West Bengal

South 24 Parganas

CC/239/2013

MR. SAMAR DAS GUPTA. - Complainant(s)

Versus

1. ABS LAND DEV. & CONST. PVT. LTD. - Opp.Party(s)

RUMA CHAKRABORTY.

16 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _241_ OF ___2013_

 

DATE OF FILING : 21.6.2013                     DATE OF PASSING JUDGEMENT:    16/08/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Sharmi Basu &  Subrata Sarker

                                                                             

COMPLAINANT             :   Mr. Debasis Ghosh,s/o late Nani Gopal Ghosh of 4, Hiralal Sonar Lane, Gorabazar, P.O Berhampore, District. Murshidabad.

 

-VERSUS  -

 

O.P/O.Ps                            :  1. ABS Land Development & Construction Pvt. Ltd. of 13/B, Jatin Das Road, Kolkata – 29.

                                              2.   Mr. Tapan Ghosh, The Managing Director of ABS Land Development & Construction Pvt. Ltd. of 13/B, Jatin Das Road, Kolkata – 29.

                                              3.     Sk. Maqbul Hossain, The Director of ABS Land Development & Construction Pvt. Ltd. of 13/B, Jatin Das Road, Kolkata – 29.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            The short case of the complainant is that  being attracted with the broacher and project plan of “Pailan City” that O.P no.1 has been making residential plotting at the side on the Diamond Harbour Road , Pailan which is 7 km away from Behala , complainant approached the O.p for purchasing a residential plot in the said project. Accordingly on 30.6.2006 complainant booked plot no. 26  Block-A of Pailan City measuring about 1800 sq.ft equivalent to 2.5 cotah under Dag no.927, Khatian no.74,J.L.no.18 Mouza-Chak Rakmolla Gram panchayat , Bishnupur(East), P.S. Bishnupur at a consideration of Rs.1,86,750/- . Complainant paid Rs.60,000/- on 30.6.2006  as booking amount.  It has stated tht residual  balance of Rs.1,26,750/- was only due to be payable to the O.P-1 for the booked plot. Thereafter on  30.10.2006 the O.Ps entered into an agreement for sale with the complainant with some clauses mentioned in the said agreement. After execution of the agreement complainant made full and final payment of Rs.1,26,750/- to the O.P towards full consideration of plot no.26 Block-A on 22.6.2007 . Thereafter deed of conveyance was made at Alipore Court and complainant paid Rs.18,675/- in cash to the O.Ps and other expenses of the deed of conveyance. But O.Ps did not hand over original deed of conveyance of plot no.26 to the complainant nor make any development work to the plot of land on Pailan City ,although they assured to hand over the said plot by 31.12.2008 . Thereafter on April 2013 complainant received a letter from the O.Ps that  some problems delay in development work of the plots occurred . It has claimed that inspite of receipt of full consideration money the O.Ps did not demarcate and develop the plot of the complainant till date which amounts  to deficiency in service. Hence, this case with a prayer directing the O.P to pay compensation to the tune of Rs.5 lacs , to demarcate and hand over the plot , cost of Rs.20,000/- etc.

            The O.P-3 contested the case by filing written version and has denied all the allegations leveled against him. It has stated that as a Director of O.P company this O.P-3 in discharge of his duty in good faith executed the deed of conveyance  as claimed by the complainant. It has further stated that this O.P-1 due to some personal inconvenience submitted his resignation to the O.P-1 on 25.6.2010 which was accepted by the company,O.P-1 and he was allowed to leave the company after settlement of the account and thereafter O.P-3 is neither aware nor has got any liability to discharge obligation on behalf of the company. It has further claimed that according to the complaint petition this O.P-3 submits that cause of action of this case arose on 6.5.2013 i.e. after the date of submission of his resignation. So, O.P-3 has no obligation to discharge any duty on behalf of the complainant. Accordingly O.P-3 prays for dismissal of the case against O.P-3.

            The case is running against O.P nos. 1 and 2 in exparte sine they are reluctant to deposit the cost of Rs.2000/- and though filed written version but the same is kept in the record and ultimately due to non-payment of cost the same was not accepted and O.P nos. 1 and 2 did not take any step since 23.12.2015 till 20.7.2016, wherein eight days already elapsed for payment of cost, that is why, case is running in exparte against O.P nos. 1 and 2 for non-payment of cost and written version was not accepted.

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

                                                                        Decision with reasons

            Admittedly O.Ps received consideration money and executed the agreement for sale in favour of the complainant with assurance that Pailan City will be completed in all respect by 31.12.2008 ,for which complainant deposited entire consideration money of Rs.1,86,750/- for plot no.26 Block A in the said project of Pailan City.

            We have perused and found the money receipt issued by the ABS Land Development & Construction Pvt. Ltd. regarding booking money and the remaining amounts . Thereafter Managing Director Tapan Ghosh of O.P-1 also received Rs.675/- for the cost of registration of the said plot. It further appears that deed of sale was also executed on 22.6.2007 in favour of the complainant. But fact remains that said land was not developed nor delivered the actual possession, that is why, complainant is suffering a lot on a dream to built a house in the District of South 24-Parganas  but his all expectation for a shelter in and around Calcutta has go bye due to unfair trade practice of the O.Ps.

            Apart from that, O.P-3 is contesting the case by filing written version which was accepted by this Bench ,wherefrom it derives that he took part at the time of execution of deed of conveyance but thereafter he resigned from the O.P-1 company on 25.6.2010 ,for which he has no liability to deliver the possession and develop the plot and he is not a proper or necessary party .

            But our considered view is that he is a necessary party because he is one of the partners who took part at the time of execution of deed of sale after receiving full consideration money from the complainant. So, his role with the company cannot be brushed aside after his resignation as claimed, because the occurrence took place i.e. agreement was made and booking money was received and thereafter deed of sale was executed on 22.6.2007 when the O.P-3 was one of the directors of the O.p-1 company. But after that if he resigned for his personal inconvenience, the liability which has already occurred before his resignation cannot be brushed aside. If this written version and averment is accepted then our society will be highly effected by this type of unruly O.Ps and they will be encouraged by the act of a judicial proceedings of this bench and one after another arrange for selling the immovable property to any of the party and after adjustment of the entire consideration money they will resign from the company. So, considering all aspect this averment of O.p-3 cannot be accepted because he is also beneficiary of the said amount which has been paid by the complainant. It may be mentioned here that if the entire episode was preceded after his resignation then definitely he has no liability. But fact remains that entire episode i.e. acceptance of entire consideration money , execution of agreement for sale and registration of deed of conveyance was held during the existence of O.P-3 as a direction of the O.P-1 company. So, we are sorry to accept that plea which is another glaring  example of unfair trade practice.

            Be that as it may, we find that all the O.ps are jointly and/or severally and purposely acted deficiency in service and unfair trade practice  to grab the good money  of innocent complainant and thereby complainant failed to get shelter within the periphery of South 24-Parganas.

Hence,

                                                                        Ordered

That  the application under section 12 of the C.P Act, 1986 is allowed on contest against O.P-3 and exparte against O.P nos. 1 and 2.

All the O.Ps are hereby directed jointly and/or severally to hand over the possession after demarcating the plot of land in terms of the deed of conveyance dated 22.6.2007 ,off course, after constructing  the road and other development works in terms of the agreement dated 30.10.2006 and thereafter hand over the peaceful physical possession of the plot  no.A-26 situated at Mouza Chak Rajmolla, Dag no.927, Khatian No.74, measuring about 1800 sq.ft or 2.5 katha within two months from the date of this order , failing which complainant is at liberty to execute the order through this Bench.

The O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs. 5 lacs towards loss and damage sustained by the complainant and further directed to pay cost of Rs.20,000/- to the complainant within that stipulated of two months from this date.

It may be mentioned here that when complainant has prayed for any other relief or reliefs which complainant is entitled to Law and equity, we find that if the O.Ps failed to deliver the said plot , then the O.Ps have to refund the entire consideration money of Rs.1,86,750/- together with interest @18% p.a (from 30.6.2006 upon Rs.60,000/- and the interest @18% p.a from 22.6.2007 upon Rs.1,26,750/-) to till realization.

If the O.Ps jointly and/or severally failed to pay the cost and compensation within the stipulated period, then further interest will carry @10% p.a from the date of default to till its realization and complainant is at liberty to execute the order through this Forum if any departure is made by the O.Ps jointly and/or severally.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P 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 against O.P-3 and exparte against O.P nos. 1 and 2.

All the O.Ps are hereby directed jointly and/or severally to hand over the possession after demarcating the plot of land in terms of the deed of conveyance dated 22.6.2007 ,off course, after constructing  the road and other development works in terms of the agreement dated 30.10.2006 and thereafter hand over the peaceful physical possession of the plot  no.A-26 situated at Mouza Chak Rajmolla, Dag no.927, Khatian No.74, measuring about 1800 sq.ft or 2.5 katha within two months from the date of this order , failing which complainant is at liberty to execute the order through this Bench.

The O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs. 5 lacs towards loss and damage sustained by the complainant and further directed to pay cost of Rs.20,000/- to the complainant within that stipulated of two months from this date.

It may be mentioned here that when complainant has prayed for any other relief or reliefs which complainant is entitled to Law and equity, we find that if the O.Ps failed to deliver the said plot , then the O.Ps have to refund the entire consideration money of Rs.1,86,750/- together with interest @18% p.a (from 30.6.2006 upon Rs.60,000/- and the interest @18% p.a from 22.6.2007 upon Rs.1,26,750/-) to till realization.

If the O.Ps jointly and/or severally failed to pay the cost and compensation within the stipulated period, then further interest will carry @10% p.a from the date of default to till its realization and complainant is at liberty to execute the order through this Forum if any departure is made by the O.Ps jointly and/or severally.

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

 

Member                                               Member                                                                       President