-, to pay Rs.5,00,000/- towards compensation for causing harassment and Rs.50,000/- towards cost of litigation.
The OP No.1 has contested the case and filed written version stating, inter alia, that the Complainant with intention to purchase a self contained flat contacted the OP No.1 and accordingly an Agreement for Sale was executed in respect of a flat measuring more or less 460 sq.ft. super built up area on first floor of a three storied building at municipal premises No.62E/113B/1B, Raja Subodh Mallick Road having mailing address E/15B, Bapuji Nagar, P.S.-Jadavpur, Kolkata – 700 092. It is further stated by the OP No.1 that the OP Nos.2 to 4 are the owners of the said piece of land, who executed a Development Agreement on 9.10.2013 and, thereafter, a registered Power of Attorney in favour of the OP No.1 so that he might be able to construct a three storied building in the said piece of land and as per terms of the said Development Agreement the OP No.1 constructed a three storied building at the said piece of land. It is further stated by the OP No.1 that as per terms of the Agreement for Sale dt.1.12.2013 executed by and between the Complainant and the OP No.1 possession of the flat in question has been delivered to the Complainant and receiving the same, the Complainant has been residing there. It is specifically stated by the OP No.1 that the OP No.1 is willing and ready to register the Deed of Conveyance in favour of the Complainant but problem arisen when the OP Nos.2, 3 & 4 neglected to provide their PAN No. which was required to execute registration of the Deed of Conveyance. It is also stated by the OP No.1 that he has communicated the aforesaid fact to the Complainant by a letter through his Ld. Advocate, which was sent in reply to letter dt.17.5.2017 issued by the Complainant’s Advocate. According to the OP No.1 he has no laches on his part for non-execution of Deed of Conveyance in favour of the Complainant since the land owners i.e. OP Nos.2 to 4 did not cooperate with him by providing their respective PAN related documents.
Notices were served upon the OP Nos.2, 3 & 4 but they did not turn hence the case proceeded ex-parte against them vide order No.6 dt.7.6.2018.
The Complainant has prayed for treating the petition of complaint as affidavit-in-chief. Prayer was allowed.
In course of argument Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Ld. Advocate for the OP No.1 submitted that the Complainant by filing a verified petition on 23.7.2018 stated that they would not press for compensation and litigation cost.
Points for determination
- Whether there is deficiency on the part of the OPs?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Both the points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant entered into an agreement for sale with the OP No.1 who was the constituted attorney of the OP Nos.2, 3 & 4 in respect of the flat in question. Admittedly, possession of the said flat has already been delivered to the Complainant. It is evident that the Developer has raised no question of non-payment of outstanding amount towards consideration.
The Developer has candidly expressed that he is ready and willing to register the Deed of Conveyance in favour of the Complainant but due to non-availability of PAN documents of the landowners the registration of the Deed of Conveyance has not been executed so far, which he has communicated through Ld. Advocate. Copy of letter by the Ld. Advocate for the OP No.1 (which was sent in reply to the letter dt.17.5.2017 issued by Ld. Advocate of the Complainant).
It is also evident that there is no dispute regarding delivery of possession of the flat in question. It appears that possession of the said flat has been delivered in time and the Complainant has been enjoying the said flat since then.
However, the Complainant has stated that he paid Rs.1,50,000/- in excess to the OP No.1 and has prayed for direction for refund of the same. In this regard, we hold that the Complainant has paid excess amount, if any, is likely to be voluntarily.
In such view of the matter, we are not inclined to direct the OP Developer to refund the same.
It is evident that the Complainant has entered into an Agreement for Sale in respect of the flat in question, got possession of the same and, therefore, is entitled to get the flat registered in his favour.
The Complainant failed to proof that he has suffered to such extent so that an amount of Rs.5,00,000/- towards harassment may be allowed. Moreover the Complainant himself by filing a petition not pressed the claim of compensation and cost. Considering such circumstances, we are not inclined to pass any order as to cost and compensation.
Both points are answered accordingly.
In the result, the Consumer Complaint succeeds.
Hence ordered
That CC/121/2018 is allowed in part on contest against OP No.1 and allowed ex-parte against OP Nos.2 to 4 but without any order as to cost.
The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within two months from the date of communication of this order to the OP Nos.2 to 4.
The OP Nos.2 to 4 are directed to hand over their PAN related documents to the OP No.1 immediately after communication of this order to them.
