Dt. of filing- 16/11/2017
Dt. of Judgement- 14/11/2018
Mrs. Sashi Kala Basu, President.
This is a complaint filed u/s. 12 of Consumer Protection Act, 1986 by the complainant namely Smt. Sipra Nath alias Shipra Nath against OPs namely Manik Lal Ghosh and Vivek Biswas alleging deficiency in service on their part.
The case of the complainant in short is that OP No.1 is the owner in respect of the land measuring 1 cottaha 3 chittaks 42 sq.ft. together with an old structure standing on E/P 91, S.P. No. 125, C.S. Plot No.786 (P) No. 219, Mouza- Arakpur within KMC Ward No. 93, Premises No. 82/18, Prince Gulam Hossain Shah Road. The OP No. 1, the owner with a view to develop the said property entered into a development agreement with the OP No.2. The O.P. 2 thereafter entered into an agreement for sale with the complainant on 20.06.2013 whereby developer agreed to sell a self-contained flat being No.6 on the 3rd floor measuring super built up area of 650 sq.ft. on a total consideration of Rs. 14,62,000/- only. Complainant paid the full consideration amount as per terms of the agreement for sale. Money receipts were issued by the developer on receipt of the consideration amount. Thereafter, developer/OP No.2 delivered the possession of the aforesaid flat on 26.09.2013 in favour of the complainant but no deed has been executed as per the terms stipulated in the agreement for sale dated 20.06.2013 . Since no deed of conveyance was executed in spite of repeated requests, on 25.09.2017, complainant himself sent draft copy of deed of conveyance by speed post to the OP No.2 but all in vein. Thus the present complaint is filed for an order directing the OPs to execute and register the deed of conveyance in favour of the complainant in respect of the schedule – B property mentioned in the petition of complaint and to pay compensation of Rs. 2,50,000/- and litigation cost of Rs. 25,000/-.
The complaint petition is contested by the OP No.1 by filing a W.V. denying the material allegation made against him contending iner-alia that the property mentioned in schedule – A is undivided property between the OP No.1 and his two brothers and also the legal heirs of one another deceased brother. So, due to the embargo registration of the flat could not be done. The OP has thus prayed for dismissal of the complaint petition.
OP No.2 has also contested the case by filing W.V. denying allegation made against him contending inter alia that he had developed the property as per the development agreement and was given the Power of Attorney by the OP No.1 to sell his portion. The possession has also been handed over to the flat owners. But as there is some legal embargo, the registration could not be done. Thus OP No.2 has also prayed for dismissal of the complaint case.
Along with the petition of complaint, complainant has annexed the documents such as agreement for sale entered into between the parties on 20.06.2013. Money receipts, possession letter dated 26.09.2013, a letter dated 25.09.2017 requesting to execute and register the said flat and copy of CESC Bills.
In course of the evidence, both the parties filed their respective affidavit-in-chief followed by cross-examination in the form of questionnaire and reply therewith.
The written notes of argument has been filed by the complainant and by the OP No.2.
So, the following points require determination :-
- Whether there has been any deficiency in services on the part of the OPs.
- Whether the complainant is entitled to any relief as prayed for.
Decision with reasons
Point Nos. 1 & 2 : Both these points are taken up together for discussion for the sake of convenience and in order to avoid repeatation. From the agreement for sale, filed by the complainant, it is apparent that the OP No.2 entered into an agreement to sell the flat described in schedule – B of the agreement, to the complainant. It is also evident that the total consideration amount was Rs. 14,65,000/-. From the Written versions filed by the OP No.1 as well as OP No.2, there remains no dispute that a development agreement was entered into between the OP No.1 ( the owner) and OP No.2 ( the developer ) to develop the property mentioned in schedule –A of the agreement and to raise the multi-storied building. It is also not in dispute that on receipt of entire consideration amount, possession of the flat has been handed over to the complainant. Complainant has also filed the receipts showing the payment of the consideration amount. In order to show, she is in possession of the property, complainant has also filed copy of the electric bills, the possession letter dated 26.09.2013 issued by the developer which shows that the possession was delivered to complainant in the year 2013. So as per the agreement, complainant is entitled to execution and registration of the deed of conveyance in her favour. The only dispute which has been raised by both the OPs in their W.V. is that even though they are ready and willing to execute the deed of conveyance, but due to legal embargo, they are unable to do so. According to the OPs, property described in the schedule – A is owned by the OP No.1 and his two brothers as well as the legal heirs of one deceased brother. No development agreement entered into between the OP Nos.1 and 2 is filed wherefrom it would have been evident whether there is any mention about the property being an undivided property. It is somehow strange that the multi-storied building has been raised without any objection from any corner i..e. the said co-owner and even the possession of the flats have been delivered to the different flat owners by the OPs. So, the fact that the property was undivided property has been suppressed by the OPs. It is true that complainant before purchase of the property should have made searching in respect of the title and ownership of the property but in the agreement of sale filed in this case and entered into by and between the complainant and the developer who was the Power of Attorney holder of the OP No.1, nothing is mentioned in this regard. Apart of this, no document has been filed by OPs, in order to substantiate the contention that the property is an undivided property. In such a situation , as the OP No.2 has not complied the term and conditions in the agreement of sale between him and the complainant, there has been a deficiency in service on the part of the OPs and thus the complainant is entitled to the relief of execution and registration of deed of conveyance. However, on consideration of the facts and circumstances in this case, no compensation is awarded.
These points are thus answered accordingly.
Hence,
Ordered
CC/654/2017 is allowed in part on contest against the OPs . The OPs are directed to execute and register the deed of conveyance in respect of the flat mentioned in schedule – B of the complaint petition, in the name of the complainant within three months from the date of this order. They are further directed to pay Rs. 20,000/- as litigation cost within the aforesaid period failing which it shall carry interest @ 7% per annum till its realisation.
