DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN COMPLEX, BARUIPUR,KOLKATA-144
C.C. CASE NO. _57 OF ___2015____
DATE OF FILING : 3.2.2015 DATE OF PASSING JUDGEMENT: 21/03/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Smt. Sharmi Basu
COMPLAINANT : Mr. Kali Shankar Dutta,s/o late Santosh Kumar Dutta of 1/3, Picnic Park, 196, Picnic Garden Road, P.S. Tiljala, Kolkata – 39.
-VERSUS -
O.P/O.Ps : 1. Bengal Greenfield Housing Development Company Limited at Hi-Tech Chambers of 84 1B, Tapsia Road (South) P.S. Tapsia, Kolkata – 46.
2. Greenfield City Projects Ltd. at No.E-3/398, Ward no.14, Shibrampore Road, P.S. Maheshtala, Kolkata – 141
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J U D G E M E N T
Smt. Sharmi Basu, Member
In a nutshell the case of the complainants is that the West Bengal Housing Board in order to build residential accommodation in or around the then Calcutta acquired 45.69 acre in Mouja Parui, Chakjotshibrampur, Dist. South 24-Parganas and entered into a development agreement with the O.Ps and executed a power of attorney in favour of the O.Ps on 21.2.2007 appointing O.Ps as a builder of the Housing Project for development of the land comprising flats of different categories in different portions namely HIG portion, MIG portion and LIG portion and the entirety of the said Housing project is known as “Greenfield City”.
Complainant applied for purchasing a flat in the Greenfield City being application no.1210 dated 4.3.2010 by depositing application money of Rs.73,638/- . The O.Ps by a letter dated 5.5.2010 informed the complainant that one flat measuring 895 s.ft super built up area more or less on the 3rd floor unit no.3C of Block no.11 and one covered car parking space on the ground floor has been allotted for the complainant through a lottery held on 23.3.2010 at GD Birla Sabhaghar and the price of the said flat and covered car parking space is Rs.14,72,750/-. Complainant thereafter paid Rs.17,76,478/- i.e. more than the consideration money to the O.P. On payment of the entire consideration amount complainant requested the O.Ps to execute and register the deed of conveyance ,for which O.P handed over a draft copy of deed of conveyance to the complainant. On going through the draft copy of the deed of conveyance it appears to the complainant that O.Ps shall not sell the car parking space but they have given the right to keep the car at the car parking space, to which complainant was not agreed and requested the O.Ps to rectify the draft deed of conveyance. But the O.Ps created pressure upon the complainant to approve the draft deed of conveyance. O.Ps also avoided to execute and register the deed of conveyance and tried to negotiate with the 3rd parties to sell that flat. Complainant sent legal notice on 3.6.2013 requesting the O.ps to execute and register the deed of conveyance but it yielded no result. Hence, this case praying for execution and registration of the deed of conveyance in respect of the flat in question , to hand over possession of the suit property, compensation of Rs.50,000/-, cost etc.
The O.Ps contested the case by filing written version ,denying all the material allegations and contending inter alia that in the allotment letter it was specifically mentioned that car parking space will be identified on the date of possession of the flat and complainant accepted the terms and conditions of the allotment letter but failed to pay the subsequent installment payments as set out in the said provisional allotment letter for which they terminated the said provisional allotment of the flat together with the covered car parking space by a letter dated 1.8.2011 and refunded a sum of Rs.2,20,913/- to the complainant by cheque no.164016 dated 19.7.2011. But complainant several times over telephone and by meeting the office requested for withdrawing the cancellation of allotment for which ultimately the O.Ps agreed to re-allot the flat no.3C in the 3rd floor Block no.11 to the complainant who also paid the due amount although the interest accrued on the due amount was not paid. However, complainant was sent draft copy of the deed of conveyance but he deliberately neglected to execute and register the deed of conveyance . O.Ps pray for dismissal of the case.
Points for Decision
- Whether the complainant is a Consumer or not.
- Whether there is any deficiency in service on the part of the O.Ps or not.
- Whether the complainant is eligible to get relief as prayed for partly or fully.
Decision with reasons
All the points are taken together as they are interlinked .
After scrutinizing the complaint, written version, BNA of the complainant and all other documents brought before this Forum by both the parties, it is crystal clear that complainant already paid Rs.12,97,750/- for a flat and Rs.1,75,000/- for covered car parking space to the O.Ps. It is also crystal clear that though the complainant has failed to deposit the amount towards the consideration within the stipulated period , but for the reasons best known to the O.Ps, they have ultimately received the full consideration money from the complainant. On the contrary till the date of hearing of argument of the instant case, the O.Ps have not executed and registered the deed of conveyance with respect to the property in question.
It is an admitted fact that a draft copy of deed of conveyance was sent to the complainant for execution and registration of the same but the same has not yet been approved by the complainant on the ground that from that draft copy of deed of conveyance it was revealed to the complainant that the O.Ps instead of selling the car parking space they are only ready to give the right to keep the car at the car parking space. In this regard, this Forum is of the opinion that firstly as per the agreement the O.Ps are bound to hand over the right ,title and interest of a car parking space and moreover , we are highlighting a citation of the Hon’ble Supreme Court of India vide Civil Appeal no. 2544 of 2010 decided on 31.8.2010. In this landmark Judgment Hon’ble Apex Court has been pleased to observe with elaborate discussion that car parking space should be covered by three walls and roof. Therefore, we have no hesitation to hold that after receiving the total consideration for the car parking space, it is the duty of the O.Ps to hand over the car parking space in question as per agreement for sale and also to execute and register the deed of conveyance of the property in question as per the agreement for sale since the aforesaid agreement for sale is binding upon the parties as per the Contract Act.
Therefore, in light of the above discussion we have no hesitation to hold that aforementioned inaction of the O.Ps tantamount to highhandedness and deficiency in rendering services towards the complainant/consumer and they should execute and register the deed of conveyance in favour of the complainant in respect of the suit property described in schedule B of the petition of complaint and also to deliver possession of the suit property as a whole including flat and the car parking space. It is also beyond doubt that even after payment of consideration the complainant cannot enjoy the total property in question and this has caused financial loss ,mental agony and harassment of the complainant, for which, the O.Ps are jointly and/or severally liable to aptly compensate the complainant.
Thus all the points are discussed and the same are in favour of the complainant and the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the O.Ps with cost.
The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the suit property described in schedule B of the complaint petition and to deliver possession of the suit property in its entirety described in “schedule B” of the complaint petition to the complainant within 45 days from the date of this order and the car parking space should be covered by three walls.
The O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs.15000/- and cost of Rs. 10,000/- to the complainant within 30 days from the date of this order, failing which O.Ps are jointly and/or severally directed to pay Rs.50/- per day from the date of default till realization and out of that amount 50% will be given to the complainant and rest 50% will be deposited in the Consumer Legal Aid Fund.
Let a plain copy of Judgment be supplied to the parties free of cost as per rule.
Member President
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the case be and the same is allowed on contest against the O.Ps with cost.
The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the suit property described in schedule B of the complaint petition and to deliver possession of the suit property in its entirety described in “schedule B” of the complaint petition to the complainant within 45 days from the date of this order and the car parking space should be covered by three walls.
The O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs.15000/- and cost of Rs. 10,000/- to the complainant within 30 days from the date of this order, failing which O.Ps are jointly and/or severally directed to pay Rs.50/- per day from the date of default till realization and out of that amount 50% will be given to the complainant and rest 50% will be deposited in the Consumer Legal Aid Fund.
Let a plain copy of Judgment be supplied to the parties free of cost as per rule.
Member President
