A.K.RAY,MEMBER - (1.) THE petitioners approached the OPs in January, 1990 for purchasing a flat. Accordingly, on 18.1.90 two agreements were executed by and between the petitioners and the OPs. Out of the same one was for absolute sale of proportionate undivided share of land in connection with absolute sale of north side first floor unit of the building at Premises No. 2A, Alipore Avenue, Kolkata -700027 having a super built -up area of 2124 sq. ft. more or less together with car parking space and a servant's quarter and the second one was for construction of the said flat. The total consideration money for the flat amounting to Rs. 5,90,000 together with other incidental expenses like deposit of money with Calcutta Electric Supply Corporation for separate electric meter was paid to the OPs, who handed over possession of the said flat to the petitioners. But in spite of several requests they failed and neglected to execute and register the Deed of Conveyance in respect thereof. Ultimately the instant case has been initiated by the petitioners against the OPs praying for a direction upon the OPs to execute and register the Deed of Conveyance in respect of the flat together with car -parking space/garage and a servant's quarter at the ground floor of the premises, etc. Compensation of Rs. 3,10,000 has been claimed for causing harassment to the complainants by the OPs. Admittedly, the complainant entered into two agreements with the OPs Smt. Santi Devi Agarwala, Smt. Gita Devi Dabriwal, Sri Jai Prakash Dabriwal, Sri Dwarka Prasad Dabriwal, Sri Sajjan Kumar Dabriwal, Smt. Laxmi Devi Agarwal, Sri Suresh Kumar Agarwal, Sri Naresh Kumar Agarwal, Sri Pawan Kumar Agarwal. During the pendency of the case Laxmi Devi Agarwal died leaving Kedar Nath Agarwal, Om Prakash Agarwal, Sanwarlal Agarwal, Ramesh Chandra Agarwal, Govind Agarwal, Arjan Agarwal, Subhash Agarwal as her heirs. In accordance with the terms of the aforesaid agreement the entire consideration money has been paid by the complainants to the OPs who also gave possession of the flat in question to the complainants herein. Only the possession of the 'car -parking space/garage and servant's quarter has not been provided by the OP to the complainants and the OPs till date have not executed and registered the Deed of Conveyance in respect of the flat in question including the car -parking space/garage and servant's quarter in favour of the complainants.
(2.) OUT of all the OPs only the OP Nos. 8 and 10 contested the case although notices were duly served upon all the OPs. In their written version the OPs challenged the maintainability of the instant case on three grounds namely - (i) The complaint was barred by Law of Limitation. (ii) In the agreement there was a provision for getting the dispute between the parties resolved through arbitration process. (iii) The complaint as made is not maintainable within the scope of Consumer Protection Act.
(3.) THIS application was heard and dismissed by this Commission through Order dated 11.8.2008 and against the same no revision having been preferred and the evidences of both sides having been completed the case was finally heard on 19.12.2008. The aforesaid order dated11.8.2008 passed by this Commission be made a part of this judgment. The learned Advocate appearing for the contesting OP Nos. 8 and 10 averred that as the complainants have been provided with the accommodation after construction of the building, they are not entitled for registration of the flat along with the car -parking space/garage and the servant's quarter. The learned Advocate for the complainants mentioned a decision reported in AIR 1973 Cal. 397 wherein it was held, "A document must be read as a whole. Piecemeal reading either of recital or operative portion or covenants cannot bring about fair and proper construction." In Page -7 of the agreement in Paragraph (c) it has been stated categorically that - "For the purpose of beneficial and proper enjoyment of such units/flats/apartments/constructed spaces the Developers shall transfer or cause to be transferred the impartible and undivided proportionate share in the land comprised in the said premises attributable to the said Unit/Flat for which the purchasers shall make payment of an agreed amount as and by way of consideration to the Developers....." In Page -13 under Clause 1.17 it is stated: "OWNERSHIP shall mean: (a) The unit to be so constructed or erected by the Developers in terms of this Agreement shall always belong and/or vest in the purchaser subject however to the purchaser making payment of all the amounts payable by the purchaser to the developers in terms of this Agreement and Deed of Conveyance or Transfer will be registered by the developer in terms of this Agreement in favour of the purchaser and each of the purchasers being entitled to an equal share into or upon the said Unit and the said Undivided Share.";