Smt. Sangita Paul, Member

This is a case filed by Sujan Kumar Gain, S/o. Shri Chitta Ranjan Gain of Sampamirzanagar, P.O. – Sarkarpool, P.S. – Mahestala, Dist. – 24 Pgs (South), Kolkata – 700 143  against Gopal Chandra Addya, Radha Kumar Das, Madhusudan Das, Lakshmi Narayan Das, Smt. Swapna Dutta, Smt. Purnima Das, Smt. Chaitali Naskar, Smt Jayanti Mondal, Sri Sukanta Sen, Smt. Manika Addya, Sri Tanmoy Addya and Sri Ashim Mondal with a prayer for a direction of Ad-interim order of stay restraining the OPs 1-11 and OP No.12 and their agents from alienating the scheduled property or any part thereof to any 3^rd party till disposal of the complaint case, to direct the Additional Registrar of Assurances III, Kolkata for issuing a certified copy of the Power of Attorney being no.00468 for the year 2014 to the Commission upon an application made by the complainant, to execute and register the deed of conveyance of the schedule-mentioned property within one month from the date, in favour of complainant, i/d the scheduled property may be executed and registered by an officer, appointed by the court in favour of the complainant to pay compensation to the tune of Rs.1,00,000/- with 18% interest till the date of payment, it caused  mental agony due to negligent delay.  

The OP is Sri Gopal Chandra Addya, Son of Late Jagat Kumar Addya.  The address is 38/1B, New Ballygunge Road, P.O. – Ballygunge, P.S. – Tiljala, Kolkata-700 039.

OP No.2 Radha Raman Das, S/o. Late Lakshmn Chandra Das.  The address is Manikpore, Naskarpara, P.O.-Harinavi, P.S.-Sonarpur, Kolkata-700 147, Dist.-24 Parganas(South).

OP No.3 is Madhusudan Das, S/o. Late Lakshman Chandra Das.  The address is same as OP No.2.

OP No.4 is Lakshmi Nrayan Das, S/o. Late Lakshman Chandra Das.  The address is same as OP No.2.

OP No.5 is Smt. Swapna dutta, wife of Subhas Dutta.  The address is 63A, Alipore Road, P.O. – Alipore, P.S. – Alipore, Kolkata-700 027.

OP No.6 is Smt. Purnima Das, wife of Late Madhusudan Das.  The address is same as Op No.2.

OP No.7 is Chaitali Naskar, W/o. Krishann Naskar.  The address is same as OP No.2.

OP No.8 is Jayanti Mondal, W/o. Udayan Mondal, D/o. Late Binapani Dhar.  The address is 16 Dum Dum Road, Block No.05, Flat No.16, P.S.-Dum Dum, Kolkata-700 030.

OP No.9 is Sukanta Sen, S/o. Late Prahlad Sen.  The Address is 51, Doctor’s Lane, P.O.-Entali, P.S. – Taltola, Kolkata-700 019.

OP No.10 is Smt. Manika Addya, W/o. Late Tulsi Chandra Addya.  The address is 38/1B, Belia Danga  2^nd Lane, Kolkata-700 039.

The complainant by filing this case states that the predecessor of the OPs 1, 2, 3, 4. 5, 6 7, 8, 9, 10 and 11 are the land owners and OP No.12 is the Developer.  OP No.12 entered into an agreement for sale on 25.05.2011 with the complainant to sell and develop the scheduled property.  The land measured 01 cottah 08 chittacks, more or less, comprised in Mouza – Sampamirzanagar Re Sa No 360 Touzi No.09, J.L. No.11 Parganas Magura, R.S Dag No.478, R.S. Khatian No.596, L.R. Settlement Kri Khatian No.728 and 644 at present under Ward No.13 of Maheshtola Municipality.  P.S. – Maheshtala, Dist. – 24 Parganas (South).  The complainant has already paid Rs.50,000/- towards Earnest Money as per demand of the OP No.12 and the complainant is ready to pay the remaining consideration amount of Rs.2,12,500/- before the execution of the Registered Deed of Sale in favour of OP No.12.  According to the terms and conditions of the said agreement OP No.12 are bound to execute the Deed of Sale in favour of the complainant.  OP No.2 was supposed to construct a bridge over the existing canal to enter Sampamirzanagar.  OP No.12 was supposed to hand over the developed land following Registration of Deed of Conveyance.  The bridge was constructed by the Development Authority.  OP No.12 neither registered the Deed of conveyance in the name of the complainant, nor did he hand over the possession of the property to the complainant.  OP No.12 was not ready to hand over said plot to the complainant.

The cause of action arose on 16.06.2013 and finally on 04.03.2019 when the OPs neglected to comply the clauses of the agreement.

Hence, the complainant prays for restraining the OPs 1 to 11 and OP No.12 from alienating the schedule mentioned property to any third party till disposal of the petition directing the OP No.12 to furnish all the documents regarding the right, title and authority of the OPs over the properties, for executing the Registered Deed of Conveyance of the schedule mentioned property within one month from the date of this order in favour of the complainant.  The complainant also prays for appointing an officer on behalf of the Commission for executing and registering the Deed of Conveyance in favour of the complainant.  The complainant also prays for directing the OPs to pay Rs.10,00,000/-  with 18% interest for causing extreme financial loss and to pay Rs.10,00,000/- with 18% interest till the date of payment for causing mental agony.

The instant case was filed on 11.12.2019. The case was admitted on 23.12.2019.  On 18.02.2020, the complainant prays for paper publication.  The prayer is allowed.  On 09.07.2020, the notice was published in Sambad Pratidin as because S/R in respect of the OPs was not complete.  On 14.09.2020, the written version was not filed by the OPs.  Hence, the case proceeded ex-parte against the OPs.  On 01.12.2020, the complainant files Evidence on affidavit.  On 08.03.2021, the complainant filed BNA.  The complainant filed supplementary Evidence on 06.04.2021.  On 26.10.2021, argument was heard.  For proper adjudication the cases, further hearing was necessary.  Argument was again heard on 16.02.2022.  Again argument was heard on 13.01.2023 for the ends of the justice.  Accordingly, we proceeded for giving judgement.

Points for consideration :-

1. Is the complainant, a consumer?
2. Are the OPs guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decision with reasons :-

Point No.1:- 

The complainant entered into an agreement for sale with Op No.12 the Developer on 25.05.2011.  OPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 are the Landowners.  OP No.12 is the Developer and Power-of-Attorney-Holder. The complainant was supposed to purchase a developed land measuring 1 cottah 8 chittacks.  The complainant made payment of Rs.50,000/- and an amount of Rs.2,12,500/- is outstanding.  As the complainant made payment, he is a consumer U/S2(7) of C P Act, 2019. 

So, the 1^st point is decided in favour of the complainant.

Point No:2 : 

The complainant is an intending purchaser of land measuring 1 cottahs 8 chittacks.  The schedule of land is as follows:- Mouza - Sampamirzanagar, Re Sa No.360, Touzi No.09, J.L.No.11, Pargana-Magura, R.S. Dag No.478, R.S. Khatian No.596, L.R. Settlement Kri Khatian No.728 and 644 at present under Ward No.13, of Maheshtala Municipality, P.S. – Maheshtala, Dist.-24 Pgs (South). Out of Rs.2,62,500/- the complainant paid Rs.50,000/-.  The complainant was desirous of making payment of the outstanding amount of Rs.2,12,500/- .  In the meantime the price of the land in question was increased and the cost of per cottah is fixed at Rs.4,00,000/-.  After fixation of the entire price the complainant made payment of Rs.50,000/-. It appears that the complainant would purchase the said land.  The OPs increased the price for illegal gain.  It was their mala fide intention of gaining more by selling the land to other purchaser.  OP No.12 executed the Deed of Conveyance with the complainant.  OP No.12 cannot sell the subject property to other intending purchasers.  It is nothing but unfair trade practice adopted by OP No.12.  OP No.12 tried to fulfill his mala fide intention.  The complainant tried for several time to execute the Deed of Conveyance in his name.  The complainant made representations for several times to execute the same but OP No.12 is deficient in rendering service.  A considerable amount was paid; still OP No.12 is reluctant to execute the sale deed.  Hence, it appears that OP No.12 is deficient in providing service to the complainant.  

So the 2^nd point is decided in favour of the complainant and against the OPs.

Point No.03 :-

The complainant made payment for the land in question measuring 1 cottah 8 chittacks.  He paid Rs.50,000/- .  the complainant is desirous of purchasing the land by giving outstanding amount of Rs.2,12,500/-.  The OPs did not act according to the law.  The OP No.12 wants to sell the land to other intending purchaser.  All on a sudden, the OP No.12, the developer informed that the cost of the land has been increased to Rs.4,00,000/- due to escalation of cost.  The complainant wanted to get the deed of conveyance executed and registered in his favour.  The OP No.12 is not in a position to execute and register the same in favour of the complainant.  This leads to mental agony and anxiety of the complainant.  The complainant is harassed by the OPs.  The OP No.12 did not execute & register the said plot of land to the complainant.  The activity of OP No.12 is the cause of anxiety of the complainant and this prompted the complainant to lodge this case. By spending money the complainant experienced mental pain and agony.  Hence he is entitled to get relief as prayed for. 

So, 3^rd point is decided in favour of the complainant and against the OPs. 

In the result, the complaint case succeeds.

Hence, it is,

                                                                                           ORDERED

That the complaint case be and the same is allowed ex-parte against the OPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 with cost of Rs.40,000/- (Rupees Forty Thousand).

OPs 1-11 and 12 (the developer) are permanently restrained from alienating the schedule mentioned property or any part thereof to any 3^rd Party excepting the complainant.

That the OP No.12 is directed to furnish all documents regarding the right, title and authority of the OPs 1-11 over the property. 

That the OPs 1-11 and OP No.12 are directed to execute and register the schedule mentioned property in favour of the complainant within 45 days from the date of this order and complainant is also directed to pay the outstanding amount of Rs.2,12,500/-.

Alternatively, complainant is at liberty to take necessary steps for registration of the schedule mentioned property in favour of the complainant by the machinery of the Commission.

That the OP No.12 is directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) with 10% simple interest  w.e.f. 04.03.2019 till disposal of the case within 45 days from the date of this order for deficiency in service, mental pain, agony and harassment suffered by the complainant.

That the cost of litigation of Rs.40,000/- is to be paid by the OPs.1, 2, 3, 4, 5, 6, 7. 8, 9, 10, 11 and 12 within the stipulated period of 45 days. 

That the complainant is at liberty to put the order into execution if the orders are not complied with within the stipulated period of 45 days. 

Let a copy of the order be supplied to the parties concerned free of cost.

That the final order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.  

               Sangita Paul             

                   Member