Dt. of filing : 03/06/2019
Dt. of Judgement : 15/02/2021
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Guru Charan Basak under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) Smt. Bandana Halder, 2) Sri Kanchan Halder, 3) Smt. Chandana Banerjee, 4) M/s. RAK Associates, 5) Sri Kaushik Chowdhury, 6) Sri Amit Dutta and 7) Sri Tamal Nag alleging deficiency in service on their part.
Case of the Complainant in short is that Opposite Party Nos. 1 to 3 are the owners of the property and Opposite Party No.4 is the developer being represented by its partners i.e. Opposite Party Nos.5 to 7 entered into an agreement to develop the property described in the schedule of the said development agreement. Opposite Party No.1 to 3 also executed Power of Attorney in favour of the Opposite Party No.5 to 7. Subsequently Opposite Parties entered into an agreement with the Complainant on 15/11/2005 to sell the flat as described in the schedule therein on payment of consideration of Rs.7,20,000/-. Complainant has paid the entire consideration and the possession of the flat has also been handed over to the Complainant by Opposite Party No.4 through its partners being Opposite Party Nos.5 to 7. But inspite of the repeated request Opposite Parties have not executed the Deed of Conveyance in favour of the Complainants. So present complaint has been filed by the Complainant praying for directing the Opposite Parties to execute and register the Deed of Conveyance in favour of the Complainant and to direct the Opposite Parties to pay compensation of Rs.2,00,000/-.
Complainant has filed the copy of the agreement dated 15/11/2005 entered into between the parties, possession letter dated 12/10/2006 and also a letter written by the Complainant to the Branch Manager, Central Bank requesting to return the original memorandum of agreement.
On perusal of the record it appears inspite of the service of notice, no step was taken by Opposite Party Nos.1 to 6 and thus the case proceeded ex-parte against them vide order dated 29/8/2019. Opposite Party No.7 though had appeared on receiving the notice but did not take any step subsequently. He neither filed any written version. So the case was directed to be proceeded ex-parte also against Opposite Party No.7 vide order dated 12/9/2019.
During the course of the trial, Complainant by filing a petition prayed for treating the complaint as affidavit-in-chief on behalf of the Complainant, which was considered and allowed.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayer for?
Decision with reasons
Both the points are taken up together for comprehensive discussions:
Complainant has claimed that by an agreement dated 15/11/2005, Opposite Parties agreed to sell the flat described in the schedule therein, on consideration of Rs.7,20,000/-. He has paid the entire consideration price and subsequently possession of the flat has also been handed over to him. But the Opposite Parties have not executed the Deed of Conveyance. In support of his claim, Complainant has filed a copy of the agreement wherefrom it appears that the agreement was executed by the Opposite Party Nos.5 to 7 as Constituted Attorney of Opposite Party Nos.1 to 3/owners and also as the partners of the developer firm i.e. Opposite Party No.4. Complainant though has not filed any Money Receipt showing the payment of Rs.7,20,000/- but from the possession letter dated 12/10/2006, it is evident that the possession was delivered to the Complainant by Opposite Party Nos.5 to 7 on receiving full and final payment towards consideration price. In such a situation as inspite of making full payment, even though possession has been delivered but the Deed of Conveyance has not been executed in favour of the Complainant, Complainant is entitled to the execution, registration of the deed in respect of the flat as per agreement and also entitled to compensation as the Complainant will have to bear the cost towards registration of the deed as per present market value. So an amount of Rs.50,000/- will be justified as compensation.
Hence,
ORDERED
CC/267/2019 is allowed ex-parte.
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 dated 15/11/2005 within 2(Two) months from this date. They are further directed to pay Rs.50,000/- as compensation within the aforesaid period of 2(Two) months.
