Order-14.
Date-01/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that the complainant entered into an agreement on 20/03/2015 with O.P.-1 being the Developer for purchase of two garage space, one on the north-east side and other on the south-east side measuring about 565 Sq. Ft. together with proportionate undivided share of land and common facilities at premises No.15/13-A, Bose Pukur Road, 2nd Floor, P.O. & P.S. Kasba, Kolkata-700039. O.P.-2 is the wife of Amal Krishna Banerjee, since deceased, who is the sole legal heir of said Amal Krishna Banerjee and the present owner of the aforesaid premises. The complainant paid the total consideration of Rs.6,50,000/- as per said Agreement dated 20/03/2015 to O.P.-1 against proper receipt and no amount is payable to O.P.-1. As per agreement, the O.Ps. were under obligation to complete the execution and registration of the subject garage in favour of the complainant after receipt of entire consideration. O.P.-1 has handed over the possession in respect of two garage space to the complainant. Complainant is paying the taxes on regular basis and also making other expenses as mentioned in the agreement. Complainant repeatedly knocking the doors of O.Ps. with a request to execute and register the Sale Deed in favour of the complainant but to no good. Complainant has also served legal notice upon the O.ps. for execution and registration of the sale deed but to no result. Finding no other alternative the complainant has been compelled to move this Forum for redressal.
None appeared for on behalf of the O.P.-1 to contest the case in spite of service of notice and as such the case against O.P.-1 is proceeded ex-parte.
O.P.-2 appeared and contested the case by filing W.V. contending inter alia that she is the wife of deceased Amal Krishna Banerjee, who was the owner of the plot in pquesiton described in the agreement, who executed a power of attorney in favour of the O.P.-1 which has already expired after the death of her husband . O.P.-2 has no knowledge regarding the agreement made between O.P.-1 and the complainant and she prayed for dismissal of the complaint.
Point for Decision
- Whether the O.Ps. are deficient in rendering service to the complainant ?
- Whether the complainant is entitled to get relief as prayed for ?
Decision with Reasons
All the points are taken up together for the sake of convenience and brevity of discussion.
We have carefully perused the documents on record, evidence, photocopy of agreement dated 20/03/2015, payment receipts issued by O.P.-1, copy of legal notice and other documents.
It appears that the complainant entered into an agreement for sale with the O.Ps. for purchase of two garage spaces with consent and confirmation from the sides of the O.Ps. Complainant also paid the entire consideration money and O.P.-1 issued money receipts against such payment and O.P.-1 handed over the possession of two garage space in question to the complainant. It also appears that complainant served legal notice upon the O.Ps. for execution and registration of two garage in question as per agreement dated 20/03/2015 but O.Ps. have failed and neglected in fulfilling their part of contractual obligation as per the agreement executed on 20/03/2015 by and between the parties.
In the W.V. O.P.-2 stated that her husband Late Amal Krishna Banerjee was the owner of the subject premises bearing No.15/13-A, Bose Pukur Road, 2nd Floor, P.O. & P.S. Kasba, Kolkata-700039, handed over the premises to O.P.-1 who is the developer to develop and construct the flat and garage as per agreement and subsequently her husband died.
It appears that O.P.-2 is the legal heir of said Amal Krishna Banerjee, since deceased and being the legal heir O.P.-2 is the owner of the subject premises. So this O.P.-2 is also legally bound to execute and register the deed of sale of the garage in question. It also appears that the entire consideration has been paid and possession has already been delivered but the Deed of Sale is not executed by the O.Ps. without any cogent reason.
None came from the side of the O.P.-1 to challenge or contradict the allegations of the complainant and the petition together with the evidence on affidavit as adduced by the complainant remain unchallenged and uncontroverted by O.P.-1.
In the backdrop of such state of affairs, we think that O.Ps. are deficient in rendering proper service to the complainant as they failed to comply with the contractual obligation in terms of the agreement dated 20/03/2015 and thereby the complainant is harassed and suffered immense mental pain and agony.
Thus we cannot but to hold that the complainant should get the relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
The case be and the same is allowed ex-parte against O.P.-1 with cost of Rs.5,000/- and on contest against O.P.-2 without cost.
O.Ps.-1 and 2 are jointly and severally directed to execute and register the Deed of Conveyance in respect of two garages as per the agreement in favour of the complainant within one month from the date of this order.
O.P.-1 is also directed to pay Rs.50,000/- to the complainant towards compensation for causing harassment and mental agony within the aforesaid period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act to get the deed of conveyance executed and registered through this Forum and in that case the complainant shall bear all the cost of registration including the service charges of the officer to be appointed by this Forum for such registration.
