West Bengal

South 24 Parganas

CC/132/2015

Smt. Binapani Dey. W/O Lt. Santosh Dey. - Complainant(s)

Versus

1. Kundu Construction Prop. Tandrani Kundu. - Opp.Party(s)

Ramanuj Bhattacharjee.

27 May 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

         C.C. CASE NO. _132_ OF ___2015_____

 

DATE OF FILING : 19.3.2015     DATE OF PASSING JUDGEMENT:  27.5.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :   Smt. Binapani Dey, w/o late Santosh Dey of Ramkirishna

                                               Puanibesh, P.S. Jadavpur, Kolkata – 32.

 

-VERSUS  -

 

O.P/O.Ps                            :   1.     Kundu Construction, Prop. Tandrani Kundu of H/3,

                                               Baghajatin Colony, P.,S. Regent Estate, Kolkata – 92.

                                                2.    Tandrani Kundu,w/o Arabinda Kundu of H/3, Baghajatin

                                               Colony, P.S. Regent Estate, Kolkata – 92.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant complaint under section 12 of the Consumer Protection Act, 1986 has been filed by the complainant against the O.P with allegation of deficiency in service.

In a nut-shell, the case of the complainant is that the complainant, being absolute owner of a land, with intention to develop a building on that land, entered into a development agreement on 28.3.2006 with a Developer/O.P namely Kundu Construction (O.P-1) and O.P-2 is the Proprietor of O.P-1. As per the aforesaid development agreement O.P/Developer is duty bound to hand over two flats measuring about 600 sq.ft and 400 sq.ft respectively and two garage space measuring 120 sq.ft each. In fct on 24.6.2013 O.Ps handed over possession of one garage space measuring 80 sq.ft and also a flat measuring about 400 sq.ft . But even after repeated requests of the complainant, O.Ps/Developer does not hand over the possession of one flat measuring 600 sq.ft and also a garage measuring 120 sq.ft to the complainant till the date of final hearing of argument of the instant case.

Hence, the complainant has no other alternative but to file the instant case before this Forum for redressal of his dispute with prayer as mentioned in the complaint petition.

Inspite of service of summon the O.Ps did not appear ,for which the case proceeded exparte.

After scrutinizing vividly every nook and corner of the instant case and hearing minutely the case of the complainant from her Ld. Advocate, following points are in lime light for consideration:

 

 

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

Point no.1:-  From the record it appears that complainant being a land owner entered into a development agreement on 28.3.2006 with the O.P developer. As per the development agreement O.P promised to deliver two flats measuring 400 sq.ft and 600 sq.ft and two garage space of 80 sq.ft and 120 sq.ft. respectively. Subsequently on 24.6.2013 O.P/Developer handed over possession of one flat measuring 400 sq.ft and a garage space measuring 80 sq.ft but even after repeated requests of the complainant time and again O.Ps did not hand over the flat measuring 600 sq.ft and one garage space of 120 sq.ft till the date of hearing of argument of the instant case. Therefore, in this case we should consider the land in question of the complainant/landowner as consideration of the flats and garages and developer/O.ps are duty bound to deliver the possession and to execute and register the deed of conveyance  of that flat and the garage within the legitimate period. Therefore, we are of the opinion that the complainant is a ‘consumer’ as per section 2(1)(d)(ii) of the C.P Act and O.P is the service provider as per Section 2(1)(o) of the C.P Act, 1986.

            The Point no.1 is discussed and the same is in favour of the complainant.

            Point nos. 2 and 3:-   Point nos. 2 and 3 are discussed altogether as it is convenient to adjudicate the instant case.

            Before going into the merit of the case it is needed to mention here that   complainant entered into the development agreement in the year 2006 and as per compliance of the Development Agreement O.Ps handed over possession of one flat and one garage on 24.6.2013 . It is settled principle of Law that cause of action is bundle of facts and considering the handing over possession of the above mentioned flat and garage on 24.6.2013 as part cause of action, we are of the opinion that instant case is not time barred as per section 24A of the C.P Act.

            As per Development Agreement, the developer should hand over the possession of two flats and two garages within the legitimate time. But he did not do so and only handed over one flat and one garage space and failed to hand over possession of one flat measuring 600 sq.ft and one garage space of 120 sq.ft and thus the developer has committed negligence and deficiency in rendering services towards the complainant/consumer.

            To decide whether the complainant is eligible for direction upon the O.P to compensate the complainant following discussions are advised:-

            It is beyond doubt that with an expectation to have two flats and two garages she gave her plot to the developer for developing the premises. But due to negligence, inaction and deficiency in service of the O.P she could not get one flat and garage though the developer promised to hand over the same as per development agreement . It is also crystal clear that for that deficiency of service of the O.Ps/developer complainant has to suffer mental agony , harassment, financial loss and she is entitled to be compensated by the O.P/developer.

            Therefore, we are of the opinion that the O.P s are jointly and severally duty bound to hand over the possession of one flat and one garage in question and also to compensate the complainant for the deficiency in service of the O.Ps which has caused mental agony, financial loss , harassment to the complainant.

            Thus the point nos. 2 and 3 are discussed  and both are in favour of the complainant.

            Therefore, the case of the complainant is succeeded against the O.Ps.

            Hence,

                                                            Ordered

That the case is allowed exparte against the O.Ps with cost.

O.Ps are jointly and/or severally directed to hand over possession of one flat measuring 600 sq.ft and one garage of 120 sq.ft to the complainant at the suit premises and to execute and register the deed of conveyance in favour of the complainant in respect of the above mentioned property and O.P Nos. 1 and 2 jointly and/or severally are directed to pay compensation to the tune of Rs.50,000/- towards mental agony, harassment suffered by the complainant due to negligence and deficiency in service on the part of the O.Ps and also to pay Rs.5000/- towards cost of the case ,within 45 days from the date of this order, failing which, O.Ps jointly and/or  severally shall pay Rs.20/- per day from the date of expiry of 45 days till its realization.

 

                                                            Member                                               President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

Ordered

That the case is allowed exparte against the O.Ps with cost.

O.Ps are jointly and/or severally directed to hand over possession of one flat measuring 600 sq.ft and one garage of 120 sq.ft to the complainant at the suit premises and to execute and register the deed of conveyance in favour of the complainant in respect of the above mentioned property and O.P Nos. 1 and 2 jointly and/or severally are directed to pay compensation to the tune of Rs.50,000/- towards mental agony, harassment suffered by the complainant due to negligence and deficiency in service on the part of the O.Ps and also to pay Rs.5000/- towards cost of the case ,within 45 days from the date of this order, failing which, O.Ps jointly and/or  severally shall pay Rs.20/- per day from the date of expiry of 45 days till its realization.

 

                                                            Member                                               President