DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _271_ OF ___2014
DATE OF FILING : 20.6.2014 DATE OF PASSING JUDGEMENT: _26.6.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Mr. Asish Kr. Sekhsaria (HUF) represented by Karta Mr. Asish Kr. Sekhsaria, son of late Atmaram Sekhsaria & Mrs. Suprita Sekhsaria,wife of Mr. Asish Kr. Sekhsaria, both of 101/4, S.N. Roy Road, Ground Floor, P.S Behala, Kolkata -38.
O.P/O.Ps : 1. M/s Acharjee Enterprise , represented by its sole Proprietor Smt. Iti Acharjee,wife of Sri Dipen Kanto Acharjee, having its office at 554/B, Block-N, Ground Floor, New Alipore, P.S New Alipore, Kolkata – 53, at present residing at Acharjee Freedom, Flat no.A-5, 2nd Floor, 80/1C, Tollygunge Road, P.S Charu Market, Kolkata – 33.
` 2. Sri Bidyut Ghosh, son of late Bisweswar Ghosh
3. Smt. Anjali Rani Bose (Ghosh), wife of Devsankar Bose.
4. Smt. Purnima Ghosh, wife of late Baidyanath Ghosh
5. Smt. Madhuparna Ghosh, daughter of late Baidyanath Ghosh
All of 305/3, S.N Roy Road, P.S Behala, Kolkata – 38.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
This case was once decreed by this Forum and O.P-1 preferred an appeal being F.A no. A/176/2015 against the order of this Forum and the Hon’ble State Commission has been pleased to remand back the case to this Forum with a direction to O.P-1 to file written version of his statement herein and thereafter this Forum to proceed with the disposal of the case after causing service of notice upon the O.P nos. 2 to 5. Thereafter, the O.P-1 has filed written version of his statement before this Forum in compliance of the order of Hon’ble State Commission. Notice has been served upon the O.P nos. 2 to 5, but they have not entered into appearance in this case. So, the case is heard exparte against all of the O.Ps.
The quintessence of the allegations of the complainant is that the O.P-1 is the builder/developer and O.P nos. 2 to 5 are the land owners. One Sale Agreement dated 18.5.2008 was effected between the developer and land owners on one hand and the complainant on the other hand and thereby the developer agreed to sell a self contained flat as succinctly described in schedule to the complaint to the complainant for a total consideration price of Rs.8,50,000/- . The complainant has paid entire consideration price i.e Rs.8,50,000/- to O.P-1. Possession of the flat has also been delivered by O.P-1 to the complainant on 10.8.2008. But no registration has yet been effected by O.P-1 in favour of the complainant ,nor was delivered any completion certificate by him to the complainant. That apart, there were some defects in the said flat and the complainant has spent Rs.1,60,333/- for removal of those defects of the flat ,when the builder/developer did not pay any heed to the request of the complainant for removal of those defects. Now, the complainant prays for registration, delivery of completion certificate, reimbursement of the money spent for removal of the defects and compensation etc. Hence, this case.
In the written statement of the O.P-1, she has stated that full consideration money has not been paid to them by the complainant. According to her, complainant delivered a cheque of Rs.1 lac to him; but said cheque has bounced and , therefore, he has started a proceedings under section 138 , N.I Act against the complainant. It is further averred by the said O.P that the complainant has inducted a tenant to his flat after taking delivery of possession from him and that he has received Rs.25000/- per month as rent from the said tenant. It is the grievance of the O.P-1 that She is entitled to get the amount of rent received so far by the complainant from his tenant and if the said amount is paid to her along with the balance consideration price of Rs.1 lac, he is ready and willing to execute and register the sale deed in favour of the complainant in respect of the schedule flat.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Complainant has led Evidences on affidavit which is kept in the record for consideration. No evidence is led by the O.P-1.
DECISION WITH REASONS
Point no.1 & 2 :
It is an admitted fact that the possession of the flat has been delivered to the complainant by the O.P-1. Also admitted is the fact that the flat has not been registered in favour of the complainant. It is the case of the complainant that he has paid entire consideration money to O.P-1 ,but O.P-1 denies receipt of entire consideration money . According to O.P-1, complainant paid Rs.1 lac by cheque and that cheque has been bounced and that he has , therefore, filed a proceedings under section 138 N.I Act before the competent court. The complainant has suppressed all these facts. He has suppressed that the said cheque has not been encashed and that a proceeding under section N.I Act has been initiated against him by the O.P-1. Regards being had to all these facts we are of the opinion that complainant has not paid the balance consideration price of Rs.1 lac to O.P-1 and O.P-1 is entitled to get the said amount of consideration money from the complainant.
The complainant has claimed payment of Rs.1,60,333/- by O.P-1 for cost of repairs. According to the complainant, he did some repairs with the help of one Basanta Kumar Saha and he has incurred a cost of Rs.1,60,333/- for such repairs. The report of Basanta Kumar Saha is filed herein and is marked as annexure “D’ to the complaint.
Now to see whether the complainant is entitled to get this amount from the O.P-1. Annexure D is an estimation of cost done by Basanta Kumar Sahoo. The complainant has filed no document to prove that articles were purchased for doing repair or that he had paid the amount to Basanta Kumar Sahoo. The complainant could have filed the cash memo for purchasing the articles; he could have filed the money receipt issuedby Basanta Kumar Sahoo in acknowledgement of the acceptance of money from the complainant. But no such document has been filed by the complainant. That apart, complainant could have filed the evidence of Basanta Kumar Sahoo on affidavit to prove that repair work was actually done by Mr. Sahoo and that Mr. Sahoo also received the payment from the complainant. In absence of such documents and evidence we are of the opinion that the complainant has not been able to prove that she incurred a cost of Rs.1,60,333/- for repair of the flat and that he is entitled to get reimbursement of that amount from the O.P-1.
The O.P-1 has also raised a grievance to the effect that he is entitled to get the refund of entire amount received by the complainant from the tenant inducted to the subject flat by him. We fail to understand why the O.P-1 is raising such grievance of refund of said amount from the complainant. The complainant is the owner of his flat ; he has taken the possession of the flat from the O.P-1 and now, he is at liberty to use the flat by his own or to use the same by inducting any person as tenant. It is not understandable why the O.P-1 is claiming refund of such amount from the complainant and in exercise of which right of him.
Be that as it may, such a grievance of the O.P-1 appears not tenable in Law and ,therefore, it is rejected.
Now, it is found that the possession of the flat has been delivered to the complainant on 10.8.2008 by O.P-1. Since thenmany a water has flown down the Ganges but registration of the flat has not been made in favour of the complainant by O.P-1. Stamp duty and registration fee has been enhanced to a great extent by this time and the complainant will have to pay much more owing to enhancement of stamp duty and registration fee for getting his flat registered in his name. This loss on the part of the complainant is only attributable to the negligence of O.P-1. Had O.P-1 got the flat registered in favour of the complainant in the year 2008 i.e at the time of delivery of possession, the complainant would not have suffered the said loss owing to enhancement of stamp duty and registration fee. O.P-1 will have to compensate the complainant for such loss. Delay in getting the flat registered in favour of the complainant is undoubtedly a deficiency in service on the part of the O.P-1. The completion certificate is yet to be delivered to the complainant by O.P-1 and delay in handing over completion certificate to the complainant is also a deficiency in service on the part of the O.P-1. Complainant is entitled to get the relief which is passed as hereunder.
The point nos. 1 and 2 are thus disposed of in favour of the complainants.
In the result, the case succeeds in part.
Hence,
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That the complaint case be and the same is decreed in part exparte against the O.Ps with a cost of Rs.5000/- to be paid to the complainant by the O.P-1.
All the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant with respect to the schedule property within a month of this order, failing which, the complainant is at liberty to get the sale deed executed and registered with the machinery of this Forum. But complainant will have to pay the balance consideration price of Rs.1 lac to the O.P-1 and he is directed to make payment of such amount to O.P-1 on the date of registration of the deed of conveyance and if the O.P-1 fails to get the deed of conveyance registered in favour of the complainant, the complainant will deposit the amount before the Forum.
It is also directed to the O.P-1 to deliver completion certificate to the complainant and to pay Rs.50,000/- as compensation for loss sustained by the complainant due to enhancement of stamp duty and registration fee during this period, within a month of this order, failing which the amount of compensation and cost amount as referred to above will bear interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
