Date of Filing: 10.09.2021

Date of Judgment: 05.01.2023

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member

The instant Complaint under section 35 of the Consumer Protection Act 2019 has been filed by the Complainants namely Malobika Sarkar & Ritisha Sarkar against the opposite parties and their predecessor-in interest being the Landowner/Opposite Party No.1 o 3 and Opposite Party No. 4 to 9 being the Developer/Opposite Part, on the allegation of deficiency in service on the part of the Opposite Parties in a dispute of Housing Construction

The complainants’ case in brief is that the complainants and their predecessor-in-interest entered into an Agreement for Sale dated 27/09/2016 for purchase of  a residential flat with the Opposite Parties Landowners and the Developers and the predecessor-in-interest of the opposite party herein jointly mentioned as the Opposite Parties in the Agreement for sale and upon payment of the full consideration money by the complainants in terms of the Agreement for sale the Op/Developer completed construction as per Development Agreement dtd. 27/09/2016 and handed over possession of the subject flat from the developer’s allocation to the complainants and issued possession letter on 05/06/2017 to the complainants and since then the complainants are in occupation of the subject flat and thereafter the opposite parties executed a Deed of Declaration on 25/05/2017 which was notarised on 05/06/2017, wherein the landowners and developers, undertake and declare that they shall execute and register the Deed of Conveyance of the said flat in favour of the complainants and also agree to be present in the Registration office for execution of the Deed of Conveyance as and when the complainants call for. Inspite of that the developer /opposite party failed and neglected to execute and register the Deed of Conveyance in favour of the complainants in terms of the said Agreement for Sale dated 27/09/2016 and Deed of Declaration dated 05/06/2017.On several occasion the complainants verbally requested the developer /opposite party to execute and register the deed of conveyance in favour of the complainants as per the Agreement for Sale dated 27/09/2016 and Deed of Declaration dated 05/06/2017 but the opposite party failed to do so. Thereafter the complainants through their Ld. Advocate sent a legal notice by speed post to the opposite party dated 14/08/2021 asking them to execute and register the deed of conveyance in favour of the complainants as per the Agreement for Sale dated 27/09/2016 and Deed of Declaration dated 05/06/2017 within 15 days from the date of receipt of the said notice. That inspite of receipt of the said notice the opposite parties failed and neglected to execute and register the deed of the conveyance of the flat in question in favour of the complainant. Hence the complainants approach this Commission with prayer for several reliefs viz,- 1.Directing the opposite parties jointly and severally to execute and register the deed of conveyance in favour of the complainants as per the Agreement for Sale dated 27/09/2016.and  2.ALTERNATIVELY, pass an order to execute and register the deed of conveyance in favour of the complainants as per the Agreement for Sale dated 27/09/2016 through machinery of this Ld. Commission. 3.directing the opposite parties jointly and severally to pay compensation of Rs. 1,00,000/- toward mental pain and agony and Rs. 50,000/- as litigation cost. 4.Such other order or orders as the complainants are entitled to law and equity.

The complainants filed one application for treating their complaint petition as their evidence At the time of final hearing brief notes of argument was filed on behalf of the complainants

On perusal of the case record it appears that inspite of service of notice step was not taken by the opposite parties and thus vide order dated 29.4.2022 the case was directed to be proceeded exparte.

So the only points required determination is whether the complainants are entitled to the relief as prayed for.

Decision with reason

In support of their claim the complainants have filed an Agreement for Sale dated 27/09/2016 and Deed of Declaration dated 05/06/2017, entered into by and between the opposite parties being the Developer & the land owners  wherein it has been specifically mentioned that the landowners and developers, undertake and declare that they shall execute and register the Deed of Conveyance of the said flat in favour of the complainants and also agree to be present in the Registration office for execution of the Deed of Conveyance as and when the complainants calls for. 

It is also not in dispute that on the strength of Agreement for Sale dated 27/09/2016 and Deed of Declaration dated 05/06/2017, coupled with the Power of Attorney dated 31st November,2015 entered into by and between the parties mentioned therein for sale of one self- contained flat measuring about 400 sq.ft. Super built-up area on the second  floor at premises no. 4/24A, Rajendra Prasad Colony, S.P. No. 33/1, E.P. No 214A, P.S. Jadavpur, Kolkata 700033, part of K.M.C premises no. 48/4, Graham Road, under ward no. 94, at a consideration of Rs. 8,56,000/-, and upon payment of the full consideration money by the complainants as mentioned in the Agreement for sale the OP/Developer upon completion of the construction duly handed over the possession of the subject flat from the developer’s allocation to the complainants and vide. possession letter on 05/06/2017 to the complainants and after getting possession of the subject flat  the complainants have been residing  in the subject flat since then. All these are admitted fact.

Now the complainants' main allegation against the Developer / landowner is for non-execution and registration of Deed of Conveyance.

It is well settled proposition of law that after accepting the entire consideration amount it is the bounden duty on the part of the Developer/Landowner to register and execute the sale deed in favour of the complainants. Admittedly the OP/Developers have handed over possession of the subject flat to the complainant. Therefore the specific allegation against the opposite parties that they did not execute and register the deed of conveyance in favour of the complainants. Therefore the complainants are entitled to the relief only to the extent of registration and execution of Deed of Conveyance. As the OPs. are refrained from challenging the complaint so there is no contrary material to counter or rebut the claim of the complainants. Hence the complainants are entitled to get relief as prayed for.

 In our view a direction upon the ops to execute and  register the Deed of Conveyance in favour of the complainants is justified.

Considering the facts and circumstances of the case, we think  payment of compensation @ 10% p.a. of total consideration amount in favour of the complainants will meet the ends of justice. As the situation compelled the complainants to file the instant case, hence she is entitled to litigation cost of Rs. 5000/- from the opposite parties jointly.

Hence,

                ORDERED

CC/428/2021 is allowed exparte against the Ops with the   following direction:

i)The Ops are jointly and severally directed to execute and register the Deed of Conveyance in respect of the flat as mentioned in the Agreement for Sale in favour of the complainants within 30 days from the date, in default the complainants are at liberty to approach the Commission for execution and registration through the machinery of this Commission.

ii) The Opposite Parties no. 4 to 9/ Developer is directed to pay compensation in the form of interest@10% p.a.over the agreed consideration amount in favour of complainants within 30 days from date ,in default, the amount shall carry interest @9% p.a. from the date till its realisition.

iii) The Opposite Parties No,4 to 9/ Developer is directed to pay litigation cost of Rs.5000/- to the complainants.