Dt. of filing: 30/01/2018
Dt. of Judgement- 11/10/2018
Mrs. Sashi Kala Basu, President
This is a complaint filed by (1)Sri Anirban Dey (2) Smt. Snigdha Dey and (3) Sri Aniruddha Dey alleging deficiency in service on the part of Opposite Parties namely (1) Smt. Chitra Gupta nee Das (2) Smt. Anita Roy Chowdhury (3) Smt. Aloka Das (4) Smt. Sumita Mukherjee (5) Smt. Maya Mita Maitra (6)Smt. Chandana Dutta and (7) M/s. S. D. Enterprise represented by its Proprietor Smt Susanta Das.
Brief fact of the case of the complainants is that Opposite Parties 1 to 6 entered into a development agreement with the Opposite Party no.7 on 19.02.2007 to construct a four storied building. Opposite Party Nos. 1 to 6 being the owners executed a General Power of Attorney in favour of Sri Susanta Das ( the developer ). The complainants agreed to purchase one flat being 3D on the right side Front Portion of the second floor measuring more or less 700 sq.ft. super built up area in premises no. 349/304, Netaji Subhas Chandra Bose Road, being mailing address 8/83, Netaji Nagar Colony Kolkata – 700 092 at a total consideration price of Rs. 6,75,000/- by a agreement of sale dated 24.09.2008 from the developer’s allocation. Complainants paid the entire consideration amount to the O. P. No.7 within the stipulated time and after realizing the said amount of consideration , OP no.7 delivered t he possession of the Flat as agreed in favour of the complainants and a possession letter dated 01.04.2010 was issued by the OP No.7. The names of the complainants have also been recorded as occupier before the KMC by the land owners i.e, the OP Nos. 1 to 6. But unfortunately inspite of repeated requests by the complainants for executing the deed of conveyance and to complete the registration work has not been done by the Opposite Parties. A notice was also sent by the complainants to OPs through their Ld. Advocate but in vein. So this complaint is filed by the complainants for directing the Opposite Parties to execute and register the deed of conveyance, for payment of damages of Rs.2,00,000/- and litigation cost.
Complainants have annexed with the petition of complaint copy of development agreement, Power of Attorney in favour of developer ( OP No.7), agreement to sale dated 24.09.2008, Possession letter, copy of the notice sent to Opposite Parties and reply by OP Nos. 1 to 6.
OP Nos. 1 to 6 have contested the case by filing the written version denying the allegations made in the complaint petition. It is contended by them that they were Always ready and willing to execute and register the deed of conveyance but neither the Opposite Party No.7 nor the complainants approached the owners excepting a legal notice sent in December, 2017.They have prayed for dismissal of the case with costs.
Opposite Party No.3 has also filed the written version contending inter alia that the land owners were requested to execute a fresh registered Power of Attorney in favour of the developer so that he could execute and register t he flats of the developer’s allocation to the intending purchasers but OP Nos. 1 to 6 did not pay any heed to the same.
Both the parties adduced their evidences by filing affidavit-in-chief followed by cross-examination in the form of questionnaire and reply thereto.
During the course of argument, both parties filed the brief notes of arguments . Ld. Advocate for the complainant has emphasized on the fact that expenses towards the stamp duty and registration charges have increased considerably which will have to be borne by the complainant. So they are entitled to the compensation.
Following points require determination :-
- Whether there has been deficiency in providing service on the part of the OPs ?
- Whether the complainants are entitled to the reliefs as prayed ?
Decision with reasons
Point Nos. 1 & 2 :
Both the points are taken up together for the discussions in order to avoid repetitions.
It is apparent from the materials in record that admittedly complainants entered into an agreement on 24.09.2008 to purchase a flat on the second floor, South East Side, measuring abut 700 sq.ft. super built up area ( more or less ) of the four storied building being Postal address 8/83A, Netaji Nagar, P. S. Jadavpur, Kolkata – 700 092 , from the developer’s (OP No.1)allocation. It is also an admitted fact and also as appears from the letter of possession dated 01.04.2018 that the possession of the flat in question has already been handed over to the complainants on receiving the entire consideration price. The only dispute is that the deed of conveyance in respect of the said flat has not been executed and registered in favour of the complainants. According to OP No.7, OP Nos. 1 to 6 ( owners) did not execute the registered Power of Attorney in his favour enabling him to execute and register the deed of conveyance in favour of the intending purchasers of flats from his allocation. Whereas according to OP Nos. 1 to 6 ( the owners) they have always been ready and willing to execute and register the deed of conveyance but neither complainants nor the developer approached them. So it is apparent that owners and developer are blaming each other. If the possession was delivered in April 2010, complainants were entitled for the execution and registration of the flat in their name immediately thereafter but the same has not been and as a result, complainants had to take the recourse of this Forum. So there has been deficiency in providing service by OPs.
It is stated by the Opposite Parties owners in the written version that since almost all the flats on the part of developers allocation had already been executed and registered by the OP Nos. 1 to 6 without any dispute at all, question of execution and registration of Power of Attorney in faovur of the developer did not arise but they were not approached. These statement of the OP Nos. 1 to 6 the that they were not approached cannot be accepted because inspite of sending a legal notice, no step was taken by the Opposite Parties for registration of the deed of conveyance. So the complainants are entitled to an order directing the OPs to execute and registration the deed of conveyance and compensation for harassment and also as they will have to bear the expenses towards the stamp duty and registration fee as per today’s market value. They are also entitled to the litigation cost as they were compelled to file this case.
These points are thus answered accordingly.
Hence,
ORDERED
C.C. case No. 38 of 2018 is allowed on contest against the Opposite Parties. Opposite Parties are directed to execute and register the deed of conveyance in respect of the flat described in the schedule of the petition of complaint in the name of the complainants within three months from the date of this order. OPs are further directed to pay Rs. 70,000/- as compensation and litigation cost of Rs.10,000/- to the complainants within the aforesaid period of three months.
