West Bengal

South 24 Parganas

CC/71/2013

1. SRI MAYA SHANKAR JHA. - Complainant(s)

Versus

1. MESSERS. ARYAN CONTRADE ( PVT) LTD. - Opp.Party(s)

09 Sep 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _71_ OF ___2013__

 

DATE OF FILING : 13.2.2013                     DATE OF PASSING JUDGEMENT:  9/9/16

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Subrata Sarker

                                                                             

COMPLAINANT             :        1. Sri Maya Shankar Jha, s/o Sri Rajendra Jha

2. Smt. Meera Jha,w/o Sri Maya Shankar Jha  , both of Kinnar Apartment Flat no.C-1, 1^st Floor, premises no.164, Bansdroni Park, P.S. Regent park, Kolkata – 70.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.     Messers Aryan Contrade (Pvt)Ltd. at 130, Block-C, Bangur Avenue, P.S. Lake Town, Kolkata – 55.

                                            2.     Sri Rakesh Singh,s/o Yogendra Narayan Singh of 130, Block-C, Bangur Avenue, P.S. Lake Town, Kolkata – 55.

                                           3. Smt. Ishani Dutta,w/o Sri Sambhunath Dutta,d/o late Sisir Kumar Basu of 2/.1/C, Madhav Chatterjee Lane, Kolkata – 20.

                                           4.    Sm. Sibani Baksi,w/o late Subrata Bakshi and d/o late Sisir Kumar Bsu of 35, Chandranath Chatterjee Street, P.S. Bhowanipore, Kolkata – 25.previously 1/47, Ashoke Nagar Road, Kolkata – 40.

                                           5.    Smt. Haimanti Basu (nee Banerjee),w/o Sri Subhomoy Banerjee and d/o late Sisir Kumar Basu of Q-355, Mudiali Road, P.S. Metiabruz, Kolkata- 24, previously 48/3A, Chakraberia Road (North), Kolkata-20.

__________________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President             

This is an allegation filed by the complainant on the ground that original owner Sisir Kumar Basu entered into an agreement on 15.12.1997 with M/s Aryan Contrade Pvt. Ltd. who are the O.P-1. But said original owner died intestate on 2.10.1998 leaving behind his wife Sarbani Basu and three daughters namely Ishani Dutta,k Sibani Baksi and Haimanti Basu  being O.P nos. 3,4 and 5. Said legal heirs of Sisir Basu confirmed and accepted the terms and conditions as set forth in the agreement dated 15.12.1997 and General Power of Attorney dated 16.8.1999. Accordingly O.P-1 obtained Corporation plan and constructed a multistoried building . Complainant purchased a flat out of the said project and contacted with the developer who allotted one flat mentioned in schedule B in favour of the complainant at a consideration of Rs.4,50,000/-. An agreement was also made on 17.1.2001 and earnest money was paid on 8.1.2001 for the  flat no.C-1 at the first floor measuring a super built u- area of about 675 sq.ft on making payment an earnest money of Rs.67,500/- . It has further stated that on 22.1.2001 complainant also entered into another agreement for purchasing a garage space at the south west side of the ground floor front portion measuring about 140 sq.ft at a consideration of Rs.40,000/-. Thus complainant becomes intending purchaser in respect of the flat and car parking space against the total consideration money of Rs.4,90,000/- in all. Thereafter, complainant paid the residue portion of the amount of consideration of the flat and Rs.20,000/- was paid at the time fo execution of agreement for sale dated 22.1.2001 for the car parking space. It has stated that on 23.1.2002 the Managing Director Rakesh Singh of O.P-1 issued a conditional permission letter to the complainants to use the car parking space till payment of the residue portion of the consideration amount and thereafter complainants paid the full consideration amount on 27.1.2002 and they are in possession in respect of the said car parking space or garage It has further stated that after completion of the payment developer issued a possession certificate through the then Managing Director Rakesh Sing on 24.9.2002 and photocopy of the same is annexed herewith. The complainant also paid Rs.10,000/- for electric connection. It has claimed that although the complainants are possession and enjoying the flt and car parking space but they have not yet got the required sale deed executed and registered by the owners of the land and the developer of the project due to internal dispute.  It has stated that the Managing Director of the Developer informed the complainant that a Title Suit no.80 of 2001 is pending before the Civil Judge, Sr. Division at Alipore between the developer and the owners of the property , that is why the execution of the sale deed was not possible . It has stated that the complainant already recorded their names to the competent authority in respect of their flat and covered garage in question and they already obtained separate electric connection and meter in their name and photocopy of assessment role, tax receipt , electric bill are annexed with the complaint. It has stated that due to request the land owners were agreed to execute and register the deed of conveyance but developer did not perform and avoiding the same. It has also stated that the other flat owners already got their registered deed of conveyance through the Forum in C.C.no.174 of 2015, C.C.no.56 of 2008 and C.C.no.123 of 2009 , being annexure 10 series in this complaint. Hence, this complaint with a prayer to direct the O.Ps to execute and register the deed of conveyance regarding the property mentioned in Schedule B and if the O.Ps failed to execute the same then the same may be completed through the machinery of the Forum at the cost of the complainant and also prays for compensation for illegal activities by the O.Ps amounting to Rs.8,35,000/- and other reliefs.

The O.P nos. 3,4 and 5 contested the case by filing written version . These O.Ps have admitted that most of the statements made above are true and correct. It has stated that Award already passed by the Arbitrator is not binding upon them since the Ld. Arbitrator has no jurisdiction to pass award against the appellant without perusing the papers and documents. It has claimed that developer also deprived the petitioner from giving possession of 1000 sq.ft flat and rest amount as agreed to the O.Ps. It has stated that O.P-2 only provided the petitioner a flat of 650 sq.ft on the second floor and paid only Rs.50,000/- and assured to provide further space and balance amount. It has admitted that in terms of request made by the complainant and to avoid harassment to them the O.Ps are ready to execute and register the deed of conveyance in respect of the flat acquired by the complainant being owner of the land if the Ld. Court directed to do the same in favour of the complainant . Thus O.Ps pray for dismissal of the case.

The O.P nos. 1 and 2 also filed one cryptic written version without denying anything of the complaint case, but admitted that they  have already delivered possession of the said flat in question to the complainant on 24.9.2002. It has also stated that O.P nos. 1 and 2 is ready and willing to execute and register the deed of conveyance in respect of the alleged flat in question as and when required and necessary order may be passed for the ends of justice ,otherwise this contesting O.Ps will suffer irreparable loss . Accordingly, O.Ps pray for passing necessary order in this regard.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.

                                                            Decision with reasons

  At the outset it should be stated that the Hon’ble State Commission in RP no.112 of 2015 ,which was filed by the O.P nos. 1 to 3 against the complainant and O.P nos. 1 and 2, clearly observed that the Hon’ble State Commission did not find any material irregularity or procedural error in the impugned order which may call for interference in exercise of revisional jurisdiction and thereby dismiss the same on contest with a cost of Rs.2500/- to be paid by the petitioner no.1 namely Smt. Haimanti Basu nee Banerjee in favour of the complainant and also directed to appear before this Forum and receive further order from this authority and also requested this Forum to fix a firmed date for final hearing of the case and in no circumstances hearing will be deferred unless exceptional situation arises.

Thus, we find that delay was cropped up due to revisional petitioner no.1 Haimanti Basu ,for which the cost was imposed against her leaving aside the other appellant nos. 2 and 3.

Admittedly developers already delivered possession in the year 2002 and thereafter the complainant is suffering a lot due to the dispute with the land owners and the developer which has been nakedly proved from the written version of O.P nos. 3 to 5 in para 6, wherein the substituted land owners have stated that the developer also deprived them from giving possession of 1000 sq.ft first floor flat and the rest amount of Rs.2.5 lacs as agreed  by the developer ,O.P-2.

In our considered view , if there is any dispute with the developer then the land owners definitely welcome to raise their agitation in the proper Forum but for that reason they should not harass the complainants ,who are the bonafide purchasers.

At the time of argument the Ld. Advocate of the O.P-5 wanted to raise regarding the dispute of two Title deeds but if any dispute is there regarding the title of the property the said matter will be solved by the competent Civil Court , not the Consumer Forum. Here , we will see whether any deficiency in service or unfair trade practice is there. Since the land was developed by the desire of Sisir Basu who is father of O.P nos. 3,4 and 5 and O.P nos. 3,4 and 5 stepped into the shoes of their father and after death of their parent they are exclusive owners of the land and they have already agreed to the conditions of the development agreement which was executed by their father. It should be mentioned here that if the O.P nos. 3,4 and 5 being the substituted land owners (Legal heirs of Sisir Basu) raise any dispute regarding the terms and conditions of the development agreement, then also the said objection has no leg to stand upon , because their father already executed the development agreement and they have stepped into the shoes of their father. So, nothing left out to them save and except execute and register the deed of conveyance in favour of the complainants. Of course,  if they have any dispute with the developers regarding the development agreement executed by the developer and their father,since deceased, they have legal right to sue against the developer to get the flat in terms of the development agreement. But that does not mean they will oppose or harass the bonafide purchasers.

With that observation we find that the prayer of the complainant to get the registered deed of conveyance is justified one and that is why in the written objection of the developer O.P nos. 1 and 2 and in the written version of O.P nos. 3,4 and 5 they have stated that they have no objection if the court directs them ,they are ready to execute and register the deed of conveyance .

In this circumstances complainants are able to prove their case and they are entitled to get the deed of conveyance executed and registered by the O.Ps in respect of the schedule B flat.

 

 

 

 

Hence,

                                                            Ordered

That the complaint case is allowed on contest against the O.Ps.

The O.P nos. 3,4 and 5 are hereby directed to execute and register the deed of conveyance in terms of the agreement for sale in favour of the complainants ,wherein O.P nos. 1 and 2 shall stand as a confirming parties within 30 days from the date of this order, failing which. if the O.P nos. 3,4 and 5 failed to execute and register the deed of conveyance, of course if the complainant sent the draft copy of the deed of conveyance beforehand i.e. within 7 days from the date of this order for their approval as well as to the confirming party O.P nos. 1 and 2 , then any of the parties if found reluctant to execute the same, compensation to the tune of Rs.5 lacs will be imposed upon the said parties taking into consideration O.P nos. 1 and 2 is one group and O.P nos. 3,4 and 5 is another group.

But cost of Rs.15000/- is  imposed upon the O.P nos. 3,4 and 5 jointly and/or severally and Rs.5000/- upon the developer O.P nos. 1 and 2 jointly and/or severally which should be paid within 30 days from the date of this order.

All the directions have to be complied with within 30 days from the date of this order, failing which, penal interest will carry @ Rs.100/- per day upon the defaulted group of parties ,which we have stated above, and that amount will be deposited in the Consumer Legal Aid Fund.

Complainant is at liberty to approach before this Bench after the statutory period for execution of the order with a prayer for registration of the deed of conveyance , if necessary through the machinery of the Forum, and also to ventilate this Forum in whose fault the execution and registration of the deed of conveyance was not made, then the compensation which we have stated above will be borne by that group and this things should be mentioned categorically in the execution application swearing affidavit, if required. 

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

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 complaint case is allowed on contest against the O.Ps.

The O.P nos. 3,4 and 5 are hereby directed to execute and register the deed of conveyance in terms of the agreement for sale in favour of the complainants ,wherein O.P nos. 1 and 2 shall stand as a confirming parties within 30 days from the date of this order, failing which. if the O.P nos. 3,4 and 5 failed to execute and register the deed of conveyance, of course if the complainant sent the draft copy of the deed of conveyance beforehand i.e. within 7 days from the date of this order for their approval as well as to the confirming party O.P nos. 1 and 2 , then any of the parties if found reluctant to execute the same, compensation to the tune of Rs.5 lacs will be imposed upon the said parties taking into consideration O.P nos. 1 and 2 is one group and O.P nos. 3,4 and 5 is another group.

But cost of Rs.15000/- is  imposed upon the O.P nos. 3,4 and 5 jointly and/or severally and Rs.5000/- upon the developer O.P nos. 1 and 2 jointly and/or severally which should be paid within 30 days from the date of this order.

All the directions have to be complied with within 30 days from the date of this order, failing which, penal interest will carry @ Rs.100/- per day upon the defaulted group of parties ,which we have stated above, and that amount will be deposited in the Consumer Legal Aid Fund.

Complainant is at liberty to approach before this Bench after the statutory period for execution of the order with a prayer for registration of the deed of conveyance , if necessary through the machinery of the Forum, and also to ventilate this Forum in whose fault the execution and registration of the deed of conveyance was not made, then the compensation which we have stated above will be borne by that group and this things should be mentioned categorically in the execution application swearing affidavit, if required. 

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

Member                                                                                                                       President