West Bengal

South 24 Parganas

CC/329/2014

Dr. GOUR GOSWAMI, S/O Late Debaki Nandan Deb Goswami. - Complainant(s)

Versus

1. GOPAL KUMAR CHAKI, S/O Late Surya Chaki. - Opp.Party(s)

Sayantani Das

28 Jul 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _329_ OF ___2014___

 

DATE OF FILING : 25.7.2014     DATE OF PASSING JUDGEMENT:  _28.07.2015__

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT              :   Dr. Gour Goswami,s/o late Debaki Nandan Deb Goswami 59, Babubagan Lane, Calcutta – 31.

 

-VERSUS  -

 

O.P/O.Ps                            :    1.   Gopal Kumar Chaki,s/o late Surya Chaki of                                       72B/1, Sarat Ghosh Garden Road, Calcutta – 31.

                                             2.     Smt. Bandana Sengupta,w/o late Amiya Sengupta of 76, Beni Banerjee Avenue, Calcutta – 31.

                                            3.    Smt. Amita Ganguly, w/o Sri Jahar Ganguly of 63B, Mahanirban Road, Calcutta – 29.

                                           4.    Smt. Nandita Bose,w/o Sri Joydeb Bose of 65A, N.S. C Bose Road, Kolkata – 40.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986.

            The short story of the complainant is that initially he was in possession as a tenant in the premises no.76, Beni Banerjee Avenue, Kolkata – 31 and O.P nos. 2 to 4 are the absolute owners of the said premises and they have decided to raise a multistoried building after demolition of the old structure thereon. Accordingly, O.P-1 was entrusted for raising such construction as a developer/contractor and also entered into the agreement with the complainant along with the developer and owner in respect of sale for purchase of a covered space measuring about 300 sq.ft at the ground floor of the said proposed building at a cost of Rs.1,50,000/- . It has claimed that O.P-1 developer after completing the construction work handed over the said 300 sq.ft space on the ground floor of the said premises to the complainant and complainant is enjoying the possession of the said covered space and requested the O.Ps to execute and register the deed of conveyance in favour of the complainant in respect of the covered space at the said building but all requests failed. Complainant also offered and agreed to pay Rs.1,50,000/-to the owner but they did not accept it due to some malafide intention. Complainant tried his level best by sending letter but O.Ps did not pay any heed to it. Hence, this complaint with a prayer to direct the O.P nos. 2,3 and 4 to execute and register the deed of conveyance in favour of the complainant in respect of the schedule property on receiving the consideration amount of Rs.1,50,000/- from the complainant and the O.P-1 developer be directed to stand as a confirming party in the said deed of conveyance and execute and register the deed of conveyance in favour of the complainant and also to issue completion certification to the complainant. It has also claimed compensation to the tune of Rs.50,000/- and litigation cost of Rs.20,000/-. Hence, this case.

            O.P-1 is contesting the case by filing written version and has denied all the allegations leveled against him and it is the specific case of the O.p-1 that this complaint is frivolous ,speculative ,malafide ,harassive one and liable to be dismissed in lemini with cost.

            It is the positive case of the O.P-1 that in terms of the development agreement as developers he has already delivered possession of the flat on 9.10.2013 including the schedule property i.e. the owner’s allocation to the O.P-2 to 4 herein. As such O.P-1 has no liability and/or responsibility in respect of the owner’s allocation including the schedule property in question and prays for dismissal of the case with cost of Rs.5 lacs.

            O.P nos. 2,3 and 4 ,the landlords, also filed written version and have denied all the allegations leveled against them. It is the positive case of these O.Ps that complainant is not a consumer as he has not paid any advance . So, no right has accrued on the complainant to pray for any relief. It is the further case of the O.Ps that O.Ps have illegally encroached the garage space meant for parking cars allotted to the owners by sheer muscle power and force and has illegally occupied additional area of about 150 sq.ft. Complainant will get his share according to the sanctioned plan which was built up and handed over by the O.P-1 strictly according to the sanctioned plan of the KMC. There is no deficiency in service and prays for dismissal of the case.

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

                                                                        Decision with reasons

            There is no dispute that as per agreement dated 14.8.2008 between the developer and land owners the purchaser who is the complainant desired to purchased a space measuring 300 s.ft more or less built up area in the ground floor of the new G+3 multi storied building which will be sanctioned as caretaker room or other room in front of the portion of the ground floor and it ahs further observed in that agreement at page 4 that the said 300 sq.ft more less in the ground floor of the premises along with all common facilities and benefits together with undivided proportionate individual share of land of the said premises attributable to the said space together with all easement rights etc and purchaser/tenant of the said second part will pay Rs.500/- per sq.ft on the built up area as construction cost to the owners and in turn will give a newly allocated space to the tenant of the second part. This is the agreement.

            So, this agreement is binding upon the parties.  So if anything befitted from that agreement with the complainant regarding 300 sq.ft built up area in the ground floor will be amount to deficiency in service . It is not the headache of the complainant to know whether the developer and owners collusively submits the sanctioned plan showing less sq.ft than the agreement. If that be so, definitely it will come out from the owner’s allocation. However, complainant has stated that he is not aware about the sanctioned plan and we also held that it is not the duty and headache of the complainant to know what quantum of sq.ft has been shown before the sanctioning authority of KMC by the developer as well as on behalf of the land owners. Complainant will only see whether 300 sq.ft built up area is in his possession or not and further duty of the complainant is to send or hand over Rs.50,000/- each to the three land owners in terms of the agreement. We find that some photocopies of bank drafts are lying in the case record along with the postal receipts. We are not aware whether the said bank drafts were encashed or not since the complainant did not file any bank account showing the same. It is mentioned here that State Bank of India already has given one certificate regarding two bank drafts wherein status is unpaid in respect of Bandana Sengupta and Nandita Bose but the other status of the land owners is not known to us that is Amita Ganguly.

            Be that as it may, the Ld. Commissioner’s report clearly shows the possession of the complainant is in the ground floor east to west as a doctor’s chamber covered with pacca structure on the eastern glass windows with steel structure are fitted.

            It further appears that complainant has filed one application on 16.6.2015 ,wherein it has mentioned that he is agreed to accept 220 sq.ft built up area in the east and west side and also willing to pay Rs.1,10,000/- for the for the said 220 sq.ft built up area @ 500/- sq.ft in terms of the agreement.

            Accordingly, it is

                                                                        Ordered

That the application under section 12 of the C.P Act is allowed in part on contest against the contesting O.Ps and exparte against the rest.

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of 220 sq.ft built up area in the ground floor east and west side demarcating the said portion so that the question of encroachment does not crop up in the near future within 45 days from the date of this order, failing which, complainant is at liberty to get the deed of conveyance executed and registered through the machinery of the Forum ,subject to payment of Rs.1,10,000/- in the name of the owners in equal shares i.e. O.P nos. 2 to 4.

It may be mentioned here that if any of the O.Ps ( O.P nos. 2 to 4) do not accept their share then the said amount will be deposited in the Forum.

If the deed of conveyance is not executed and registered within 45 days then compensation amount will be imposed against all the owners and developers to the tune of Rs.10,000/- each along with litigation cost of Rs.2,500/- each . Thus the total compensation amount is fixed at Rs.40,000/- and litigation cost is Rs.10,000/- which will be in force after completion of 45 days , not before that.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement 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 is allowed in part on contest against the contesting O.Ps and exparte against the rest.

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of 220 sq.ft built up area in the ground floor east and west side demarcating the said portion so that the question of encroachment does not crop up in the near future within 45 days from the date of this order, failing which, complainant is at liberty to get the deed of conveyance executed and registered through the machinery of the Forum ,subject to payment of Rs.1,10,000/- in the name of the owners in equal shares i.e. O.P nos. 2 to 4.

It may be mentioned here that if any of the O.Ps ( O.P nos. 2 to 4) do not accept their share then the said amount will be deposited in the Forum.

If the deed of conveyance is not executed and registered within 45 days then compensation amount will be imposed against all the owners and developers to the tune of Rs.10,000/- each along with litigation cost of Rs.2,500/- each . Thus the total compensation amount is fixed at Rs.40,000/- and litigation cost is Rs.10,000/- which will be in force after completion of 45 days , not before that.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President