Date of Filing              :  15 October, 2020.

Date of Judgement     :  04 January, 2023.

Mr. Dhiraj Kumar Dey,   Hon’ble Member.

            The instant case arises when Smt. Parsti Das (Samaddar), the Complainant, filed a complaint U/S 35 of the Consumer Protection Act, 2019, herein after called the said Act, against 1) Sri Swapan Mondal, 2) Sri Sisir Kumar Mondal,  and 3) Swapan Brahma  (herein after called as Opposite Parties or O. Ps.) alleging deficiency in service on the part of the O. Ps.

            The brief statement of the complaint is that the Complainant, intending to purchase a residential flat, made an Agreement for Sale with the O. P. – 1 & 2 on 15/08/1999 for a Flat measuring about 690 sq. ft. on the first floor of the building being constructed by the O. Ps. – 1 & 2 on the premises at 25E, Bikramgarh, Kolkata – 700 032.  Total consideration for the flat was fixed at Rs.3,50,000/-.  The complainant paid the total consideration and took possession of the flat since then.  But the O. Ps. failed to execute and register the Deed of Conveyance in respect of the subject flat in favour of the complainant despite her repeated requests. Lastly, a legal notice was issued to all the opposite parties, through her Ld. Advocate, for execution and registration of the Deed of Conveyance.  But this time also the O. Ps. did not turn up to comply with their promised duty of executing the Deed.  Ultimately, finding no other way complainant filed this instant complaint with the prayer to direct the O. Ps. to execute and register the Deed of Conveyance together with a compensation of Rs.1,00,000/- and litigation cost of Rs. 30,000/- and other orders as this Commission would think fit.

        The Complainant submitted copy of the Agreement for Sale and copy of the legal notice as annexure to the complaint.

        On perusal of records it appears that service of notice  upon O. P. – 3 was satisfactory but he did not turn up to contest the case and the case proceeded ex parte against him.  Service of notice upon O. P. – 1 & 2 was not satisfactory for which notices were served upon them by way of paper publication through a daily news paper.  But the O. P. – 1 & 2 also did not come forward to contest the case. So the case proceeded ex parte against them also.

     During the course of the trial the complainant filed her Affidavit-In-Chief and ultimately argument was heard. Complainant did not file any brief note of argument.

      The only points required to be determined here are whether there is any deficiency in service occurred by the O. Ps. and whether the complainant is entitled to the reliefs as prayed for.  As the O. Ps. did to not take part in contesting the complaint these two points are taken together for the sake of convenience and brevity in discussion.

      Original documents in support of the complaint are taken into consideration for decision.

Decision with reasons

      We see from the statement of the complaint and the documents annexed therein that complainant made an Agreement for Sale with the O. P. – 1 & 2.  In this agreement the complainant is described a Purchaser, the O. P. - & 2 as Developers/Promoters.  The owner of the land, as stated in this agreement, is Smt. Prafulla Bala Brahma, but she has not been made a party in this agreement. In this agreement it is mentioned that the O. P. – 1 & 2 made a Development Agreement with and got Power of Attorney from the then owner of the premises namely Smt. Prafulla Bala Brahma on 22/01/1998 for construction of a four storied building at 25E, Bikramgarh, Kolkata – 700 032. It is seen in the Agreement for Sale that the complainant has signed as Purchaser and O. P. – 1 as Developer, and they have written the date as 15/8/1999, whereas the then owner, namely Smt. Prafulla Bala Brahma, signed through her L. T. I., and Sri Swapan Brahma, the O. P. – 3 herein above, have signed as witness.  Nowhere in the agreement the date of execution has been written except “THIS AGREEMENT MADE this  ……… day of …… nineteen hundred ninety nine”.  It is also observed that there is no time period within which the construction will be completed and possession of the flat will be given as seen from Page 6 Paragraph 5 of this agreement.  Mode of payment has been stated in Para 4 Page 5 and the complainant has paid first two instalments within the stipulated time.  Balance payment was said to be paid during handing over possession of the flat and execution of the Deed.  But the complainant failed to state when he has paid total consideration amount and when the possession was given.  It is seen that receipts of payments have been given on the back pages of the agreement and the last payment was made on 25/03/2001.  So, it may be presumed that complainant was given possession in and around 2001.  Since then execution of the Deed has not been made.  Complainant failed to establish how and when she requested the O. Ps. for such execution and what steps she had taken, except for mentioning the legal notice she has sent in 2019 through her Advocate.  She also failed to establish when the Owner, Smt. Prafulla Bala Brahma, has been died and after her demise who are the legal heirs to whom the rights and title of the premises has been transferred.   It is seen from the statement of the complaint that the O. P. – 3 is the son of Smt. Prafulla Bala Brahma who became the owner of the land after the death of his mother. It has not been mentioned there that whether he is the sole legal heir of the demised land owner.

            However, keeping in mind such discrepancies, we are of the view that the opposite parties have failed to comply with the conditions stated in the agreement for which they are liable to compensate for such a long delay to execute the Deed.  The O. P. – 1 & 2 should have to execute the Deed as the Developer/Promoter who made the agreement and the O. P. – 3 has also some obligations in the process as the owner of the premises.  Filing this complaint should not barred by limitation as it is a settled principle that unless and until the execution of the Deed and awarding peaceful and habitable possession of a flat is given the cause of action persists.

 Hence,

             it is

            ORDERED

 That the complaint Case being No. CC/261/2020 is allowed ex-parte against O. P. Nos. 1, to 3.

The Opposite Parties are directed to execute and register the Deed of Conveyance in respect of the subject flat in favour of the complainant within 90 days from the date of this order.  Cost will be borne by the complainant.  O. P. – 1 & 2 are directed to pay Rs. 30,000/- to the complainant within this time period.

The O. Ps. are also directed to pay a sum of Rs. 7,000/- as litigation cost to the complainant of which Rs.5,000/- to be paid by O. P. – 1 & 2 and Rs.2,000/- to be paid by O. P. – 3 within the aforesaid period.