Dt. of filing- 30/01/2018
Dt. of Judgement- 05/10/2018
Mrs. Sashi Kala Basu, President
This is a complaint filed under section 12read with section 13 of the Consumer Protection Act by Sri Tapu Sasmal alleging deficiency in service on the part of Opposite Parties namely 1) R. K. D. CoN 2) Sri Rabi Chakraborty 3 ) Sri Kamal Chakraborty (The developers) 4) Smt Bina Das 5) Sri Dhimon Das 6) Sri Pintu Das 7) Sri Bijoy Das 8) Sri Ajoy Das and 9) Smt Mukul Das (The owners).
Complainant’s case in short is that the Complainant entered into an agreement for sale on 15/02/2012 with the Opposite Parties for purchasing flat on the second floor (Front Side) measuring 410 Sq ft super built up area more or less situated in the premises No.E-164, Ramgarh, P.S. Jadavpur , Kolkata -47 (Municipal Premises No.87/12/479E, Raja S.C.Mullick Road), District -South 24- Parganas at a total consideration price of Rs.7,00,000/- . Opposite Parties No. 1 to 3 received entire consideration price from the Complainant on different dates and handed over the possession of the flat to the Complainant through possession letter dated 12/07/2014. After getting the possession of the flat Complainant has requested the Opposite Parties several times for execution and registration of the deed of conveyance but they failed and neglected to register the deed. Complainant also sent a notice through his Ld. Advocate to the Opposite Parties to execute and register the deed of sale but all in vain. There has been deficiency in service on the part of the Opposite Parties and thus this case has been filed by the Complainant for directing the Opposite Parties for registration of the flat in favour of Complainant by executing deed of sale, to pay Rs.10,000/- as compensation for mental agony and harassment and Rs.15,000/- as litigation cost.
The Complainant has annexed copy of the agreement for sale dated 15/02/2012, copy of the notice sent to the OPs by the Complainant through his Ld. Advocate and copy of the receipts showing payment of amount by the Complainant on different dates.
Opposite Parties no.1 to 3 have filed the written version contending inter alia that possession of the flat has already been handed over to the Complainant. Some amount of consideration is still due to be paid to the OP by the Complainant. Opposite Parties No.1 to 3 are always ready and willing for the registration of the deed of conveyance but the owners namely OP Nos. 4 to 9 are avoiding and neglecting to do so.
Opposite Parties No.4 to 9 did not take any step inspite of service of notices, thus vide order dated 19/3/2018, case proceeded ex-parte against them.
During the course of evidence, Complainant filed his evidence in examination-in-chief on affidavit but no questionnaire was filed by the OP nor any evidence was adduced by the OP Nos.1 to 3. So ultimately the case was fixed for argument and Complainant only filed brief notes of his argument.
Points for determination
- Whether Complainant is a consumer?
- Whether there is deficiency in providing service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1
Agreement for sale filed by the Complainant reveals that the Complainant entered into an agreement with the OP Nos. 1 to 3 to purchase a flat on consideration price of Rs.7,00,000/- . The consideration price has been paid to the OP Nos.1 to 3 by the Complainant towards hiring housing construction service. Thus the Complainant became consumer under the OPs (the service providers) as per the provision of section 2(1)(d) of the Consumer Protection Act.
This point is thus answered accordingly.
Point No.2 & 3
Both these points are taken up together for discussions in order to avoid repeatation.
Complainant has filed a copy of the agreement dated 15/02/2012 entered into between the Complainant and Opposite Party Nos. 1 to 3 (the developers) to purchase a flat on the second floor (Front Side) measuring 410 Sq ft super built up area more or less situated at Premises No.E-164, Ramgarh under P.S. Jadavpur, Kolkata -47, District – South 24- Parganas (Municipal Premises No.87/12/479E, Raja S. C. Mallick Road) at a consideration price of Rs.7,00,000/- (Seven Lakh).
It appears from the agreement that Opposite Party Nos.1 to 3 executed the said agreement for sale being empowered on the basis of a power of attorney entered by Opposite Parties No.4 to 9 but neither the copy of power of attorney has been filed either by the Complainant or by the Opposite Party Nos.1 to 3 nor they have filed the copy of development agreement allegedly entered between the developers and the owners.
A written version is filed by the OP Nos.1 to 3 admitting about entering into an agreement with the Complainant for sale of the flat as referred in the schedule and they have also admitted that the possession of the said flat has already been handed over to the Complainant. However it is contended by the OP Nos.1 to 3 that the entire consideration amount has not been paid and some amount is still to be paid but they have not stated the said specific amount due to be paid. According to the Complainant, he has paid the entire consideration price and have filed receipts in support of his said claim.
Complainant has also filed possession letter dated 12/07/2014 that the flat in question has already been handed over to him. He has also filed some electric bills and the municipal tax receipts and the address mentioned in these documents are of the flat mentioned in the Agreement or in the possession letter. So there is sufficient material indicating that the Complainant is in possession of the flat referred to in the petition of this consumer complaint. It is more strengthened in the absence of any contrary material in the record.
It is true that no development agreement and power of attorney in favour of OP Nos.1 to 3 is filed but the notices were sent to the OP Nos.4 to 9 the owners but they did not take any step. In the written version filed by the OP Noxs.1 to 3 which is supported by an affidavit, it is categorically stated that a development agreement was entered on 10/11/2010. If that be so then the case of the Complainant that consequent to the development agreement entered between Opposite Parties, he agreed to purchase the flat and thus entitled to execution any registration of deed of conveyance in his name, cannot be discarded. So on consideration of the entire facts and circumstances of this case, petitioner is entitled to the relief of execution and registration of the deed of conveyance as there has been deficiency of service on the part of OPs. He is also entitled to litigation cost of Rs.10,000/- as he was compelled to file the case. But in the given situation of this case no compensation is awarded.
These points are thus answered accordingly.
Hence,
ORDERED
CC/40/2018 is allowed on contest against OP Nos. 1 to 3 and ex-parte against OP Nos.4 to 9. Opposite Parties are directed to execute and register the deed of conveyance in respect of the flat on the second floor (Front Side) measuring 410 sq ft super built up area situated in the premises no.E-164 Ramgarh, P.S. Jadavpur, Kolkata -47, in the name of Complainant within three months from the date of this order. They are further directed to pay Rs.10,000/- as litigation cost to the Complainant within afore mentioned period of three months.
