Date of filing : 12.04.2018

Judgment : Dt.29.03.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Bulu Mukherjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Animesh Dutta, (2) Sri Dwijoy Ghosal, (3) Smt. Ebha Ghosal, (4) Smt. Sikha Dey, (5) Smt. Abha Dey and (6) Smt. Nibha Dey.

            Complainant’s case, in brief, is that OP No.2 and one Debendra Kr. Dey who was the predecessor in interest of OP No.2 to 6, were the owners in respect of the property being premises No.23/A, Diamond Harbour Road. They had acquired the same by way of separate gift deed dt.26.4.1991 executed by the Governor of West Bengal. By a development agreement dt.23.7.2001 coupled with execution of General Power of Attorney in favour of the OP No.1., OP, OP No.2 and the said Debendra Kumr Dey entered into a development agreement, to construct a four storied building. The Complainant thus entered into an agreement dt.29.1.2002 agreeing to purchase one flat from the OP No.1 as mentioned in the schedule B of the complaint petition at a total consideration of Rs.4,55,000/- out of which she paid Rs.90,000/- on the date of execution of the agreement and the rests to be paid part by part from time to time during the progress of the work. It was agreed that the possession of the schedule B property would be delivered within one year from the date of the execution of the agreement. The possession of the flat has been handed over to the Complainant long after the schedule date on 6.10.2010 on payment of balance of the total consideration price in full to the OP No.1. But, in spite of repeated assurances the deed of conveyance has not been executed and thus the present complaint has been filed for direction upon the OPs for execution and registration of the deed of conveyance in favour of the Complainant in respect of the schedule B property/flat, to pay damages of Rs.2,00,000/- and Rs.50,000/- as litigation cost.

            Complainant has annexed with the complaint petition copy of the Development Agreement entered into between the OP No.1 with OP No.2 and Debendra Kumar Dey, copy of the power of attorney, copy of the legal notice sent to the OPs by the Complainant through his Ld. Advocate, reply sent by the OP No.1 and the copy of the agreement entered into between the Complainant and the OP No.1.

            On perusal of the record, it appears that in spite of service of notice the OPs did not take any step and thus vide the order dt.14.9.2018 the case has been directed to proceed ex-parte against the OPs.

            So the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

Decision with reason

            Complainant has claimed that she purchased one flat by way of agreement dt.29.01.2002 at a total consideration price of Rs.4,55,000/-. According to her, she has paid the entire amount of consideration. Even though she has been delivered the possession long after the schedule date on 6.10.2010 but the deed has not been executed in her favour. In support of her claim Complainant has filed the copy of the development agreement entered into between the OP No.1 with the OP No.2 and predecessor in interest of OP No.2 to 5 and also the power of attorney executed by the owners in favour of OP No.1. Consequent to which the agreement dt.29.01.2002 has been executed in favour of the Complainant. On perusal of the reply sent by the OP No.1 in response to the notice sent by the Complainant through her Ld. Advocate, it appears that the OP No.1/Developer has claimed that the Complainant has not paid the entire consideration price and an amount of Rs.4,00,000/- for the flat is due to be paid. It is stgated therein that flat allotted to Complainant measures an area of 800 sq.ft. and not 650 sq.ft. and so Complainant is liable to pay Rs.2,00,000/- for the excess area of 150 sq.ft. and Rs.2,00,000/- is due out of consideration price of Rs.4,55,000/-. But since the case has been proceeded ex-parte there is no evidence in support of the said claim made by the OP. Moreover, there is no evidence that actual area of the flat is 800 sq.ft. Neither there is any intimation by the OP to the Complainant that though the agreement was for a flat measuring 650 sq.ft. but flat handed over to her measured 800 sq.ft.  and so she was to pay extra amount . Complainant has filed the money receipts showing the payment of entire consideration price of Rs.4,55,000/- as agreed.

            In such a situation, as the deed has not been executed in favour of the Complainant there has been deficiency in service and thus the Complainant is entitled to the relief of direction upon the OPs to execute and register the deed of conveyance. However, as the Complainant has been enjoying the property as she has been handed over the possession in 2010 itself, we do not find any justification to allow compensation as prayed.

            Hence

                                   ordered

            CC/191/2018 is allowed ex-parte against the OPs. OPs are hereby directed to execute and register the deed of conveyance in favour of the Complainant in respect of the B Schedule property as stated in the complaint petition within three months from the date of this order. They are further directed to pay Rs.10,000/- towards litigation cost within the aforesaid period of three months failing which the amount shall carry interest @8% p.a. till realization.