DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __368_ _ OF ___2015
DATE OF FILING :_13.8.2015 DATE OF PASSING JUDGEMENT: 3.10.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sri Arunava Dewanjee, son of Bhupal Chandra Dewanjee of E/27, Baghajatin, P.S Patuli, Kolkata – 86.
O.P/O.Ps : 1. M/s Concubes at 109/A, Bikramgarah, P.S Jadavpur, Kol-32.
2. Sri Sumit Mukherjee, son of Sri Dulal Mukherjee of 58/46, Prince Anwar Shah Road, P.S Lake, Kolkata – 45.
3. Sri Jayanta Nandi, son of Sri Jagadish Chandra Nandi of 109/A, Bikramgarah, P.S Jadavpur, Kolkata – 32.
4. Smt. Gita Rani Roy, wife of Sunil Kumar Roy of 4, Ram Thakur Park, P.S Patuli, Kolkata – 86.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Gross negligence on the part of the O.P/developers has led the complainant to file the instant case under section 12 of the C.P Act, 1986 alleging deficiency in service on the part of the O.Ps/developers.
Facts leading to the filing of the instant case may be epitomized as follows.
O.P nos. 1,2 and 3 are the developers and O.P-4 is land owner. A development agreement was effected on 2.12.2008 between the land owner and the developers and in pursuance thereof, the developers constructed a multi storied building upon the property as succinctly described in Schedule A to the complaint. Thereafter , three agreements for sale dated 15.2.2012, 5.8.2012 and 31.5.2013 were executed between the developers and the complainant, whereby the developers agreed to sell the property described in Schedule B to the complaint for a consideration price of Rs.9,95,000/- in all. Total consideration price was also paid by the complainant to the developers. Vacant possession of the said flat was also handed over to the complainant by the developers. Possession letter was also delivered to the complainant by the developers. But registration of the said flat was not made in favour of the complainant inspite repeated requests by the complainant., So, the complainant has filed the instant case, praying for registration of the flat as described in Schedule B to the complaint, for recovering cost of incomplete work, compensation etc. Hence this case.
O.P nos.1,2 and 3 have filed written statement, wherein it is contended inter alia that they executed sale agreement in favour of the complainant and have also received the total consideration price of Rs.9,95,000/- . It is further averred in their written statement that there was a verbal agreement between them by virtue of which the complainant purchased three covered garages, not any flat. They were always willing to register a sale deed in respect of three covered garages in favour of the complainant . But the complainant refused to get the sale deed registered in his favour , as he demanded registration of flat by the developers in his favour on the assertion that he would convert the garage spaces into flat in future.
The O.P-4 has also filed written statement ,wherein it is stated ,amongst other, that the entire ground floor of the subject building is car parking spaces and there is no flat on the ground floor as per KMC sanctioned building plan. O.P nos. 1,2 and 3 i.e the developers converted the garage spaces into rooms and, therefore, the KMC did not issue any completion certificate in favour of the developers. The construction raised by the developers on the ground floor is an illegal one. There is no deficiency in service on the part of the land owner and, therefore, the case should be dismissed in limini against her.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged in the complaint?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Complainant has filed evidence on affidavit and the same is kept in the record after consideration. No evidence has been led on behalf of the O.Ps and ,therefore, the case is heard exparte against them.
DECISION WITH REASONS
Point no.1 & 2 :
Coming to the facts and circumstances of the case , as has come to the surface on the record, it is found that the execution of sale agreement is admitted by the developers. Also admitted is the fact that the developers received the undisputed consideration price i.e Rs.9,95,000/- from the complainant. The complainant has also filed copies of money receipts on record and it is found established therefrom that he has paid Rs.9,95,000/- to the developer as the consideration price of the land described in Schedule B to the complaint.
It is the case of the complainant that the developers have neglected registration of the sale deed in his favour and they have not effected the registration inspite of several requests to them for such registration. On the other hand, it is the case of the contesting O.Ps that there is no flat on the ground floor and that the entire ground floor is to be used as car parking spaces in accordance with the Sanctioned Building Plan of the KMC.
In the face of the allegation and counter allegation as pointed out above, it is to be seen whether the O.Ps have made themselves guilty of deficiency in service by not causing registration of the scheduled property, be it a flat or car parking spaces , in favour of the complainant. It is well known to all that any kind of construction made in violation of the KMC Sanctioned Building Plan will invite demolition by the KMC unless the said construction is regularized in terms of the norms and regulations of the KMC. So, in the circumstances, we should not go through the matter as to whether the complainant purchased flat or car parking space. The developers will have to effect a sale deed in favour of the complainant in respect of the flat described in Schedule B to the complaint, subject to regularization to be made in accordance with rules of the KMC. But the developers have not effected such a sale deed in favour of the complainant inspite of receipt of total consideration price . Negligence to effect registration of the sale deed in favour of the complainant inspite of receipt of total consideration price is nothing but sheer deficiency in service on the part of the developers i.e O.P nos. 1,2 and 3. O.P-4 being the land owner has also a duty to effect sale deed in favour of the complainant and negligence on her part to effect such a sale deed in favour of the complainant is also a sort of deficiency in service.
Upon what have been discussed above, complainant is deemed entitled to get relief or reliefs and the relief is awarded to him accordingly as hereunder.
In the consequence, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against the OI.Ps with a cost of Rs.5000/- to be paid by the O.P nos. 1,2 and 3 to the complainant.
The O.Ps are directed to execute and register the sale deed in respect of the subject property as described in Schedule B to the complaint in favour of the complainant within a month of this order, failing which, the complainant is at liberty to get the sale deed registered through the instrumentality of the Forum.
Considering the facts and circumstances of the case, no order is passed as to any kind of compensation in favour of the complainant.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
