Date of filing : 30.11.2015
Date of S/R : 23.02.2016
Date of Order : 31.05.2016
Sukhdeb Paul
S/o- Late Sudhir Chandra Paul,
Residing at 46, Nandalal Mitra Lane,
P.S.- Golabari, Howrah-711106…………………………………….Complainant
Vs.
1) Shri Rathin Kumar Biswas .,
S/o-Late Samarendra Nath Biswas.
2) Smt. Sikha Biswas,
W/o Sri Rathin Kumar Biswas,
3) Smt. Sathi Mondal,
D/o- Late Samarendra Nath Biswas,
O.P. 1 to 3 reside at
Dashkin Jharpadaha,
P.S, Howrah.- Domjur ah-711405
4) Sri Ranjit Singh,
S/o Lt. Raja Ram Singh,
Residing at 90, Khetra Mitra Lane,
P.S. Golabari, District-Howrah-711106.
P R E S E N T
………………………………………………………………………………………
President : Shri B. D. Nanda.
Member : Smt. J. Saha.
Member : Shri A. K. Pathak.
F I N A L O R D E R.
This is an application U/s 12 of the Consumer Protection Act,1986 filed by the Petitioner, Sukdeb Pal, praying for an order directing the O.Ps to execute and register the deed of sale of the schedule mentioned flat in favour of petitioner measuring 234 Sq. feet situated at the ground floor of 4 storied building constructed at holding NO. 46 Nandalal Mitra Lazne, P.S. –Golabari and to pay compensation of Rs. 2,00,000/- and Rs. 25,000/- as litigation cost.
The case of the petitioner is that the opposite party No. 1 to 3 are the joint owner of holding No. 46, Nanda Lal Mitra lane and they enter into a development agreement on 16.12.1997 with the O.P. No. 4 for construction of a multistoried building. The petitioner was a tenant in respect of one room with right to use common bath and privy in holding No. 47 which was amalgamated with holding No. 46 along with 45 and the Dag No. remained as Dag Number. i.e. 46 after amalgamation . The O.P. No. 4 entered into an agreement with this petitioner on 17.11.1998 for sale of one room measuring 100 Sq. feet in the ground floor of the 4 storied building to be constructed at a consideration of Rs. 325/- per Sq. feet. The O.P. No. 4 also entered into agreement with the petitioner on 31.07.2001 to sell another room to the petitioner . The O.P. No. 4 on consent of other O.P.s constructed one flat in the ground floor measuring 234 Sq. feet and the petitioner obtain possession of the said flat in the month of January 2000. Now the O.P.s are avoiding to execute the deed of sale in favour of the petitioner. The petitioner issued legal notice resulting the petitioner suffering from mental agony and harassment and lastly on 09.09.2015 the O.P. No. 1,2 & 3 refused to sign the sale deed compiling the petitioner to file this case.
The O.P. 4 , promoter contested the case by filing a W/V denying the allegation made against him and submitted that by a letter dated 03.10.2015 he informed the petitioner that the land lords have cancelled the development agreement and revoked the power of attorney and so he is unable in executing and registering the sale deed in favour of petitioner. This O.P. No. 4 is always ready and wiling to execute and register the sale deed. The petitioner is never a consumer and he approached the Forum with unclean hand and guilty of suppression of material facts and so the case may be dismissed against O.P. 4.
The O.P. No. 1 to 3 being the land lord of the case did not appear in the Forum inspite of proper service of notice and so the case is heard exparte against them.
On the above cases of the parties the following issues are framed :
- Is the case maintainable in the present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the petitioner is entitled to the get the reliefs as prayed for ?
Decision with reason
In support of his case the petitioner filed before this Forum one affidavit in evidence and documents being voters Identity cards of his family members and self and his ‘Andhar Card’ and his LPG. I. Card, CESC and all these documents mentioning the same address electric bill and all the above documents corroborating the affidavit of evidence of the petitioner that he is in possession of the case mentioned residential flat measuring 234 Sq. feet since January,2000 and these agreements for sale of the said flat between the petitioner purchaser and the Opposite party, land owner and developer also affirming said possession as well as payment of Rs. 65,000/- being the total consideration for the second schedule mentioned property and also it is noticed from the agreement dated 17.11.1998 that the B schedule mentioned 100 Sq. feet room in the ground floor was to be sold at a settleed price of Rs. 325 per Sq. feet and at the time of execution of the agreement Rs. 3000/- was paid by the petitioner to the O.P. and the rest would be paid in 120 equal monthly installments of Rs. 250/- per month commencing from December,1998 and the payment due made within 10 days of every month as mentioned in the sale assignment dated 17.11.1998. In the latter agreement dated 31.07.2001 it is mentioned that the total consideration being Rs. 65,000/- the purchaser has paid 40,000/- and balance 25,000/- would be paid in 25 monthly installment of Rs. 1000/- each. Thus it is clear from agreement dated 31.07.2001 that the petitioner paid 40,000/- and rest 25000/- be paid month by month. One document has been produced by the petitioner that he had already paid the above consideration amounting to Rs. 1,17,000/- and the document being duly signed by the petitioner Sukdeb Pal and one of the owners of property Rathin Biswas which proved the facts that the petitioner has already paid the consideration amount .
Heard the ld. Counsels of the both side as well as kept in mind the contention of the complaint petition and the written version along with documents filed therein and also keeping in mind the provision of law as laid down in the C.P. Act, 1986 and the law laid down by Hon’ble Supreme Court this Forum finds that the petitioner in the instant case has already paid the total consideration and he is entitled to get the deed of conveyance registered in his favour by the Opposite parties.
As regards limitation mentioned by the O.P. this Forum finds that there is no limitation as soon after the agreement of sale the petitioner is in possession of the property on payment of Rs. 40,000/- as noticed from sale agreement dated 31.07.2001. So the cause of action continued and the question of limitation does not arise here as the cause of action would continue till the deed of conveyance is register.
As regards O.P. 4 stating in his W/V that by a letter dated 03.10.2015 the land lord informed him that they have cancelled the development agreement and revoked the power of attorney and so the O.P. No. 4, developer has surrendered his right as a developer . This Forum finds that the revocation of power of attorney if any and the cancellation of the development agreement if any being of later dates are not applicable here and the same would not debar the right of the developer to execute and register the sale deed in his favour. Both the land lords as well as the developer being party to the sale agreement with the petitioner are responsible for executing and registering the sale deed in favour of the petitioner.
In view of above discussion and findings the case succeeds .
Court fees paid is correct.
Hence,
Ordered,
That the CC 379/2015 be and the same is allowed on contest against the O.P. NO. 4 without cost and exparte against the rest with cost.
The petitioner is entitled to get the relief and the O.P.s are directed to execute and register the sale deed in respect of the schedule mentioned flat within 30 days from the date of order and all the O.P.s are jointly and severely liable to pay compensation of Rs. 20,000/- to the petitioner for causing mental agony and harassment for long years and the O.P. No. 1 to 3 are to pay litigation cost of Rs. 10,000/- failing which the petitioner would be at liberty to put the order in execution and also the above sum of Rs. 30000/- would carry interest @ 9% per annum after the stipulated period till realization.
Supply the copy of the order to the parties free of cost.
Dictated and corrected
by me
( B. D. Nanda)
President, C.D.R.F. Howrah
