West Bengal

South 24 Parganas

CC/21/2015

Sri Purusattam Khandelwal S/O Ram Kishan Khandelwal. - Complainant(s)

Versus

1. M/S .T.R. Enterprise A partnership Firm. - Opp.Party(s)

Madan Mohan Das.

17 Sep 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _21_ OF ___2015___

 

DATE OF FILING : 16.1.2015     DATE OF PASSING JUDGEMENT:  17.09.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             : Sri Purusattam Khandelwal,s/o Ram Kishan Khandelwal , 4/15/2, Netaji Nagar, P.S. Regent Park, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                            :  1.     M/s T.R Enterprise at 1/48A, Netaji Nagar, P.S Jadavpur, Kolkata – 92, represented by its Partners

                                           2.  Sri Rajib Das, s/o Sri Sunil Kumar Das, 1/67, Netaji Nagar, P.S. Jadavpur, Now Regent Park, Kolkata – 92.

                                           3.     Sri Tapas Ranjan Sengupta,s/o late Lalmohon Sengupta, 1/48A, Netaji Nagar, P.S. Regent Park, Kolkata – 92.

                                           4.     Sri Pankaj Chakraborty

                                           5.     Sri Dilip Chakraborty

                                           6.     Sri Tapas Chakraborty, 4 to 6 sons of late Chittaranjan Chakraborty , 4/15/2, Netaji Nagar, P.S. Regent Park, Kol-70.

                                           7. Smt. Sipra Chakraborty,w/o late Santi Chakraborty, 165A, Regent Colony, P.S. Regent Park, Kolkata – 60.

                                           8.     Smt. Santa Roy,w/o Sri Amit Roy, 3/3A, Padmapukur Road, P.S. Regent Park, Kolkata – 92.

                                           9.     Smt. Sikha Shom,w/o Sri Sujoy Shom, 571/3, Ashok Nagar, P.S. Ashok Nagar, North 24-Parganas, Pin 743222.

                                           10.     Smt. Sima Podder,w/o Sri Biman Podder, 1/11, Sanghati Colony, P.S. Regent Park, Kolkata – 92,

                                           7 to 10 are daughters of late Chittaranjan Adhikary, O.P nos. 4 to 10 are landowners.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President       

This is an application  under section 12 of the C.P Act filed by the complainant on the ground that due to need of residential flat complainant  entered into an agreement on 18.09.2005 with the land owners and developers for purchasing a flat being no.8 on 3^rd  floor north east side measuring an area 855 sq.ft super built up area consisting of two bed room one drawing cum dining,  kitchen , one toilet and one verandah fully described in schedule B of the agreement at a consideration of Rs.4,75,000. It has stated that entire consideration money has already been paid to the developer in terms of the agreement for sale and complainants are in possession of the said flat with common facilities and amenities and also paying proportionate tax to the concerned authority. It has also claimed that Smt. Sona Chakraborty, the Attorney as well as one of the lawful owners and a party in both the agreements dated 17.3.2004 and 21.1.2005 died on 22.11.2006 leaving behind O.P nos. 4 to 10 as her sons and daughters as legal heirs and successors who are made parties in this case.

It has further claimed that complainant requested the O.Ps regularly and several times to execute and register the deed of conveyance of the said flat in possession of the complainant but the O.Ps in collusion with each other denied to do the same and demanded excess money of Rs.3 lacs beside the payment of agreed consideration money of Rs.3,50,000/-. Hence, this complaint with a prayer to execute and register the deed of conveyance in respect of the B schedule property and also to pay litigation cost of Rs.20,000/- and Rs.10,00,000/- towards suffering of mental agony and harassment etc.

The O.P nos. 1 to 3 are contesting the case by filing written version and has claimed that the case has been filed in collusion with O.P nos. 4 to 10 in order to harass them. It is the positive case of these contesting O.Ps that at the time of execution of agreements dated 13.3.2004 and 21.1.2005 all the land owners were requested to execute their power of attorney but the land owners assured these O.Ps that it would not be necessary to execute the general power of attorney and they are agreed to execute and register the deed of conveyance as and when required but inspite of several requests made from their end , the landowners/O.ps are very much neglecting and are avoiding execution and registration of the deed of conveyance . But these O.Ps are ready and willing to execute and register the deed of conveyance and when Ld. Forum will pass necessary order to that effect . Hence, these O.Ps pray for passing necessary order as this Ld. Forum may deem fit and proper.

            The O.P nos. 4,7,8,10 also filed written version and have denied regarding the collusion as claimed by the O.P nos. 1 to 3 in their written version. They have also stated that as per agreement dated 21.1.2005 i.e. the agreement for sale between the developer and purchaser is nothing but a fake and collusive one as because these petitioners never gave any consent thereof. As a result the complainant will not be treated as consumer and hence this complaint should be rejected in lemini. It is the further case that agreement dated 21.1.2005 is not binding upon these O.Ps. In paragraph 2 these O.Ps have admitted that they and O.P nos. 5 and 6 have entered into an agreement dated 13.3.2004 with the O.P nos.1 to 3 in respect of development  and it has been stipulated in paragraph 1 of the said agreement that the O.P nos. 1 to 3 would be empowered to make agreements with the intending purchasers of their choice after giving general power of attorney to the said developer by all the land owners but your petitioner did not give any power of attorney to the said developer. Therefore, question of any attested agreement between the developer and the purchaser does not and cannot arise at all and if there be any agreement between the developer and intending purchaser , it would be illegal, void and not binding upon the petitioner and prays for dismissal of the complaint.

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

                                                Decision with reasons

At the very outset , it must be stated that this case is running against all the O.Ps on contest but except O.P nos. 5 and 6 and then case is running against them exparte.

The next point is whether O.P nos.4,7,8 and 10 and also O.P nos. 5 and 6 are necessary party or binding by the agreement dated 13.3.2004 and 21.1.2005 being a legal heirs of Smt. Sona Chakraborty as claimed by the complainant in paragraph 6 that once Smt. Sona Chakraborty ,the attorney as well as one of the lawful owners and party in both the agreement dated 13.3.2004 and 21.1.2005 died on 22.11.2006 leaving behind the O.P nos. 4 to 10 as her sons and daughters as legal heirs and successors.

Now, we should turn our eyes on the said agreement dated 13.3.2004 ,from where we find that Smt. Sona Chakraborty is one of the land owners along with Pankaj Chakraborty, Tapas Chakraborty, Dilip Chakraborty, Smt. Sipra Chakraborty and Smt. Santa Roy , Smt. Sikha Shom and Smt. Sima Podder , the O.P nos. 4 to 10 . Thus we find that all the O.Ps as stated above who are O.P nos. 4 to 10 are the parties of the development agreement with the O.P nos. 2 and 3 Rajib Das and Tapas Ranjan Sengupta ,who are the partners of M/s T.R. Enterprise. It is also evident from the photocopy of Sradh Ceremony card of Sona Chakraborty that her sons were Pankaj, Dilip , Tapas, Sipra, Santa , Sikha and Sima , the sons and daughters. So, the contention of the O.P nos. 4 to 10 are not at all tenable in the eye of law because their mother’s share already inherited to them. So, these O.Ps including put their legs into the shoes of deceased mother Sona Chakraborty after her demise being legal heirs and successors.

            Not only that, they are also the party in the development agreement because the husband of Smt. Sona Chakraborty acquired that property from the Government of West Bengal through a deed of gift. Thus, after demise of late Chittaranjan Chakraborty , Smt. Sona Chakraborty being a widow and her sons and daughters who are O.P nos. 4 to 10 are the legal heirs of the said property and entered into an agreement with the O.P nos. 1 to 3 and on the strength of the said agreement , these O.Ps made an agreement for sale on 21.1.2005 with Smt. Provat Kumar Sanyal , since deceased, and Smt. Dipti Sanyal  is the wife of Provat Kumar Sanyal. So, it cannot be said that  sale agreement is not binding upon O.P nos. 4 to 10 and it may be mentioned here that on the strength of the development agreement O.P nos. 1 to 3 entered into the agreement for sale and during lifetime of their mother the O.P nos. 4 to 10 never shows any intention and complainants are in peaceful possession in the suit flat. The possession of the complainants since 10.1.2007 clearly suggests that they are the original owner of the said flat ,otherwise, O.P nos. 4 to 10 definitely filed a civil suit against them for restoration of possession. This conduct clearly suggest that complainants are the original owner of the flat in dispute. It is true that although in the agreement for sale names of the owners have been mentioned but signatures are not appearing. It is the sheer negligence of the developer and it is surprising that the said documents were notarized but the Notary Public did not put any comment when the place for constituted attorney of owners is remained blank, but that does not mean that after paying the consideration money of Rs.4 lacs in terms of the agreement for sale dated 21.1.2005 the complainants will be thrown out from their original possession, that is why, taking advantage of that matter and the unfortunate death of Smt. Sona Chakraborty the legal heirs being sons and daughters who are O.P nos. 4 to 10 are trying to squeeze excess money of Rs.5 lacs as claimed by the complainants  and that is why the deed of conveyance was not executed and registered in favour of the complainants. It is more clear when the O.p nos. 1 to 3 have filed written version ands admitted in para 5(ii) in page 2 that after acknowledging of consideration money from the complainants delivered them possession of the flat uninterruptedly and without any dispute from the O.P nos. 4 to 10. If that be the position, the O.P nos. 4 to 10  being parties of the development agreement with the O.P nos. 1 to 3 cannot stand on the way of execution and registration of the deed of conveyance in respect of 500 sq.ft flat in favour of the complainants in the B schedule of the agreement ,that is why, we find that O.P nos. 4 to 10 made deficiency in service by not executing and registering the deed of conveyance in favour of the complainant. The O.P nos. 1 to 3 are ready to cooperate in the matter of execution and registration which they have stated in their written version.

Accordingly, it is

                                                                        Ordered

The application under section  12 of the C.P Act is allowed on contest against O.P nos.1,2,3,4,7 to 10 and exparte against the O.P nos. 5 and 6 with litigation cost of Rs.7000/- which will be beard by the O.P nos. 4 to 10, the land owners ( Rs.1000/- each ) because they have denied execution and registration of the deed of conveyance ,that is why, the complainant compelled to file this case for redressal before this Forum , but did not find to impose any cost against O.P nos. 1 to 3 since they wanted to cooperate in the matter of registration and deliver possession in the long back to the complainant during the lifetime of Pravat Kumar Sanyal (Husband and father of the complainant).

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainants within one month from the date of this order and the O.P nos. 1 to 3 will stand as a confirming party and remaining O.Ps have to execute and register the deed of conveyance in favour of the complainants.

Since the O.P nos. 1 to 3 are agreed to execute and register the deed of conveyance but O.P nos. 4 to 10 are very much reluctant to execute and register the deed of conveyance and O.P nos. 5 and 6 being brothers of the contesting O.P landlord definitely they will be in the same boat, for which, if they failed to execute and register the deed of conveyance within the stipulated period, then complainants will get compensation from the O.P nos. 4  to 10 to the tune of Rs.10,000/- each which will be borne by the O.P nos. 4 to 10 i.e. total compensation will be Rs.70,000/- which will be borne by the O.,P nos. 4 to 10. If after completion of one month neither the O.P nos. 4 to 10 pay the entire cost and compensation and execute and register the deed of conveyance in favour of the complainants, then Ld. Advocate Sauvik Chatterjee, will be appointed as a machinery of the Forum and CCT of this Forum Sri Dilip Kumar Biswas will assist him in the matter of execution and registration and remuneration of the Ld. Advocate is fixed at Rs.4000/- . Ld. Commissioner Sri Sauvik Chatterjee will verify the deed of conveyance in terms of the agreement and execute and register the deed of conveyance in favour of the complainants on behalf of the machinery of the Forum and Ld. Advocate will stand as a confirming party also ,if required..

 

Registration should be concluded within 15 days after the stipulated  period through the machinery of the Forum.                                                                                                                                                                                                                                                                                                                                       

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               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

The application under section  12 of the C.P Act is allowed on contest against O.P nos.1,2,3,4,7 to 10 and exparte against the O.P nos. 5 and 6 with litigation cost of Rs.7000/- which will be beard by the O.P nos. 4 to 10, the land owners ( Rs.1000/- each ) because they have denied execution and registration of the deed of conveyance ,that is why, the complainant compelled to file this case for redressal before this Forum , but did not find to impose any cost against O.P nos. 1 to 3 since they wanted to cooperate in the matter of registration and deliver possession in the long back to the complainant during the lifetime of Pravat Kumar Sanyal (Husband and father of the complainant).

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainants within one month from the date of this order and the O.P nos. 1 to 3 will stand as a confirming party and remaining O.Ps have to execute and register the deed of conveyance in favour of the complainants.

Since the O.P nos. 1 to 3 are agreed to execute and register the deed of conveyance but O.P nos. 4 to 10 are very much reluctant to execute and register the deed of conveyance and O.P nos. 5 and 6 being brothers of the contesting O.P landlord definitely they will be in the same boat, for which, if they failed to execute and register the deed of conveyance within the stipulated period, then complainants will get compensation from the O.P nos. 4  to 10 to the tune of Rs.10,000/- each which will be borne by the O.P nos. 4 to 10 i.e. total compensation will be Rs.70,000/- which will be borne by the O.,P nos. 4 to 10. If after completion of one month neither the O.P nos. 4 to 10 pay the entire cost and compensation and execute and register the deed of conveyance in favour of the complainants, then Ld. Advocate Sri Sauvik Chatterjee will be appointed as a machinery of the Forum and CCT of this Forum Sri Dilip Kumar Biswas will assist him in the matter of execution and registration and remuneration of the Ld. Advocate is fixed at Rs.4000/- . Ld. Commissioner Sri Sauvik Chatterjee  will verify the deed of conveyance in terms of the agreement and execute and register the deed of conveyance in favour of the complainants on behalf of the machinery of the Forum and Ld. Advocate will stand as a confirming party also ,if required..

 

 

 

Registration should be concluded within 15 days after the stipulated  period through the machinery of the Forum.                                                                                                                                                                                                                                                                                                                                       

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               Member                                               President