West Bengal

South 24 Parganas

CC/468/2015

1. Sri Sujan Biswas, S/O Late Susanta Kumar Biswas. - Complainant(s)

Versus

1. Mr. Subhra Sundar Biswas, Proprietor Max Town . - Opp.Party(s)

Subir Kumar Roy.

14 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _468_ OF ___2015_

 

DATE OF FILING : 22.12.2015                     DATE OF PASSING JUDGEMENT:  14/12/2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Sharmi Basu  & Subrata Sarker

                                                                             

COMPLAINANT        :     1. Sri Sujan Biswas,s/o late Susanta Kumar Biswas

                                           2. Smt. Swati Biswas, w/o Sri Sujan Biswas of Khudiram Sarani, Momota Apartment, 2/B, Coochbihar District-Coochbihar, Pin-786101.

 

-VERSUS  -

 

O.P/O.Ps                            :    1. Mr. Subhra Sundar Biswas,Priprietor of Max Town  , office at 27/B, Chaul Patti Road, Kolkata -10.

                                              2.     Arati Paul, w/o late Ranjit Chandra Paul of 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                               3.     Narayan Pal,s/o late Ranjit Chandra Paul, 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                              4.    Bisnu Pada Pal, s/o late Ranjit Chandra Paul, 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                              5.   Krishna Dutta,w/o Sri Ranjan Dutta, d/o late Ranjit Chandra Paul of 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                              6.   Rina Chakraborty,w/o Sri Tarun Chakraborty,d/o late Ranjit Chandra Paul of 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                              7.     Mithu Dey,w/o Adhir Dey, d/o late Ranjit Chandra Paul of 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

                                                8.   Mita Majumdar,alias Madhumita Majumdar,w/o Sri Sanjay Majumdar, d/o late Ranjit Chandra Paul of 481, Laskar Para, Peyarabagan, Goria, P.O Goria, P.S. Sonarpur, Kolkata – 153.

 

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the allegation that O.P nos. 2 to 8 are the land owners and O.P-1 is the developer/promoter. It is the further case of the complainant that he agreed to purchase a flat measuring 800 sq.ft more or less on the second floor of the building after collecting the photocopy of the original deeds and development agreement between the developer and the land owners and registered general Power of Attorney and property tax at a consideration of Rs.19 lacs and complainant already paid Rs.4 lacs in three parts as per agreement for sale dated 22.8.2014 . It is the further case of the complainant that developer O.P-1 agreed that property will be ready to be possessed within a period of nine months. So, when the O.P-1 failed to execute and deny their liability to deliver B Schedule flat , complainant filed this case after expiry of the stipulated period with the prayer that O.P nos. 2 to 8 and O.p-1 and their men, agents jointly and/or severly be directed to deliver peaceful possession of the B schedule flat with the undivided proportionate share of land in the A schedule property along with other rights, O.p nos. 2 to 8 be directed jointly and/or severally to complete the building as per sanctioned plan, O.P-1 be directed to hand over possession certificate and also to execute and register the deed of conveyance . It has also claimed compensation of Rs.50,000/- and litigation cost Rs.10,000/-.

Since the O.Ps even the developer and the land owners are not contesting the case, inspite of sending summons, the case is running in exparte.

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

                                                            Decision with reasons

The agreement for sale was executed in the year 2014 with the developer and the complainant and it appears that total consideration money was Rs.19 lacs but complainant paid only Rs. 4 lacs . The date of delivery of possession in the said agreement is left blank. Thus, we find that developer made an agreement on the basis of the development agreement dated 29.5.2011 with the complainant.

In the Agreement for sale at page 9 para 4C it has been mentioned that entire consideration money and all other amounts and deposits payable by the purchaser to the Vendor for sale of the said flat.  It has also mentioned in para 4.1 that upon making the said flat tenable and upon obtaining the occupancy certificate or partial occupancy certificate the Vendor shall give a notice thereof if writing to the purchaser whom within fifteen days of its service. So, we find that at one hand complainant did not pay any further amount after booking money of Rs.4 lacs and the developer, O.p-1 also failed to take any initiative for delivery of possession and for obtaining completion certificate. So, the agreement which was made between the complainant and the O.p-1 , both were very much reluctant to comply their part equally and complainant files this case.

When the flat has not yet been completed it was the duty of the O.P-1 who accepted the money amounting to Rsa.4 lacs made deficiency of service, of course, along with the land owners ,because land owners are binding as they made a development agreement with the O.P-1 , promoter and thereby developer/promoter collected money on assurance to give a flat. So, in this manner land owners are also binding when the question of transferring the flat by way of registered deed of conveyance is involved. If the developer purchased the land from the land owners, then question of binding of the land owners does not arise at all. But in the given case the land owners are responsible only for the registration not for construction of the said flat .

With that observation, we find that in terms of the agreement for sale the total valuation is Rs.19 lacs. ,out of which Rs.4 lac only paid by the complainant. So, O.P-1 is entitled to get Rs.15 lacs along with banking interest at the rate prevailing at that time from the complainant, otherwise, it would be very much unjust since complainant did not pay or take any attempt to hand over the remaining amount to the developer/O.P-1.

Since this proceedings is a judicial proceedings in view of Section 13(5) of the C.P Act, 1986 , the equity should be  maintained ,otherwise, litigants will loose their faith upon the proceedings, since the complainant did not pay full consideration money in time. So, complainant has been able to prove his case  against the O.P-1 developer and secondly against the remaining O.Ps/land owners for non-execution of the deed of conveyance.

 

 

 

Hence,

                                                                        Ordered

That the complaint petition is allowed in exparte against the O.Ps.

The O.P-1 is hereby directed to hand over the possession of the schedule flat mentioned in Schedule B of the complaint petition within 45 days after receiving the balance consideration money of Rs.15 lacs along with interest in light of the observation made in above.

The O.P nos. 2 to 8, the land owners, are hereby directed to execute and register the deed of conveyance/ in favour of the complainant after handing over possession by the O.P-1 to the complainant. It may be mentioned here that if the possession of the flat is in the custody of the land owners, land owners have to deliver possession along with execution and registration of the deed of conveyance and if the situation is so warranted and O.P-1 developer is not available and possession of the flat is in custody of the landlords with complete satisfaction of the complainant regarding all amenities as mentioned in the agreement for sale, then the balance consideration money will be given to the landlords after the delivery of possession and at the time of registration of the deed of conveyance and in that passage of time entire consideration amount with interest will be kept in the custody of the Forum and it will be handed over to the landlords after knowing the fact that possession and registration of the deed of conveyance has already been made by the land owners.

The O.P-1 is hereby directed to pay compensation to the tune of Rs.50,000/- along with litigation cost of Rs.10,000/- to the complainant within 45 days from the date of this order and that amount will be deducted from the total consideration money of Rs.15 lacs ,if it is paid to the developer,O.P-1.

It is further ordered that if the possession and registration is made by the land owners within the stipulated period, then question of compensation does not arise at all  and only Rs.10,000/- will be deducted from the consideration money which will be given to the land owners.

This order is passed considering the total episode of this case, not passing stereotype order normally disposed of in housing cases ,since circumstances is quite different in nature which have been unfolded above.

If the complainant failed to get usufructs of the order within the stipulated period then complainant may approach before this Bench for execution of the order after the stipulated period is over.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

            Member                                          Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

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

 

                                    Ordered

That the complaint petition is allowed in exparte against the O.Ps.

The O.P-1 is hereby directed to hand over the possession of the schedule flat mentioned in Schedule B of the complaint petition within 45 days after receiving the balance consideration money of Rs.15 lacs along with interest in light of the observation made in above.

The O.P nos. 2 to 8, the land owners, are hereby directed to execute and register the deed of conveyance/ in favour of the complainant after handing over possession by the O.P-1 to the complainant. It may be mentioned here that if the possession of the flat is in the custody of the land owners, land owners have to deliver possession along with execution and registration of the deed of conveyance and if the situation is so warranted and O.P-1 developer is not available and possession of the flat is in custody of the landlords with complete satisfaction of the complainant regarding all amenities as mentioned in the agreement for sale, then the balance consideration money will be given to the landlords after the delivery of possession and at the time of registration of the deed of conveyance and in that passage of time entire consideration amount with interest will be kept in the custody of the Forum and it will be handed over to the landlords after knowing the fact that possession and registration of the deed of conveyance has already been made by the land owners.

The O.P-1 is hereby directed to pay compensation to the tune of Rs.50,000/- along with litigation cost of Rs.10,000/- to the complainant within 45 days from the date of this order and that amount will be deducted from the total consideration money of Rs.15 lacs ,if it is paid to the developer,O.P-1.

It is further ordered that if the possession and registration is made by the land owners within the stipulated period, then question of compensation does not arise at all  and only Rs.10,000/- will be deducted from the consideration money which will be given to the land owners.

This order is passed considering the total episode of this case, not passing stereotype order normally disposed of in housing cases ,since circumstances is quite different in nature which have been unfolded above.

If the complainant failed to get usufructs of the order within the stipulated period then complainant may approach before this Bench for execution of the order after the stipulated period is over.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

            Member                                          Member                                                                President