DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 456_ OF ___2013
DATE OF FILING : 22.1.2013 DATE OF PASSING JUDGEMENt: 21.02.2018
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Sri Ashanta Dey, son of late Narayan Chandra Dey of B/2, Atabagan Boral Main Road, P.S Bansdroni, Kolkata – 84 ,now at 618, Boral Main Road, P.S Bansdroni, Kolkata – 84
O.P/O.Ps : 1. Mr. Juran Dey, son of late Nishi Kanta Dey of B/2, Atabagan Boral Main Road, P.S Bansdroni, Kolkata – 84 ,now at 618, Boral Main Road, P.S Bansdroni, Kolkata – 84
2. M/s Ideal Developers, 1/98, Naktala Govt. Scheme-I, P.S Jadavpur, Kolkata – 47 ,represented by Sri Suman Kumar Dey and Sri Amit Halder, Partners.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
This case was once decreed on 30.5.2014 in favour of the complainant. But the complainant was not satisfied with the decree and, therefore, he went on appeal before the Hon’ble State Commission and the Hon’ble State Commission by its order dated 5.7.2017 has been pleased to direct as follows:
“The impugned judgment/final order is hereby set aside. The case is remitted back on remand with a direction upon the parties to appear before the Ld. District Forum on 31.7.2017 and on that date the respondent/O.Ps must file an application for amendment of written version to controvert the statement of appellant in paragraph-3 of the petition of complaint and to specify the amount paid by the complainant/appellant. Thereafter, the Ld. District Forum will proceed to dispose of the case in accordance with the law after reception of additional evidence, if any, with regard to payment of part consideration amount”.
But none of the parties appeared on 31.7.2017in keeping with the aforesaid direction of the Hon’ble State Commission. It is only on 15.11.2017the complainant appeared through Ld. Lawyer ,but none appeared on behalf of the O.Ps. Argument has already been heard of the Ld. Lawyer for the complainant and now the deck is all clear for delivery of judgment.
The brief facts leading to the filing of the instant case may be epitomized as follows .
The O.P-1 is the land owner and O.p-2 is the developer. The complainant made an agreement for sale with the O.Ps on 16.12.2012 and thereby agreed to purchase a flat measuring 600 sq.ft in the ground floor, South West portion at 618, Boral Main Road, P.S Bansdroni, Kolkata – 84 for a consideration price of Rs.13,50,000/-and Rs.3,50,000/- was paid to the O.P-2 as earnest money. Thereafter, the entire balance consideration price has been paid to the O.P-2 and possession has already been delivered to the complainant. But the deed of conveyance has not been registered in favour of the complainant despite repeated requests of the complainant in that regard. Hence, this case, praying for issuing a direction to the O.Ps to effect registration of the deed of conveyance in favour of the complainant and also to make payment of compensation ,litigation cost etc.
The O.Ps contested the case by filing written statement ,wherein it is contended by them that entire consideration money has not yet been paid by the complainant in terms of the agreement and ,therefore, the deed of conveyance has not yet been registered in favour of the complainant. According to them, there is no deficiency in service on the part of them and ,therefore, the case should be dismissed in limini.
Upon the averments of both the parties following points are formulated for consideration in the case.
POINTS FOR DETERMINATION
- Whether the O.Ps are guilty of deficiency in service for not effecting registration of deed of conveyance in favour of the complainant.
- Is the complainant entitled to get the reliefs as prayed for?
Evidence of the parties:
The parties have filed affidavit-in-chief and the same are kept in the record.
DECISION WITH REASONS
Point nos. 1 and 2:-
It has been clearly averred in paragraph 3 of the petition of complaint by the complainant that entire consideration money of the flat i.e Rs.13,50,000/-has been fully paid to the O.Ps. This averment of the petition of complaint has nowhere been denied by the contesting O.Ps in the written statement filed by them and this lacuna was brought to the notice of the Hon’ble State Commission in the appeal filed against the judgement passed by this Forum earlier.
Having considered the pros and cons of the said lacuna and also the injustice which might have been done against the parties to this case, the Hon’ble State Commission was pleased to direct the O.Ps to amend their written statement for controverting the statement of paragraph 3 of the complaint and also to state specifically and clearly how much amount has been received by them from the complainant. Inspite of such direction of the Hon’ble State Commission, the O.Ps have chosen not to amend their written statement to controvert the averment of paragraph 3 of the petition of complaint. This is the position which is revealed from the record and taking this aspect particularly into consideration, we like to proceed to determine the dispute between the parties in accordance with the prevailing position of Law.
It is well settled principle of law that an averment which is required to be contradicted by the other parties is regarded as admitted by other parties if not controverted by the said party. The same has happened in this case also. The O.Ps have not dared to contradict the statement of paragraph 3 of the petition of complaint, wherein it is stated by the complainant that he paid the entire consideration money of Rs.13,50,000/-to the O.Ps as agreed upon by and between the parties in the agreement. The Hon’ble State Commission took a liberal view and extended its long hand to give an opportunity to the O.Ps to amend their written version for the purpose of contradicting the aforesaid averment of the complainant. The O.Ps have not made a good use of that opportunity and taking this aspect in consideration we feel no hesitation to say that the entire consideration money has been paid to the O.Ps by the complainant and, therefore, the O.Ps have no courage to contradict that very statement of the complainant as transpiring in paragraph 3 of the petition of complaint. Thus, the entire consideration money is proved to have been paid to the O.Ps by the complainant and this being so, the O.Ps are bound to effect the registration of deed of conveyance of the respective flat in favour of the complainant.
The last payment of the consideration money was made by the complainant on 22.5.2012 as is revealed from the affidavit-in-chief filed by the complainant. Possession of the flat has already been delivered to the complainant. But the possession of the flat is not all in all ;every owner of the flat requires a title deed of the flat and to get such title deed the deed of conveyance is required to be registered in favour of the complainant by the O.Ps. But since 2012 till now, no such deed has been registered in favour of the complainant by the O.Ps, although the fact goes that entire consideration money of the flat has been paid to the O.Ps by the complainant. This is a gross inability on the part of the O.Ps and this gross inability to effect the deed of conveyance registered in favour of the complainant is nothing but manifest deficiency in service, for which, the O.Ps will have to pay compensation to the complainant for mental harassment and agony underwent by the complainant during this period.
The point nos. 1 and 2 are thus disposed.
In the result, the case succeeds in part.
Hence,
Ordered
That the complaint case be and the same is decreed exparte against the O.Ps with cost which is quantified as Rs.10,000/-.
Both the O.Ps who will remain jointly and severally liable, are directed to effect registration of a deed of conveyance in favour of the complainant with respect to the subject flat and also to pay a sum of Rs.1 lac as compensation for mental harassment and agony caused to the complainant within a month of this order, failing which the compensation amount and the amount of litigation cost will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member
Dictated and corrected by me
President
