Dt. of filing- 02/11/2017
Dt. of Judgement- 20/11/2018
Mrs. Sashi Kala Basu, President.
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the complainant Smt. Arti Das against Opposite Parties (1) Sri Sambhu Nandi (2) Smt. Laxmi Rani Nandi (3) Sri Pintu Nandi (4) Miss Kakali Nandi (5) Anita Saha (6) Smt. Sarbani Durge (7) Smt. Aruna Dey alleging deficiency in service on their part.
Case of the complainant in brief is that Opposite Party Nos. 2 to 7 being owners of 3 cottahs 5 chittaks of land in P. S. Garfa ( Previously Kasba ) C.
S. Plots no. 361 (P) , 362(P), Plot No. 103, Survey Plot No. 374, K. M.C. Premises 103, Vivek Nagar Block 2 and 3, Kolkata – 700 075, District South 24 Parganas entered into a development agreement dated 28.04.2010 with Opposite Party No.1 to construct a building in the Premises. OP Nos.2 to 7 executed Power of Attorney in favour of OP No. 1 on 04.05.2010. Developer/OP No.1 thereafter entered into an agreement for sale dated 10.10.2011 with the complainant to sell a flat measuring 360 sq. ft. on the north side in the first floor on consideration of Rs. 4,70,000/-. But inspite of the said agreement , said flat was sold to someone else and complainant thereafter was made to enter into an agreement dated 20.07.2014 to purchase a flat measuring 360 sq.ft. super built area in the ground floor North East side on consideration of Rs. 6,50,000/-. Complainant has paid Rs. 5,17,000/- out of Rs. 6,50,000/-.But the Opposite Parties have not executed and register the deed of conveyance in favour of the complainant inspite of request and demand made through Ld. Advocate. Complainant has always been ready to pay the balance consideration of Rs. 1,33,000/- . Even though possession of the said flat has been handed over to the complainant on 04.02.2016 but OP No.1 has not given any possession letter to the complainant. There has been unfair trade practice and deficiency in service on the part of the Opposite Parties and thus present complaint petition is filed praying for directing the Opposite Parties to execute and register the deed of conveyance in respect of the property mentioned in the schedule, to pay compensation of Rs. 2,00,000/- and litigation cost of Rs. 10,000/-.
Opposite Party No.1 has contested the case by filing the written version denying the material allegations contending inter alia that he is always ready to assist and accommodate the complainant and perform his part of duty by signing the deed of conveyance as a confirming party whenever the complainant and Opposite Party No.6 is willing to do the process of registration in respect of the flat. According to him agreement dated 29.07.2014 was entered into between complainant and the Opposite Party Nos. 2 to 6 and he was just a confirming party. Thus complainant has prayed for dismissal of the complaint petition.
It appears from the record that OP Nos. 2 to 7 did not file any written version and thus vide order dated 10.01.2018 case was directed to be proceeded ex-parte against them.
Complainant has annexed documents with the complaint. They are copy of development agreement , Power of attorney in favour of the developer. Three agreements of sale dated 10.10.2012 , 08.07.2014 and 29.07.2014, money receipts, letters sent by the complainant to Opposite Parties and the reply sent by them.
Opposite Party No.1 has also filed copy of receipts acknowledging receiving three separate cheques of total sum of Rs. 1,00,000/- as refund amount and reply sent by OP to the complainant’s notice.
During course of the evidence, complainant and OP No.1 filed their respective affidavit-in-chief and cross-examination by way of questionnaire and reply thereto.
So the following points require determination :-
- Whether the Opposite Parties rendered deficiency in service on their part?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Point No.1 and 2 :
Both the points are taken up together for the sake of convenience and in order to avoid repetition. There is no dispute that OP No.2 to 7 being owner entered into a development agreement with the OP No.1 and also executed a Power of attorney in his favour. It also appears from the record that an agreements for sale was executed by and between OP No.1 and the complainant on 10.10.2012. The agreement reveals that the agreement was to sell the flat measuring 360 sq.ft. on the North side in the first floor on total consideration price of Rs. 4,70,000/-. Out of which admittedly a sum of Rs. 3,00,000/- was paid by the complainant to OP. No.1. But the said flat was sold to OP No.3 subsequently and OP No.1 and OP No.6 then entered into an agreement on 08.07.2014 in respect of a flat in the ground floor and thereafter they entered into an agreement to sell that flat to complainant on 29.07.2014 on a consideration of Rs. 6,50,000/-.It is true that in the said agreement dated 29.07.2014, OP No.1 has signed as a confirming party but payment towards consideration price of RS. 17,000/-, Rs. 3,15,000/- and Rs. 1,85,000/- was received by the OP No.1. Three receipts dated 14.11.2014 , 27.09.2014 and 09.10.2014 have been issued by the OP No.1.
It is evident that initially by agreement dated 10.10.2011 Opposite Party no.1 being developer had agreed to sell the flat in first floor to the complainant and had received Rs. 3,00,000/-. But subsequently handed over the possession of the same to OP No.3. OP No.1 was bound by the agreement dated 10.10.2011 to handover possession of that flat to complainant. So OP No.1 definitely has committed unfair practice. The claim of the complainant that she was asked by the OP No.1 that she would be given flat in the ground floor and she agreed only on the request and being told by OP No.1 is substantiated from the agreement for sale date 08.07.2014 and 29.07.2014. What was the necessity of OP No.6 to enter into agreement with OP No.1 to sell ground floor flat? It only indicates that she did it to sell the same to complainant. So the contention of the OP No.1 that he has nothing to say in the matter and OP No.6 only liable to execute the deed is an afterthought and malafide. Even though a sum of Rs. 1,00,000/- has been returned by the OP No.1 to complainant out of Rs. 3,00,000/- paid initially by the complainant to OP No.1 but there remains no doubt that a total sum of Rs. 5,17,000/- has been paid by the complainant on the basis of agreement of sale dated 29.07.2014 and as possession of ground floor flat though has been handed over to the complainant but she is entitled to the deed of conveyance in her name. Complainant is also entitled to compensation of Rs. 75,000/-as she has been struggling since 2011 and got the possession of another flat in 2016 but still it is not registered in her name.She is entitled to the said compensation for the harassment and mental agony suffered by her. Moreover, she has to bear the cost of the registration as per the present market value. As it is the developer for whose conduct she had been struggling, major part i.e. Rs. 50,000/- towards compensation will be paid by the OP No.1 and remaining part of Rs. 25,000/- will be paid to the complainant by the OP Nos. 2 to 7 the owners. Complainant is also entitled to litigation cost as she has been compelled o file this case.
Thus these points are answered accordingly.
Hence,
Ordered
CC/616/2017 is allowed on contest against Opposite Party No.1 and ex-parte against OP No.2 to 7. Opposite Parties are directed to execute and register the deed of conveyance in the name of the complainant in respect of the flat mentioned in the schedule of the complaint, within two months on receiving the balance consideration price of Rs. 1,33,000/- from the complainant. Complainant is directed to pay the said balance amount of Rs. 1,33,000/- to Opposite Parties.
OP No.1 and OP Nos. 2 to 7 are further directed to pay Rs. 50,000/- and Rs. 25,000/- respectively as observed in the judgement, to the complainant within the aforementioned period of two months. OPs are further directed to pay litigation cost of Rs. 5,000/- to the complainant.
