Dt. of filing – 12/02/2019
Dt. of Judgement – 20/11/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely 1) Smt. Jyotsna Guria and 2) Trisha Guria under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Tarun Kumar Ghosh and 2) Dutta Constriction alleging deficiency in service on their part.
Case of the Complainant in short is that by an agreement for sale dated 3/1/2016 Complainants agreed to purchase the flat as described in the schedule at a total consideration of Rs.15,50,000/-. Opposite Party No.1 is the owner of the property and the Opposite Party No.2 is the developer. They entered into development agreement on 12/6/2013 in order to built up a multi-storied building on the land described in the said development agreement. A power of attorney was also executed by the Opposite Party No.1 in favour of Opposite Party No.2 on 12/6/2013 which was duly registered. Complainants have paid the entire consideration price to the Opposite Party developer and they have also been delivered the physical possession of the flat in question by issuing the possession letter on 16/6/2017. But the Opposite Parties have not executed the Deed of Conveyance in respect of the flat as per agreement, in spite of repeated request and the letter sent by the Complainants on 15/12/2018 and 10/1/2019. Thus the present complaint has been filed by the Complainants praying for directing the Opposite Parties to execute and register the sale deed in respect of the flat, to make payment of Rs.1,00,000/- as compensation, litigation cost of Rs.20,000/-, to pay Rs.50,000/- towards pain and sufferings and also Rs.1,00,000/- as punitive cost for unlawful trade practice.
Complainants have annexed with the complaint petition, copy of the agreement for sale dated 3/1/2016, copy of the development agreement dated 12/6/2013, copy of the Power of Attorney executed by Opposite Party No.1 in favour of Opposite Party No.2, possession letter dated 16/6/2017. Money Receipt issued by the Opposite Party No.2 dated 16/6/2017, copy of the notice dated 15/12/2018 & dated 10/1/2019 sent by the Complainants and copy of the complaint made before Officer-in-charge, Sarsuna Police Station.
Opposite Party No.1 has contested the case by filing written version contending inter alia that the Opposite Party has no personal knowledge regarding booking of the flat by the Complainants and as Power of Attorney was executed by Opposite Party No.1 dated 12/6/2013, developer could act as the constituted attorney of Opposite Party No.1 in order to execute any Deed of Conveyance in favour of the prospective buyers. So Opposite Party No.1 has prayed for dismissal of the case against him.
Opposite Party No.2 has also contested the case by filing separate written version denying and disputing the allegations made against him contending inter alia that initially the consideration amount of Rs.15,50,000/- was settled and accordingly stated in the agreement. But thereafter Opposite Party No.2 informed the Complainants that the consideration amount must be raised to Rs.19,50,000/- and that has been mutually agreed between parties. Complainants have not paid the balance amount of Rs.4,00,000/- and as such they are not entitled to the relief unless the said balance of Rs.4,00,000/- is paid. Thus the Opposite Party No.2 also has prayed for dismissal of the complaint.
During the course of the trial Complainants filed affidavit-in-chief. But the Opposite Parties failed to file any questionnaire and also did not file any evidence. Opposite Parties also did not take any step on the date of argument. Thus the Complainants have been heard. Complainants have also filed written notes of argument.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
In support of their claim that by an agreement dated 3/1/2016 Complainants have agreed to purchase the flat as described in the schedule, the copy of the agreement has been filed. It may however, be mentioned here that the execution of the agreement for sale dated 3/1/2016 has not been disputed and denied by the OP developer. Similarly Opposite Party No.1 being the owner has also not disputed and denied that development agreement was executed between Opposite Party No.1 and Opposite Party No.2 and Power of Attorney was executed by Opposite Party No.1 in favour of Opposite Party No.2. Only contention which has been raised by the Opposite Party No.2 in the written version is that the consideration was settled of Rs.19,50,000/-. But on perusal of the agreement for sale dated 3/1/2016 it is apparent that consideration amount was fixed as Rs.15,50,000/- which admittedly has been paid by the Complainants. Opposite Party No.2 has admitted in the written version that an amount of Rs.15,50,000/- has been paid. However, Rs.4,00,000/- is due to be paid. But in support of its claim that the consideration price was Rs.19,50,00/-, no document has been filed by Opposite Party No.2. It is already highlighted above that after filing the written version, Opposite Party No.2 did not file any evidence in support of its claim that the consideration was fixed at Rs.19,50,000/-. So in the absence of any evidence/documents, claim of the Opposite Party No.2 that the Complainants are due to pay Rs.4,00,000/- cannot be accepted. Admittedly and also as appears from the possession letter dated 16/6/2017, possession of the flat in question has already been handed over to the Complainants. Even in the possession letter, there is no mention about any dues to be paid by the Complainants to Opposite Party No.2. So in such a situation as the Deed of Conveyance has not been executed in favour of the Complainants, they are entitled to the execution and registration of the sale deed in respect of the flat as per agreement. They are also entitled to compensation as they will have to bear the cost towards registration as per present market value of the property.
Hence,
ORDERED
CC/85/2019 is allowed on contest.
Opposite Parties are directed to execute the sale deed in respect of the flat in favour of the Complainants as per agreement dated 3/1/2016 within 3(Three) months from this date.
Opposite Parties are further directed to pay compensation of Rs.50,000/- and litigation cost of Rs.12,000/- within the aforesaid period of 3(Three) months failing which the entire sum shall carry interest @9% p.a till realisation.
