West Bengal

South 24 Parganas

CC/161/2013

SRI TARA SHANKAR CHOWDHURY - Complainant(s)

Versus

"MA PLAZA PVT. LTD". - Opp.Party(s)

SANKAR PRASAD DALAPTI.

27 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _161_ OF ___2013_

 

DATE OF FILING : 22.4.2013                     DATE OF PASSING JUDGEMENT:  27.10.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Sharmi Basu &  Subrata Sarkar

                                                                             

COMPLAINANT        :    Sri Tara Shankar Chowdhury,s/o late Jagatbandhu Chowdhury of 62/3, Tollygunge Road, Kolkata – 33

 

-VERSUS  -

 

O.P/O.Ps                            :     1.   Ma Plaza Pvt Ltd. 315, Tentulberia Road, Garia, P.S. Sonarpur, Kolkata-84.

                                               2.    Sri Amit Kumar

                                               3.    Sri Ashish Kumar, both sons of Sri Amaresh Chandra Kumar

                                               4.    Smt. Mousumi Kumar,w/o Sri Amit Kumar , All directors of M/s Ma

    Plaza Pvt. Ltd. of 315, Tentulberia Road, Block-A, Flat no.T-6, Garia, P.S Sonarpur, Kolkata – 84.

    5.    Ms. Krishna Banerjee,d/o late Uma Mukherjee , 315, Tentulberia Road,Mousumi Appertment,  Block-C, Flat no.12,3^rd Floor, Garia, P.S Sonarpur, Kolkata – 84

     6.     Rina Daw (Mukherjee) w/o Pradip Daw ,d/o late Uma Mukherjee of 43/3/1B, S.N. Banerjee Road, Kolkata - 14

    

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the allegation that complainant for his urgent need of suitable accommodation for his family members entered into an agreement for sale on 29.3.2004 with the O.P-1 developer for purchase of two flats of 635 sq.ft in the building to be constructed as Parichay Apartment   for a total consideration of Rs.8,50,000/- and also paid full consideration money. It has further stated that after payment of consideration money possession was handed over to the complainant but O.Ps did not execute and register the deed of conveyance. Hence, this case.

The O.P nos. 1 to 4 contested the case by filing written version and has denied all the allegations leveled against them. It has strongly claimed that in respect full and final consideration money of Rs.8,50,000/- in respect of two flats as described in the agreement . the O.Ps did not receive and acknowledge any amount from the complainant till date  and has claimed that complainant is unable to furnish any receipt of payment.  It has seen that there is no question of negligence on the part of O.P nos. 1 to 4 and they prays for dismissal of the case.

O.P nos. 5 and 6 contested the case by filing written version and challenged the maintainability of the case and denied all the allegations save and except which are matters of record. It has been admitted by the O.P nos 5 and 6 that complainant is in possession in respect of the two flats at 3^rd floor at Parichay Apartment. It has further stated that in pursuant to the agreement dated 25.12.2002 the O.Ps completed construction of multi storied building over the properties and entered into an agreement with the intending purchasers without having any authority or powers. It has claimed that O.P nos. 1 to 4 accepted money from so many intending purchasers  and executed deed of conveyance in favour of the purchasers without any consent or permission or power of attorney from O.P nos. 5 and 6. It has claimed that O.P nos. 1 to 4 did not hand over possession of the owners’ allocation till today.  It has claimed in para 10 that after receiving notice dated 2.8.2010  and 13.7.2012 issued by the Ld. Advocate of the complainant these O.Ps contacted  but the O.Ps have been requested to keep silence over the issue and O.P-2 will dissolve the issue upon payment of Rs.8,50,000/- to O.P nos. 5 and 6 which they received from the complainant and also assured that  O.P nos. 1 to 4 will hand over possession of the owners’ allocation upon O.P nos. 5 and 6 and in consideration the O.Ps will execute and register the deed of conveyance in favour of the complainant but O.P nos. 1 to 4 did not take any measures till today.  So, these O.Ps have no deficiency in service and O.P nos. 1 to 4  are solely responsible. Accordingly O.Ps prays for dismissal of the case.

Point for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                            Decision with reasons

At the outset it must be stated that our predecessor Forum dismissed the complaint on 23.9.2013 on the basis of a judgment passed by the Hon’ble National Commission reported in 2012 (3) CPR page 104 and held that out of the two flats one flat indicates commercial purpose.

Complainant thereafter preferred an appeal before the Hon’ble State Commission being appeal no.A/140/2015 ,wherein Hon’ble State Commission has observed that as to the commercial nature of tenancy the reliance of the Ld. District Forum on the decision of the Hon’ble National Commission  in Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions reported in 2012 (3) CPR 104 (NC) is misplaced as the transaction of the referred case is related to commercial show room, but not the residential accommodation of two different family members as in the case on hand.

We also find that in the case in hand complainant booked flats for residential purpose of his family. So, question of commercial purpose does not arise at all. So, my predecessor Bench unnecessary passed this order and thereby complainant has suffered lot since long,  although, they are in possession and not using both the flats for commercial purpose but instead of that they are using the flats as a residential purpose of their family members.  We are convinced regarding payment of Rs.8,50,000/- from the written version of land owners. So, O.P nos. 1 to 4 cannot claim the same that payment was not made.  This part of statement is not accepted after going through the warrant of arrest of land owners O.P nos. 5 and 6.   Moreover, when the possession has been delivered it is impliedly proved that O.P nos. 1 to 4 accepted the consideration money and thereafter handed over possession, otherwise physical possession was not given to the intending purchasers ,herein the complainant.  Thus the totality of the circumstances clearly suggests that complainant has been able to prove his case.

Hence,

                                                            Ordered

That the  application under section 12 of the C.P Act, 1986 is allowed on contest.

The O.P nos. 5 and 6 are hereby directed to execute and register the deed of conveyance in respect of two flats being nos.S-004 and T-005   wherein the O.P nos. 1 to 4 will stand as a confirming party in favour of the complainant within 45 days from the date of this order.

The O.P nos. 1 to 4 are hereby directed to pay compensation to the tune of Rs.1,20,000/- , which is considered as an excess charge for registration due to enhance of stamp duty and registration charge and the same was happened due to O.P nos. 1 to 4 who are directors of O.P-1.  The O.P nos.1 to 4 are jointly and/or severally liable to pay the compensation of Rs.1,20,000/-  and litigation cost of Rs.5000/- to the complainant within 45 days from the date of this order.

It is further ordered that if the O.Ps specially O.P nos. 5 and 6 failed to cooperate in the matter of registration within the stipulated period,  then they( O.P nos. 5 and 6)  have to pay compensation to the tune of Rs.100,000/- to the complainant and of course that money has to be paid after the stipulated period of 45 days is over, otherwise not.

If the O.Ps failed to comply the above mentioned orders within the stipulated period, then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                            Ordered

That the  application under section 12 of the C.P Act, 1986 is allowed on contest.

The O.P nos. 5 and 6 are hereby directed to execute and register the deed of conveyance in respect of two flats being nos.S-004 and T-005   wherein the O.P nos. 1 to 4 will stand as a confirming party in favour of the complainant within 45 days from the date of this order.

The O.P nos. 1 to 4 are hereby directed to pay compensation to the tune of Rs.1,20,000/- , which is considered as an excess charge for registration due to enhance of stamp duty and registration charge and the same was happened due to O.P nos. 1 to 4 who are directors of O.P-1.  So, the O.P nos.1 to 4 are jointly and/or severally liable to pay the compensation of Rs.1,20,000/-  and litigation cost of Rs.5000/- to the complainant within 45 days from the date of this order.

It is further ordered that if the O.Ps specially O.P nos. 5 and 6 failed to cooperate in the matter of registration within the stipulated period,  then they( O.P nos. 5 and 6)  have to pay compensation to the tune of Rs.100,000/- to the complainant and of course that money has to be paid after the stipulated period of 45 days is over, otherwise not.

If the O.Ps failed to comply the above mentioned orders within the stipulated period, then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President