Date of filing : 12.06.2019

Judgment : Dt.20.01.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Kunal Sen Gupta alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Saibal Ghosh, (2) Sri Surajit Ghosh and (3) Abode Promoters Private Limited.

            Case of the Complainant, in short, is that one Mamata Ghosh was the owner in respect of the property described in the Schedule A of the complaint. On her demise, OP No.1 & 2 being her legal heirs inherited the property and became the owners. They entered into a development agreement with OP No.3 and the same was registered on 9.10.2012. A power of attorney was also executed in favour of the OP No.3 by OP No.1 & 2 and the same was also registered on the said date i.e. 9.10.2012. During the continuance of the construction of G+5 storied building, OP No.1 & 2 entered into an agreement to sale the C-schedule property to the Complainant by an agreement for sale dt.25.6.2017 at a consideration of Rs.19,00,000/-. Complainant paid an amount of Rs.5,00,000/- by cheques dt.2.7.2017, and further paid a sum of Rs.1,00,000/- by other two cheques dt.24.9.2017. But the OPs have been trying to occupy and capture the said flat asking more money than what was agreed as consideration from the Complainant. The Complainant has not been handed over the possession of the flat nor the deed has been executed. The Complainant also sent the notice through his Ld. Advocate to the OPs, but, all in vain. Thus, the present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance in respect of the flat, mentioned in the Schedule C of the complaint, to handover the khas and vacant possession of the flat, to supply the completion certificate, to pay compensation of Rs.50,000/- and litigation cost of Rs.20,000./-

            Complainant has annexed with the complaint, copy of the development agreement dt.9.10.2012, copy of the registered power of attorney, copy of the agreement for sale dt.25.6.2017 entered into by the OP No.1 & 2 with the Complainant, the letter sent by the OP No.1 & 2 to the Complainant dt.2.8.2017 and the letter dt.1.9.2017. Complainant has also filed the copy of the Bank Statement showing payment and also notice sent through his Ld. Advocate dt.11.4.2019.

            On perusal of the record, it appears that notice was sent but no step was taken by the OPs and neither any written version was filed by them. Thus, vide order dt.29.8.2019, the case was directed to be proceeded ex-parte.

            During the course of the trial, Complainant filed affidavit-in-chief and ultimately argument has been advanced. Written notes of argument has also been filed by the Complainant.

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

            Decision with reasons

            Complainant has claimed that by an agreement dt.25.6.2017, he agreed to purchase a flat as described in the Schedule C of the complaint at a consideration of Rs.19,00,000/- out  of which he has paid total sum of Rs.6,00,000/-. In order to support his claim, Complainant has filed the copy of the development agreement entered into between the OPs and the registered power of attorney executed by OP No.1 & 2, the owner in favour of OP No.3, developer. On perusal of the agreement for sale, entered into with the Complainant dt.25.6.2017, it appears there is no specific mention about the area of the flat agreed to be purchased. However, a letter has been filed dt.2.8.2017 sent by the OP No.1 & 2 to the Complainant wherein the area of the flat has been stated as 515 sq.ft without car parking. It may also be mentioned here that in the 2^nd schedule of the agreement, the flat agreed to be sold to the Complainant has been stated in the ground floor of the new building, whereas in the letter dt.2.8.2017 the flat has been stated being No.405 in the 4^th floor. It is made more clear in the letter dt.1.9.2017 sent by the OP No.1 & 2 to the Complainant that the flat/unit No. was 405 in the 4^th floor. In the said letter it has been intimated by the OP No.1 & 2 to the Complainant that the said flat being No.405 in the 4^th floor as allotted to him in the new building named ‘Mamata Enclave’ was to be ready for delivery approximately by the end of the year 2017. So, on consideration of the said letter dt.1.9.2017, claim of the Complainant that neither, the possession has been handed over nor the deed has been executed and so he is entitled to the possession and execution and registration of the deed in his favour in respect of the said flat being No.405 in the 4^th floor on payment of balance consideration price of Rs.13,00,000/-cannot be denied especially when no contrary material is forthcoming before this Forum in order to counter or rebut the claim of the Complainant. However, in the given situation of this case, as the major part of the consideration price has not been paid by the Complainant, there is no justification to pass any order as to compensation and litigation cost.

            Hence

                              ordered

            CC/277/2019 is allowed ex-parte against OP No.1 & 2 and dismissed against OP No.3. OP No.1 & 2 are directed to deliver the possession of the flat described in the schedule ‘C’ of the complaint to the Complainant and to execute and register the deed of conveyance in his favour, within three months from the date of this order on payment of balance consideration price of Rs.13,00,000/- by the Complainant.