S. Coari, LD. Member
1. The present petition of complaint has been filed by the complainants namely Mr. Suraj Ratan Mundra and Mr. Kailash Mundra, the two brothers, against the OP, Vivekananda Construction Company, thereby praying for a direction upon the Ops to execute and register the deed of conveyance in favour of the complainants in respect of the flat purchased by the complainants from the OP for valuable consideration along with a further direction to pay compensation to the tune of Rs. 20,00,000/- for mental agony, Rs. 4,00,000/- for enhancement of registration fee and stamp duty along with litigation cost to the tune of Rs. 20,000/-.
2. The case of the complainants, in brief, is that the complainants being desirous of purchasing a self-contained flat paid Rs. 7,85,300/- being the consideration money in respect of the flat to the OP/Construction Company. According to the complainants, after payment of the entire consideration money in 1998 the OP issued possession letter in respect of the flat in favour of the complainants on 24.4.99 and assured the complainants about the registration of the deed of conveyance within a very short period of time. It is the further case of the complainants that they in due course of time took possession of the flat and out of their own motion obtained electricity connection and mutated their names under Kolkata Municipal Corporation for the purpose. As the OP delayed and denied to execute and register the deed of conveyance in favour of the complainants for a prolong period, the registration fee and stamp duty has enhanced to a great extent and that too is prejudicial to the interest of the complainants. Ultimately the complainants after serving legal notice upon the Ops have instituted the present complaint for the alleged deficiency in service at the instance of the Ops and hence, the present complaint.
3. The OP is contesting the case by filing a written version thereby denying and disputing the allegations mentioned in the petition of complaint contending inter alia that there is no deficiency in service at the instance of the OP as claimed by the complainant. According to the OP, the complainants were informed a number of times about the execution and registration of the deed of conveyance, but the complainants never cooperated with the OP in this matter and the delay has caused due to such extreme non-cooperation at the instance of the complainants. The petition of complaint having been filed on all false and fictitious grounds the same is liable to be dismissed.
4. Upon pleadings of the parties the following issues are framed for proper adjudication of the complaint case.
1. Is the OP deficient in service as mentioned by the complainants?
2. Are the complainants entitled to the reliefs as prayed for?
Decision relied upon at the instance of the Op :-
2012 (2) CPR 254 (NC)
DECISION WITH REASONS
5. All the points are taken up together for the sake of convenience.
6. At the time of hearing it has been submitted by the Ld. Advocate for the complainants that in this case the complainants have been able to substantiate their allegations so put forward against the Ops and from the materials on record including the evidence it is evident that it is the OP who intentionally held the execution and registration of the flat in favour of the complainants and due to this delay unnecessary the registration charges has increased to the detriment of interest of the complainants. According to the Ld. Advocate, the complainants have already suffered great mental agony and distress and not only that, they are now facing a huge amount of financial liability in the matter of enhancement of stamp duty and registration fee in respect of the flat in question. While concluding his submissions the Ld. Advocate for the complainants has submitted before us that due to such intentional inaction on the part of the OP the complainants have suffered a lot and such inaction on the part of the OP tantamounts to gross deficiency in service, for which the OP is liable to pay as per prayer of the complainants.
7. While countering such submissions it is submitted by the Ld. Advocate for the OP that in this case there is practically no defiency in service at the instance of the OP, as claimed by the complainants. According to the Ld. Advocate, a number of time the OP approached the complainants for the purpose of execution and registration of the deed of conveyance in question, but the complainants never cooperated in this regard. Hence, the delay has caused for the non-cooperation on the part of the complainants for which the OP has got nothing to do. According to the Ld. Advocate for the OP, there is also no material on record for the purpose of assessing the damage and/or compensation, as claimed by the complainants, and the petition of complaint having been filed on all false and fictitious grounds the same is liable to be dismissed. Ld. Advocate for the OP has also relied upon the decision reported in 2012 (2) CPR 254 (NC), wherein the Honble National Commission has held, âComplainant cannot claim compensation for his own lapsesâ.
8. We have duly considered the submissions so put forward on behalf of both sides and also have gone through the materials on record including pleadings of the parties and the evidence led by the parties and find that in this case the complainants have come forward with a case to the effect that in spite of payment of full consideration money in respect of the flat in question to the OP as far back as in the year 1999 and admittedly when the complainants are in possession thereof after delivery of possession was effected at the instance of the OP, the OP has intentionally defaulted in not executing and registering the deed of conveyance in favour of the complainants, which, according to the complainants, tantamounts to deficiency in service and that due to such lapse of time the registration cost has increased to a great extent and that too against the financial interest of the complainants and hence, the petition of complaint. The OP, on the other hand, has come forward with a case that for the delay in executing and registering the deed of conveyance it is the complainant who is to blame as in spite of repeated requests at the instance of the OP the complainants never cooperated in this matter and as such, there is no deficiency in service at the instance of the OP and that the petition of complaint was liable to be dismissed.
9. From the facts and circumstances of the case and the conduct of the parties we find that admittedly the complainants are in possession of the flat in question since 1999 and that the question of payment of consideration money is also not challenged. If that be the position, we think that the legal presumption goes against the OP in the matter of execution and registration of the deed of conveyance in question in favour of the complainant. There is practically no tangible answer on the part of the OP as to what caused such abnormal delay in execution and registration of the deed in question, which, in our opinion, tantamounts to deficiency in service. So far as it relates to payment of compensation, we are of the considered opinion that ends of justice will be met if the OP be directed to pay compensation to the tune of Rs. 3,00,000/- and litigation cost to the tune of Rs. 3,000/- only in favour of the complainants. We have also gone through the decision relied upon by the OP, but the facts and circumstances of the cited decision being different from the instant one the principles laid down in the decision does not apply to the instant case. Both the points are accordingly disposed of in favour of the complainants. In the result, the petition of complaint succeeds.
10. Hence, it is ORDERED that the complaint case stands allowed in part on contest against the OP with cost. The OP is directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat in question within 45 days from the date hereof, failing which the complainants will be entitled to have the decree executed through the process of law with the help of the machinery of this Commission. The OP is further directed to pay compensation to the tune of Rs. 3,00,000/- and litigation cost of Rs. 3,000/- to the complainants within 45 days from the date hereof, failing which the amounts will carry interest @ 8% per annum from the date of this order till realization in full.