DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

      C.C. CASE NO. _118_ OF ___2015

DATE OF FILING : 3.3.2015                       DATE OF PASSING JUDGEMENT:  _18.5.2018_

Present                        :   President       :   Ananta Kumar Kapri

                                        Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT        :    Pijush Kanti Gayen, son of late Bhupati Gayen of Govt. College Staff Quarter Church Lane, P.S Krishnanagar, Dist. Nadia, Pin-741101.

•  VERSUS  -

O.P/O.Ps                            :   1. Bindhachal Construction, represented by its Proprietor Sri Mithun Mistry, son of Sri Sukumar Mistri of Yadav Sardar Road, Baikunthapur, P.O Rajpur, P.S Sonarpur, Kolkata – 700 149.

                                              2. Sri Karunamoy Nath

                                              3. Sri Prabir Kumar Nath

                                              4. Sri Ganesh Chandra Nath

                                              5. Sri Dinesh Chandra Nath

                                              6. Sri Kamalesh Nath

                                              7. Sri Samaresh Nath

                                              All sons of late Harendra Nath of Sonarpur, P.S Sonarpur, Dist. South 24-Parganas.

                                              8.   Sri Subhasish Mandal, son of Sri Mahadev Mandal of B-1/5, 002, Prantik, Peerless Housing Society, P.S Sonarapur, Kolkata – 150. South 24-Parganas.

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                                                            J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

     The nub of the facts leading to the filing of the instant case by the complainant is that an agreement for sale was executed by and between the complainant and one Sri Mithun Mistri, the Proprietor of O.P-1 on 2.9.2012 and thereby O.P-1 agreed to sell a self contained flat as succinctly described in schedule to the complaint for a total consideration price of Rs.17,80,000/- ,out of which Rs.7,85,000/- has been paid to the O.P-1 by the complainant on different dates i.e on 2.9.2012, 2.12.2012 and 30.6.2012. It was agreed  by O.P-1 that the construction will be completed within 12 months of the execution of the agreement for sale. But , O.P-1 did not complete the project within the said time schedule. In the meantime, he transferred the project to O.P-8 by a Deed of Assignment dated 21.9.2014. O.P-8 did not hand over the possession of the flat to the complainant, nor did he register the flat in favour of the complainant. He tried to sell the case flat to others and, therefore, the complainant has filed the instant case ,praying for registration of the flat , possession of the same and also for compensation etc. Hence, this case.

     None of the O.Ps turned up to contest the case and, therefore, the case is heard exparte against them. But O.P-8 has filed one written statement and the same is kept in the record for consideration. As per the version of his written statement he did not enter into any contract with the complainant as alleged and there is no privity of contract between the complainant and him. No communication was also ever made by the complainant with him. So, according to him, the complaint should be dismissed in limini.

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

1. Are the O.Ps guilty of deficiency in service as alleged?
2. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

     Evidence led by the complainant is kept in the record for consideration.

DECISION WITH REASONS

Point no.1 & 2 :-

The agreement for sale dated 2.9.2012 is executed by Mithun Mistri i.e the Proprietor of O.P-1 and it has been stated by the complainant in his complaint . A perusal of the agreement for sale also reveals that the said agreement is executed by the said Mithun Mistri. It is mentioned in the agreement that the possession of the flat is to be handed over to the complainant by the O.P-1 within 12 months of execution of the agreement for sale. It is also mentioned in the agreement that Rs.7,85,000/- has been paid to O.P-1 by the complainant out of Rs.17,80,000/- .

As per terms of the agreement, the O.P-1 i.e Mithun Mistri is bound to hand over the case flat to the complainant having received from the complainant the balance consideration price. But the said term of the agreement has not been honoured by the O.P-1. What he has done? He has , in the meantime, assigned his right under the contract to O.P-8 by a Deed of Assignment dated 21.9.2014. Now O.P-8 has stepped into the shoe of the said Mithun Mistri. The question which requires consideration now, is whether O.P-1 i.e Mithun Mistri has been absolvedof all his liabilitiesarising out of the contractmade between him and the complainant. At the same time, it is to be seen whether O.P-8 i.e the Assignee from Mithun Mistri is liable to fulfill the obligation of the contract executed between complainant and Mithun Mistri.

Mithun Mistri has assigned his liability under the contract to O.P-8. The liability under a contractcannot be assigned to any one without the consent of the promisee. Mithun Mistri should have taken the consent of the complainant while executing the deed of assignment in favour of O.P-8. According to the provision of Section 40 of the Contract Act, the burden of liability to a contract cannot be assigned without the consent of the other parties i.e the promise cannot be compelled by the promisor to accept the performance of the contract from any other promisor.

In the instant case, no consent of the complainant has been taken by the said Mithun Mistry while executing the Deed of Assignment in favour of O.P-8. So, Mithun Mistri still remains liable to the complainant for fulfillment of the obligation arising out of the agreement dated 2.9.2012 .

There is also another aspect to be considered in this regard. Mithun Mistri , the O.P-1 executed the agreement dated 2.9.2012. It is clearly stated in the agreement for sale that the term “Developer” includeshis heirs, successors, ,executors ,administrators ,legal representative and assignee. O.P-8 is the assignee from Mithun Mistri and as such, he being the assignee of Mithun Mistri is supposed to discharge all the obligation of Mithun Mistri which arose out of the agreement for sale dated 2.9.2012. So, O.P-8 is also bound to fulfill the obligations of the said agreement for sale.

Registration of the flat has not been effected in favour of the complainant. O.P nos. 2 to 7 are land owners and they are required to effect registration of the case land to the complainant. Except this, they have no other obligation required to be fulfilled towards the complainant.

Now to calculate the loss sustained by the complainant due to non-registration of the subject flat in favour of the complainant. It is found that sale agreement was executed on 2.9.2012 by the O.P-1 and it was agreed by him that the possession and registrationof the subject flat would be delivered and completed within 12 months from the date of execution of the said agreement. Since then, about six years have already passed away and by this time registration fee and stamp duty have gone up much more . The complainant has certainly suffered tremendous loss as he is required to pay enhanced registration fee and enhanced stamp duty for the purpose of registration.

Regards being had to all these, we are inclined to quantify this loss at Rs.2 lac and the O.P no.1 and O.P-8 will have to pay this compensation amount to the complainant. During this period of about six years, the complainant has certainly undergone tremendous harassment and mental agony for non-execution and registration of the subject flat in favour of him by the developers. He has also sustained a good amount of mental agony during this period for negligent act of the developers. The developers will have to pay compensation on this count.

In the result, the case succeeds.

Hence,

That the complaint case be and the same is decreed exparte against all the O.Ps with a cost of Rs.10,000/- to be paid by the developers to the complainant.

All the O.Ps are directed to effect registration of the deed of conveyance in favour of the complainant in respect of the subject flat described in the schedule to the complaint and also to deliver possession of the said flat to the complainant within one month of this order ,failing which complainant is at liberty to get the sale deed registered and also to recover possession of the flat with the machinery of the Court.

O.P nos. 1 and 8 ,who are jointly and severally liable, are directed to pay Rs.2 lacs as compensation for loss sustained by the complainant due to enhancement of registration fee and stamp duty , Rs.50,000/- as compensation for harassment and mental agony caused to the complainant and the litigation cost as referred to above within a month of this order, failing which the compensation amount and the amount of cost as referred to above will bear interest @10% p.a till full realization thereof.

     Let a free copy of this order be supplied /sent to the parties concerned at once for taking necessary action.    

                                                                                                                   President

I / We agree

                               Member                                                    Member                                                                                                             

Dictated and corrected by me

                                President