Date of filing: 25/01/2019                                       

Date of Judgment: 05/01/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This consumer complaint is filed U/s. 12 of the Consumer Protection Act, 1986 by Shri Jajati Keshari Tripati against opposites parties namely 1. Sri Jayanta Deb Biswas, 2. Smt. Nibedita Pattanayak, 3. Smt. Mita Ghosh (referred as O.P.s hereinafter) alleging deficiency in rendering service on their part.

Case of the complainant in short is that O.P. No. 1 being the developer and O.P. No. 2 & 3 being the owners entered into a development agreement dated 10/03/1997 to construct a Multi Storied Building and O.P. Nos. 2 & 3 also executed a power of attorney in favour the O.P. No. 1. Subsequently the developer O.P. No. 1 entered into an agreement for sale dated 25/03/1998 with the complainant agreeing to sale a flat as described in the 2^nd schedule of agreement at a total consideration price of Rs. 4,50,000/-. Complainant paid the entire consideration price and the possession of the flat has also been handed over to the complainant by the opposite party no. 1 but the opposite parties failed and neglected to execute and register the deed of conveyance in favour of the complainant in spite of repeated request. So the present complaint has been filed by the complainant praying for directing the opposite parties to register the flat in question in favour of the complainant, and to pay compensation of Rs. 10,00,000/- for harassment.

On perusal of the records it appears that O.P. No. 1 is contesting the case by filing written version contending specifically that he has already handed over the possession of the flat in question to the complainant long before. Since the power of attorney executed by the land owners being O.P. Nos. 2 & 3 was revoked illegally, O.P. No. 1 could not execute the deed of conveyance. A title suit is also filed by the O.P. No. 1 against O.P. Nos. 2 & 3 being title suit No. 196/1999. So the complainant is not entitled to any compensation as there is no fault on the part of the O.P. No. 1. As such O.P. No. 1 has prayed for dismissal of the case against him.

O.P. Nos. 2 & 3 did not take any step, neither filed any written version in spite of sending the notice through regular process and also by way of publishing the same in a newspaper widely circulated. So the case has been heard exparte against O.P. Nos. 2 & 3.

During the course of the trial complainant has filed affidavit in chief followed by filing of questionnaire by O.P. No. 1 and reply by the complainant. Affidavit in chief is also filed by O.P. No. 1 followed by filing questionnaire by the complainant but the reply has not been filed by the O.P. No. 1. However ultimately during the argument brief note of argument has been filed by the contesting O.P. No. 1. Argument of both sides have also been heard.

So the following points require determination:-

1. Whether the opposite parties are deficient in rendering the service to the complainant?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

Both the points being inter related are taken up together for discussion. In order to substantiate his claim that he purchased the flat as per agreement entered into between the parties, complainant has filed the agreement for sale dated 25/03/1999 and also has filed the receipt showing payment of the consideration price. The execution of the agreement and that the entire consideration price of Rs. 4,50,000/- has been paid by the complainant has not been disputed and denied by the contesting O.P. No. 1.

It is also an admitted fact that the possession of the flat as per agreement dated 25/03/1998 has already been handed over to the complainant long before and the complainant is in possession of the same. The possession letter dated 15/05/1998 issued by the O.P. No. 1 to the complainant intimating him to take the possession of the flat after making full and final payment and letter dated 03/06/1998 acknowledging that the possession has already been handed over and taken by the complainant, has also been filed by the complainant. So it appears that the complainant has been in possession of the flat since 1998 as per the copy of the said letter filed by the complainant.

The only contention which has been raised by the O.P. No. 1 is that the deed of conveyance could not executed by him as the power of attorney executed in his favour was subsequently revoked by the owners i.e. O.P. Nos. 2 & 3 for which he has filed a civil suit. No document relating to the civil suit has been filed by the opposite party No. 1 in this case. However it appears from the questionnaire filed by the complainant against affidavit in chief filed by the O.P. No. 1 / developer, specific question has been put by the complainant being question Nos. 10, 11, & 12, asking the O.P. No. 1 whether deed of conveyance in favour of one another purchaser of the flat in the same building namely Swapna Sengupta was executed by him. But no reply has been filed by the O.P. developer against those questions put by the complainant. Be that as it may since apparently deed of conveyance has not been executed in favour of the complainant, he is entitled to the execution and registration of the deed in his favour. However it may be pertinent to point out that as per own document of the complainant, the possession was delivered to him in June 1998 but no documents has been filed by the complainant that he made any written communication with the opposite parties to execute and register the deed of conveyance in his favour. The present complaint has been filed nearly after 20 years of the delivery of the possession. So complainant himself sat over the matter. In such a situation, we do not find any justification to pass an order of compensation. However complainant is entitled to the litigation cost.

Hence

ORDERED

 CC/45/2019 is allowed on contest against O.P. No. 1 and exparte against O.P. Nos. 2 & 3. Opposite parties are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant as per agreement dated 25/03/1998 within two months from this date. O.P.s are also directed to pay litigation cost of Rs. 12,000/- to the complainant within the aforesaid period of two months.