Date of Filing :    24 November, 2021

Date of Final Order    :   17 February, 2023

Mr. Dhiraj Kumar Dey,  Hon’ble Member.

            The instant case comes forth when Sri Bijoy Kumar Singha, on behalf of the Complainants, filed on 24^th November, 2021 a complaint U/S 35 of the Consumer Protection Act, 2019, hereinafter called the said Act, against 1) Smt. Minati Saha,  2) Sri Atanu Saha,  3) Miss Paheli Saha,  4) Sri Gopal Das and 5) Smt. Bharati  Singha (herein after called as Opposite Parties or O. Ps.) alleging deficiency in service on the part of the O. Ps.

            Succinctly put, the complainant’s case, in hand, is that the Complainants met with one Sri Pranballav Saha and the O. P. Nos. 4 & 5 above named intending to purchase a self contained flat at the ground floor measuring 750 sq. ft. super built up  area of a G + 2 storied building which was being constructed by the O. P. 4 & 5 at the premises measuring 2 Cottah 14 Chittacks 25 sq. ft. at 22E, Biren Roy Road (East), now  Raja Ram Mohan Roy Road, P. S. – Thakurpukur, Kolkata – 700 008.  The owner of this premises was Sri Pranballav Saha and the O. P. 4 & 5 were the Developer and partners of a partnership farm named as M/s. Nayana Nirman Udyog.  The complainants/purchasers then made an Agreement for Sale on 14/04/1998 with Sri Pranballav Saha and the O. P. 4 & 5 for purchasing the subject flat for a total consideration of Rs.5,00,000/- and paid Rs.1,00,000/- to the O. P. 4 & 5 as part payment during execution of this agreement.  Thereafter the complainants/ purchasers paid the total consideration amount to the O. P. 4 & 5 and the O. P. 4 & 5 handed over the possession of the flat to them.  Sri Pranballav Saha died intestate leaving behind his wife Smt. Minati Saha, his son Sri Atanu Saha and his daughter Miss Paheli Saha, the O. P. Nos. 1, 2 & 3 stated herein above, as his legal heirs and successors.  Thereafter the O. Ps. failed to execute and register the Deed of Conveyance in respect of the subject flat as was declared in the sale agreement despite several requests were made by the complainants.  Ultimately they sent a notice on 18/08/2021 through their Ld. Advocate to all the O. Ps. requesting them to execute and register the Deed.  But this notice was also yielded no result for which they finally filed this instant complaint praying to direct the O. Ps. for execution and register the Deed of Conveyance, to direct the O. Ps. to pay a compensation of Rs.3,00,000/-, a litigation cost of Rs.1,00,000/- and to pass such other orders as this commission may deem fit and proper.

            Complainant filed copies of Agreement for Sale, Development Agreement between the owner and Developer, two receipts of payments, possession letter, and notice sent to the O. Ps. as annexure to his complaint petition.

            Records reveal that after admitting the complaint, notices were served upon all the O. Ps. to attend this Commission and to contest the complaint but none appeared and the case proceeded ex parte.  Complaint then filed their Affidavit-In-Chief and did not file any brief notes of arguments.  This Commission then comes to issue final order.

            Now, we are in a juncture to consider the following points before concluding for final decision:

1. Whether the complainants are consumers to the O. Ps. as defined in the Act?
2. Whether the O. Ps. acts caused deficiency in rendering the promised service to the complainants?

3. Whether the complainants are entitled to get relief as prayed for?

Let us discuss these points one by one to come to a conclusion.

Decision with reasons

            1.  The material fact of the complaint states that the Complainants, on 14/04/1998, entered into an Agreement for Sale with the owner Sri Pranballav Saha and the vendors/developers i. e, the O. P. 4 & 5, intending to purchase a flat at the ground floor measuring 750 sq. ft. super built up area together with common facilities for a total consideration of Rs.5,00,000/- and paid Rs.1,00,000/- on that date.  The subject flat is in the G + 2 building which was being constructed by the Developers, the O. Ps. 4 & 5 herein above. This agreement was signed by the Owner, Sri Pranballav Saha, since deceased, Sri Gopal Das and Smt. Bharati Singha as the Vendors/Developers and all of them constituting ONE PART and Sri Bijoy Kumar Singha and Smt. Kalpana Singha as the Purchasers/OTHER PART. Later the purchasers/complainants paid the total consideration and consequently got possession of the subject flat. These indicate that the purchasers/complainants are the consumers to the Owner and Vendors/Developers as defined in the Consumer Protection Act, 2019 under Section 2(7)(ii).

            2.  Now we consider the point whether any deficiency in rendering assured service to the purchasers/complainants has been occurred or not from the part of the O. Ps.  Let us begin with the Notarised Development Agreement made on 14/04/1997 between the Owner, namely Sri Pranballav Saha, since deceased, and the Construction Contractor/Developer namely Nayana Nirman Udyog, a partnership firm represented by its partners Sri Gopal Das and Smt. Bharati Singha.  Be it mentioned here that in this Development Agreement the name of the firm is written as Nayana Nirman Udyog Co. whereas in the receipts given to the purchasers against payments it is written as Nayana Nirman Udyog and ‘Co’ is not existing there, even in the possession letter the letterhead bears ‘Nayana Nirman Udyog’.  In the Agreement for Sale the name of the Developer Company has not been written.  However, in the development agreement it was decided that the Developers were being given permission, along with Power of Attorney, to construct a G + 2 storied building at the premises, as described in the Schedule “A”, being premises no. 22E, Raja Ram Mohan Roy Road [previously Biren Roy Road (East)], Thakurpukur, Kolkata – 700 008, comprised in Mouza Muradpur, Paragana Magura, Touzi No. 74-77 & 82, J.L. No. 13, R.S. No. 192, Kh. No. 675 & 676, Dag No. 126/728, P. S. Thakurpukur, District 24-Paraganas (South).  The area of the land is 2 Cottah 14 Chittaks 25 Sq. Ft. It is mentioned in this agreement that the Builders will get Sanctioned building plan from KMC authority and the building will be completed within 24 months from the date of obtaining Sanctioned plan from the KMC authority.  It is also declared in this agreement the Owners allocation and the Developers allocation will be in the ratio 30 : 40, and it is mentioned in agreement that: “Subject to the Developer delivering the owner minimum 1000 sq. ft. Carpet area on the constructed  building in the 2^nd floor…”.  So, it is clear that the ground floor and the first floor of the building is the Developers allocation from which the purchasers/complainants purchased the subject flat.  On 20/12/1999 Sri Gopal Das, one of the partners of the developer firm, issued Possession Letter to the complainants wherefrom it appears that the complainants are in possession of the flat and the complainants has stated this fact in their complaint.  But the complainants alleged that the required execution and registration of the Deed in respect of their flat could not be completed despite their several efforts.  It is a settled principal that until and unless the Deed is not executed and possession is not given cause of action still persist and there is no time bar, for this Commission, under the Act, to deal with the complaint arising out of such non-compliance as promised by the parties.  It is stated in the complaint that the complainant paid the entire consideration and consequently possession letter was issued by the Developer.  As the Deed of Conveyance has not been executed by the developer, so there is definitely a deficiency in service occurred by the Developer and the Owner is also responsible for such deficiency.  As the Owner, namely Sri Prangopal Saha, died before such execution so, his legal heirs, i.e. the O. P. Nos. 1 to 3 herein above, cannot avoid their responsibility in executing the Deed.  So, in conclusion, we see that there occurred a deficiency in rendering proper service to the complainants by the O. Ps. for which the complainants have every right to seek relief under the Act.

            3.  Now, it is established that complainants are entitled to get relief.  In this stage, when we go through the complaint petition, we find that the time of death of the Owner, Sri Pranballav Saha, has not been mentioned by the complainants.  It may be assumed that Sri Pranballav Saha was alive when the building was completed and in the possession letter, given to the complainants, the Developer stated that the building was complete.  It is not clear that whether the complainants have made sufficient efforts to get their flat be registered in their favour after taking possession of the flat. It is also not clear that after the demise of the owner what is the fate of the development agreement. Nevertheless, the owner and the developer cannot avoid their responsibilities for executing the Deed of Conveyance in respect of the sold out flat.  The complainant stated in the complaint that they sent a notice through their Advocate to all the O. Ps. on 18/08/2021 whereas possession letter was issued on 20/12/1999. It is very surprising that the complainants took almost long 22 years after getting possession to send legal notice to the O. Ps requesting them to execute the Deed and thereafter they filed this instant complaint. Since the O. Ps. have not contested the case, so there is no contrary material to counter or rebut the claim of the complainants.

            However, as there is a continuous cause of action for not executing the Deed, this Commission feels that an order is to be given to the O. Ps. directing them to execute the Deed at the purchasers/complainants cost.  A compensation of Rs.30,000/-, to be paid by the O. P. 4 & 5, might be justified for such delay caused by the Developers and a litigation cost of Rs.10,000/- to be given to the complainants by the O. Ps. as the complainants are compelled to put the complaint before this Commission.

Hence,

            it is

ORDERED

            That the complaint Case being No. CC/567/2021 is allowed ex-parte against O. P. Nos. 1 to 5.

            All the O. Ps. are directed to execute and register the Deed of Conveyance in respect to the subject flat according the Agreement for Sale dated 14/04/1998, cost to be borne by the Complainants.

The Opposite Party Nos. 4 & 5 are directed to pay jointly and severely Rs.30,000/- to the complainants as compensation. 

The O. P. Nos. 1 to 3 are directed to pay jointly Rs.3,000/- and the O. P. Nos. 4 & 5  to pay jointly and severely Rs.7,000/- as litigation cost to the Complainants.

All these directions should be complied within 60 days from the date of this order.