Date of Filing: 22/08/2023
Date of Judgment: 03/12/2024
Sri Manish Deb, Hon’ble Member
That the fact of the case is that the complainant in his search of a suitable accommodation with an intention to purchase a residential flat along with a car parking space, met the OP No.1 & OP No.2 being the partners of the partnership firm in the name and style M/s. Millennium India Construction carrying on business for construction of building and was developing the property.
The predecessors in interest of OP No.3 to OP No.6 with their intention to develop the property they entered into an Agreement for development of the said property with OP No.1 & OP No.2 for construction of multi storied buildings on 28.08.2006 under the terms and conditions specifically mentioned therein.
The predecessors in interest of OP No.3 to OP No.6 herein also executed a General Power of Attorney authorizing the partners of the partnership firm, the OP No.1 & OP No.2 herein to develop the said property and to do all sorts of inevitable function and legal acts and formalities and to execute and register all necessary deeds and documents in respect of the flats units and all other saleable areas under the developer’s allocation.
Subsequently the husband of OP No.3 died intestate on 07.09.2016 leaving OP4 & OP5 being the sons and OP 6 daughter, as his legal heirs and successors. Thereafter on 02.08.2021 Anomitra Chakraborty died intestate and being unmarried during his lifetime, the OP 4 to OP6 stepped in as his legal heirs.
Thereafter on 18.07.2022 the OP No.3 to OP No.6 being the land owners made and executed fresh development agreement with development power of attorney that is registered before the District Sub Registrar, South 24- Pgs Alipore for further construction of multi storied building over the property.
The complainant in 2008 being satisfied with the papers and documents supplied by the OP No.1 & OP No.2 being satisfied agreed to purchase the self contained residential flat located on south west facing at first floor of the (G+IV) storied building and one car parking space at the ground floor of the said building situated at 237 N S C Bose Road, Jadavpur, Kolkata 700 047 under the jurisdiction of the District South 24 Pgs and entered into an agreement for sale on 05.07.2008 under the terms and conditions specifically mentioned therein against valuable consideration of Rs.21,75,000/-by making payment of earnest money mentioned therein.
Later the developer informed the purchaser that the area of the said flat to be purchased by the complainant shall be increased from 1440 sq.ft. super built up area to 1700 sq.ft. super built up area together with undivided proportionate share of land from the developer’s allocation and OP No. 1 & 2 requested the complainant to pay the enhanced consideration amount of Rs.25,00,000/-instead of Rs.21,75,000/and the complainant agreed to pay the said enhanced consideration money against the said flat and the car parking space.
The complainant therefore in order to discharge his duties, rights and obligations started to pay the said total consideration by instalments through account payee cheques and also through RTGS part by part complainant paid Rs. 25,00,000/- to the OP No.1 & OP No.2 against proper money receipts.
On 19.04.2017 the developer handed over photocopy of an assessment slip issued by ADSR Alipore to the complainant for the purpose of registration of the deed of conveyance and requested the complainant to remit the total sum of Rs.5,85,000/- towards stamp duty , registration fees and all other incidental charges including cost of preparation of the deed of conveyance, site plans, advocate fees for drafting of sale deed etc.
The complainant on the very next day i.e. on 20.04.2017 paid the said sum of Rs.5,85,000/- only to the developer through RTGS, the receipt of which was duly acknowledged by the developer.
The complainant in total paid to the OP1 and OP2 a total sum of Rs.29, 85,000/-.
The complainant after fulfilment of his obligations in all respects, requested the OP No.1 and OP No.2 and the predecessors in interest of the OP No.3 to OP No.6 to extend their goods hands of cooperation to transfer or bestow right of ownership of the said flat and the car parking space in favour of the complainant by execution and registration of the necessary deed of conveyance and deliver the peaceful vacant possession of the said flat and the car parking space along with handing over ‘letter of possession’ and copy of completion certificate after procuring the same from the KMC.
The OP No.1 & OP No.2 initially turned deaf ears to the appeal of the complainant and subsequently the opposite parties adopted dilatory tactics to cajole the complainant putting focus on the causes of delay rather failures to honour their own commitment to handover possession with possession letter and completion of execution and registration of the deed of conveyance to transfer the right of ownership of the flat & car parking space in favour of the complainant. The OP No.1 & OP No.2 assured the complainant that immediately after overcoming the obstacles they would discharge their service in all respects to satisfy the complainant.
The complainant believing the statements of the opposite parties to wait with the expectation that OP No.1 & OP No.2 would surely do the needful to deliver peaceful possession of the said flat and the car parking space as per their assurances followed by registration of the necessary deed of conveyance in favour of the complainant.
Despite several persuasions on the part of the complainant the developer OP No.1 & OP No.2 even after receiving the almost all consideration money from the complainant they failed and neglected to complete the aforesaid transaction by execution and registration of the deed of conveyance and delivery of the possession of the flat and car parking space for the reasons best known to the opposite parties.
The complainant thereafter tried to contact the developers but they were unreachable. Then the complainant paid a visit to the suit property but he was shocked to know that all the flats have already been sold and the possession have been handed over to third party/purchaser.
The complainant, in fact, being disgusted with the wrongful acts of the opposite parties, issued a legal notice dated 03.05.2023 through his Advocate and requested the opposite parties to effectuate the contents of the said agreement.
The OP No.1 & OP No.2 despite receiving the notice dated 03.05.2023 issued by the Advocate did not proceed for any remedial step to honour the said notice.
That the complainant on 02.07.2023 went to meet the developers at their office, but found it is closed. Thereafter he visited the site and was informed by the caretaker that all the flats are sold to sundry purchasers and there is no vacant flat at present.
That the complainant through his advocates made searches in the registry offices and found numerous deeds of conveyances of the said property and also got information about the execution and registration of new development agreement dated 18.07.2022 after demise of the original landowners.
The developers OP No.1 & OP No.2 failed and neglected to inform the complainant of such demise of the original landowners to get the current picture about devolution of title, the complainant obtained a certified copy of deed of conveyance dated 14.03.2023 executed by the opposite parties belonging to a similar sized property in the third floor of the same building being the deed registered in the office of DSR-IV, Alipore in the District South 24 Parganas.
The opposite parties wilfully neglected to discharge their responsibilities and liabilities. It is needless to say that owing to gross negligence on the part of the opposite parties to perform their responsibilities and liabilities, the complainant has been suffering from huge pecuniary loss and mental agony on account of deficient service on the part of the opposite parties. The OP No.1 & OP No.2 doubtlessly have applied an art of running an unfair trade practice to cheat or deceit the consumers including the complainant.
That the deceitful activities of the opposite parties have resulted in material loss to the complainant as well as mental agony and harassment.
Therefore, the complainant prays before this Hon’ble Commission:
For an order for directing the opposite parties to execute and register the deed of conveyance in favour of the complainant in respect of the flat and car parking space upon receipt of the balance consideration of Rs.1,00,000/- failing which the deed of conveyance be executed and registered through this commission along with further direction to handover peaceful possession of the said flat along with car parking space by issuance of possession certificate in favour of the complainant.
Alternatively prays for necessary direction upon the OP No.1 & OP No.2 to make refund of advance amount of Rs.29, 85,000/- along interest @12% p.a. since 20.04.2017, to pass an order directing the OPs to pay a sum of Rs.10,00,000/-towards compensation to recoup the loss and damage sustained by the complainant on account of plunging harassment, mental agony deliberately together with the cost of the proceeding of Rs.50, 000/-.
The opposite parties are not contest the case also not filed written version and thus the case proceeded ex parte against all opposite parties wherein they have not denied any deficiency in service on their part thus we are in view that it is only the inordinate delay on the part of the all opposite parties in execution and registration, delivery of possession of flat in favour of the complainant.
POINTS FOR DECISION are
1. Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
2. Whether the complainant is within limitation under C.P. Act, 2019.
3. Whether the commission has the jurisdiction to decide the present complainant.
4. Is the case is maintainable or not.
5. Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant is fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by not executing and registration of the deed of conveyance of the flat, car parking space and deliver of the possession of the same.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged by the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
DISCUSSIONS AND FINDINGS
The complainant has filed evidence, and also forwarded Brief Note of Argument at the time of advancing oral argument in the case.
We have applied our mind and gone though the material on record together with the Annexure /documents filed by the complainant
The complainant entered into the agreement for sale with opposite parties Since OPs agreed to execute the deed of sale and delivery of possession of the flat and car parking space on receipt of total consideration.
Hence we find the inordinate delay on the part of the opposite parties in respect of Execution and registration of the flat and car parking space and delivery of possession of the same in favour of the complainant on receipt of total consideration.
Going through the agreement of sale, we find that the said flat and car parking space should have been completed in full and delivered it to the complainant together with execution and registration deed of conveyance latest by the July, 2019. But till the date 3rd August , 2022, the opposite parties have shows no intention to execute & register the deed of conveyance and deliver the possession of the flat in favour of the complainant, it is a clear cut delay of 24 months a long period .
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
That it was the duty of the OP1 & OP2 to handover the vacant possession of the said flat and also execute and/or register the deed of conveyance in favour of the complainant but instead of handing over the vacant possession of the said flat and registering the said deed of conveyance, the OP1 & OP2 intentionally avoided the complainant which also amounts to deficiency in service.
That the inaction on the part of the all opposite parties in this regard are absolutely illegal, unjust and malafide and deliberate violation to discharge their duties, liabilities and obligation which is undoubtedly deficiency in service and unfair trade practice on the part of the opposite parties.
That the deceitful activities of the opposite parties have resulted in material loss to the complainant as well as mental agony and harassment. The opposite parties cannot escape from their part of obligations.
The opposite parties are legally bound to discharge their duties and liabilities to provide service to the complainant in pursuance with their black and white undertakings to effectuate the agreement for sale by way of execution and registration of sale deed to transfer/bestow the right of ownership of the flat apart from delivery of possession with the letter of possession.
The opposite parties wilfully neglected to discharge their responsibilities and liabilities. it is needless to mentioned that owing to gross negligence on the part of the opposite parties to perform their above stated duties and obligations, the complainant has been suffering from huge pecuniary loss and mental agony on account of deficient service on the part of the opposite parties and opposite parties No. 1 & 2 doubtlessly have acquired an art of running an unfair trade practice to cheat or deceit the consumers.
Hence the complainant is entitled to get delivery of the possession of the flat and car parking space from the OP No.1 & OP No.2 together with execution and registration deed of conveyance & delivery of possession of the flat from the all opposite parties and compensation for harassment and mental agony and litigation cost from the OP No.1 & OP No.2.
The opposite parties cannot escape from their part of obligations in fulfilling the proposed transaction after receiving the entire consideration and literally there is no reasonable ground of defence available to the opposite parties to eschew from their misdeeds.
That the complainant is entitled to get relief as prayed for against the unfair trade practice and deficiency of service on the part of the opposite parties joint and/or severally to swindle the complainant and the opposite parties are disentitled to get any sort of protection against the instant case against their unlawful activities as same as impostor.
Hence it is
ORDERED
CC No. 384/2023 is allowed ex parte against OPs.
1. All opposite parties are directed to execute and register the deed of conveyance in respect to the flat and Car Parking Space mentioned in the sale agreement as well as mentioned in the complaint petition filed by complainant in favour of the complainant within 60 days from the date of this order alternatively refund the entire advance money and registration fees and stamp duty total of Rs.29,85,000/- with 12 % interest per annum from 20.04.2017 by the opposite parties No. 1 & 2 to the complainants within 60 days from the date of this order.
2. Opposite parties No. 1 & 2 are directed to deliver possession of the scheduled flat in complete and habitable condition by way of hand over the key of the flat within 60 days from the date of this order.
3. Opposite parties No. 1 & 2 are to pay compensation of Rs. 2, 50,000/- to the complainant within 60 days from the date of this order.
4. Opposite parties No. 1 & 2 are also directed to pay Rs. 15,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
