18....23.03.2021....
Today is fixed for delivery of judgment/final order.
Final oreder is ready. It icontains 5 pages. It is sealed, signed and delivered in open Forum/Commission.
It is ordered that,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. No. 1 with cost and allowed exparte against the O.P. No. 2 with cost and dismissed against the O.P. No. 3 on contest without cost. The O.P. Nos. 1 & 2 are directed to execute and register the Sale Deed in favour of the complainants in terms of the agreement for sale dated 27.03.2016 on receipt of Rs.50,000/- from the complainant within a period of sixty days from the date of the Final Order. The O.P. No. 1 & 2 are also directed to pay Rs. 5,000/-as litigation cost to the complainant by 60 (sixty) days from the date of this order. The O.P. No. 1 & 2 is jointly and severally liable to comply the Final Order.
Let copies of the order be handed over/sent to the respective parties / their representatives / agents free of cost as per rules. The final order be also available in the following website www.confonet.nic.in.
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO.78 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
20.06.2019 02.07.2019 23.03.2021
Present : President : Asish Kumar Senapati
Member : Jagdish Chandra Barma
COMPLAINANT(S) : Mrs.Rina Bhattacharya, Daughter of Sri DilipChatterjee, Wife of Sri Subhra Bhattacharya,
Of S-15/3, Gumur Math Housing Estate,
P.O. Sarangabad, P.S. Maheshtala, Kolkata–700 139,District – 24 Parganas South.
Versus
O.P/O.Ps 1. Mrs. Namita Halder,
Wife ofJaharlalHalder,
Of Village &P.O. – Parbangla,P.S. –Maheshtala,
Kolkata – 700 140, District – South 24 Parganas.
2. M/S. Taramoyee Enterprise,
Of Village & P.O. – Parbangla, P.S. – Maheshtala,
Kolkata – 700 140, District – 24 Parganas (South)
3. Mrs. Piyali Mondal,
Wife of BikashMondal,
Of Village & P.O. – Daulatpur, P.S.–Maheshtala,
Kolkata- 700 139, District – South 24 Parganas.
Smt Najmina Khatun Adv. For the Complainant
Sri Apurba Kr. Sautya Adv. For the OP No.3.
Sri Sujay Ghosh Adv. For the OP No.1.
Sri Asish Kumar Senapati, President
This is a consumer complaint U/S 12 of the C.P. Act, 1986. One Mrs. Rina Bhattacherjee (herein after referred to as the Complainants) filed the case against one Mrs. Namita Halder and two others (herein after referred to as the O.Ps) praying for order alleging deficiency in service, unfair trade practice.
The sum & substance of the complainant case is as follows :
The complainants entered into an agreement for Sale Deed dated 27.03.2016 with be O.P. No. 1 & 2 for purchase of the flat at a consideration of Rs. 9,00,000/- (Rupees nine lakhs only) on payment of Rs. 6,00,000/- (Rupees six lakhs only). The O.P. No. 1 promised to complete the said flat within one month from the date of agreement.
The complainant also paid Rs. 1,60,000/- (Rupees one lakh sixty thousand only) on 16.10.2016 and Rs.90,000/- (Rupees ninety thousand only) on 28.04.2017 against proper acknowledgement but the O.P. No. 1 has not yet completed the flat as per agreement. The O.P. No. 1 is guilty of unfair trade practice. The complainant through her Ld. Advocate Sri Atanu Pal sent a notice on 17.05.2019 but the O.Ps. did not pay any heed to the notice in spite of receipt of the said notice.The complainant prayed for an order directing the O.Ps. to pay a sum of Rs.2,00,000/- for inferior quality materials and accessories and Rs.2,00,000/- as compensation and damages and Rs.50,000/- for litigation cost. The complainant also prays for an order directing the O.Ps.for execution and registration of the Sale Deed in favour of the complainant and to deliver completion certificate. The O.P. No. 1 & 3 appeared and filed W.V. but O.P. No. 2 did not turn up in spite of service of notice.
The O.P. No. 3 filed W.V. on 01.08.2018 denying the allegations made out in the complainant contending that the O.P. No. 3 is not bound by the so-called agreement dated 27.03.2016 as she was not a signatory of the said agreement for sale. It is stated in her W.V. that she resigned as partner of O.P. No. 2 on 19.03.2015. She has prayed for dismissal of the case against the O.P. No. 3.
The O.P. No. 1 filed W.V. on 04.09.2019 contending that this Forum has no jurisdiction to entertain the case. The O.P. No. 1 denied the statements made in paragraphs 5 - 8 of the complaint. It has been ascertained by the O.P. No. 1 that the O.P. delivered possession of the disputed flat to the complainant on 17.10.2017 in presence of the I.C. Maheshtala Police Station within time and finished condition as per specification and the O.P. No. 1 has no authority to execute the Sale Deed in favour of the complainant. The complainant has changed the nature of the flat without intimation to the O.Ps. The O.P Nos. are always ready and willing to obtain the revised plan for extra construction and procure the completion certificate from Maheshtala Municipality but the owners are not co-operating for doing the same. The O.P. No. 1 has completed extra work amounting to Rs. 96,000/- but the complainant did not pay any amount for extra work. The O.P. No.1 prayed for dismissal of the complaint with costs.
Upon the above written complaint and written versions the following points are framed for proper adjudication of the case :-
- Is the complainant a consumer?
- Has this Forum jurisdiction to entertain the complaint?
- Have the O.Ps. any deficiency in service / illegal trade practice, as alleged?
- Is the complainant entitled to get any relief / reliefs against the O.Ps.?
DECISIONS WITH REASONS
Point Nos.1 & 2:-
The Ld. Advocate for the complainant submits that the complainant is a consumer as she entered into an agreement for sale with the O.P. No. 1 on 27.03.2016 on receipt of Rs. 6,00,000/- out of Rs. 9,00,000/- (Rupees nine lakhs).It is urged that the O.P. No. 1 is a partner of the O.P. No. 2 and the O.P. No. 3 is also a partner of O.P. No. 2.None on behalf of the O.Ps. is present at the time of hearing of argument.
We have gone through the materials on record and considered the submission of the Ld. Advocate for the complaint.It appears from the agreement for sale dated 27.03.2016 that the complainant entered into an agreement with the O.P. No. 1 on behalf of the O.P. No. 2.The O.P. No. 3 has ascertained that she resigned as partner of M/s. Taramoyee Enterprise in 2015.Therefore, it can be said that there is no privity of contract between the complainant and the O.P. No. 3.In our considered view, the complainant is a consumer under the O.P. Nos. 1 & 2.
The Ld. Advocate for the complainant submits that the case is maintainable as this Forum hasjurisdiction to entertain the case.On a careful consideration, we find that the subject matter of this caseis within pecuniary limit of this Forum and the cause of action of this case arose within theterritorrialjurisdiction of this Forum.Hence, we hold that this Forum has jurisdiction to entertain the case.
Point No. 3 & 4:-
The Ld. Advocate for the complainant submits that the complainant entered into an agreement with the O.P. No. 1 & 2 on 27.03.2016 for purchase of a flat measuring about 641 Sq. ft. on payment of Rs. 6,00,000/- and subsequently the complainant paid Rs. 2,50,000/- more to the husband of the O.P. No. 1.It is urged that the O.Ps. have not yet completed the construction of the disputed flat.It is urged that the O.Ps. have deficiency in service and they are guilty ofillegal trade practice.
It is stated in para 25 of the evidence of the complainantthat the O.P. No. 1has given possession of the disputed flat on 17.10.2017 in presence of the I.C. Maheshtala but the flat was not complete, moreover, the O.P. No. 1 restrained the complainant from entering into the said flat and no registration has been made.……… admittedly,Completion Certificate has been issued.”
We have perused the complaint,Written Versions, evidence of both sides, original agreement for Sale filed by the complainant and BNA filed by both parties.
Admittedly, the complainant entered into an agreement with the O.P. Nos. 1 & 2 on 27.03.2016 for purchase of a flat at a consideration of Rs. 9,00,000/- on payment of Rs. 6,00,000/-.It appears from the reverse page of page 7 of the agreement for sale thatthe husband of the O.P. No. 1 received Rs.2,50,000/- more in addition to Rs.6,00,000/- as consideration amount.Therefore, due consideration amount is Rs.50,000/-.It appears from the written statement of O.P. No. 1 para 11 & evidence of the complainant (para 25).Admittedly, the O.P.No. 1 handed over the flat in question to the complainant on 17.10.2017 in presence of the I.C. Maheshtala P.S.The complainant has suppressed the said fact in her written complaint.The complainant has alleged that the flat is not complete but she has not prayed for appointment of expert to ascertain whether the flat in question is complete or not.The complainant has also urged that the flat in question has constructed with materials of inferior quality but no expert evidence is adduced to establish the said fact.The complainant has stated in para 25 of her evidence “Admittedly completion Certificate has been issued”.The O.P. No. 1 has alleged that she is not liable for execution and registration of the Sale Deed in favour of the complainant but the owner of the land is liable forregistration of the Sale Deed.We find no justification to accept the contention of the O.P. No. 1 that she is not liable for execution and registration of the Sale Deed in favour of the complainant but the owner of the land is liable forregistration of the Sale Deed.We find that the O.P. No. 1 is liable to execute and registered the Sale Deed.
The complainant has suppressed the fact that O.P. No. 1 handed over the possession of the flat on 17.10.2017 in presence of I.C. Maheshtala P.S.Considering the above facts and circumstances, we think that the complainant is not entitled to get any compensationagainst the O.P. No. 1 & 2 as material fact of taking over possession of the flat on 17.10.2017 hassuppressed by the complainant in her complainant.The complainant got possession of the flatin question on 17.10.2017 but issued lawyer’s notice on 17.05.2019 after a lapse of about one and half years. The O.P. No. 1 & 2 have not yet executed and registered the Sale Deed in favour of the complainant.Therefore, we hold that the O.P. No. 1 & 2 have deficiency in service.In our considered view the O.P. Nos. 1 & 2 are also liable to pay litigation cost of Rs. 5,000/- to the complainant.
In the result, the case succeeds in part.
Fees paid arecorrect.
Hence,
ORDERED
That the complaint case be and the same is hereby allowed on contest against the O.P. No. 1 with cost and allowed exparte against the O.P. No. 2 with cost and dismissed against the O.P. No. 3 on contest without cost.The O.P. Nos. 1 & 2 are directed to execute and register the Sale Deed in favour of the complainants in terms of the agreement for sale dated 27.03.2016 on receipt of Rs.50,000/- from the complainant within a period of sixty days from the date of the Final Order.The O.P. No. 1 & 2 are also directed to pay Rs. 5,000/-as litigation cost to the complainant by 60 (sixty) days from the date of this order.The O.P. No. 1 & 2 is jointly and severally liable to comply the Final Order.
Let copies of the order be handed over/sent to the respective parties / their representatives / agents free of cost as per rules.The final order be also available in the following websitewww.confonet.nic.in.
Dictated and corrected by me
