West Bengal

South 24 Parganas

CC/332/2015

Tapas Dutt ,S/O Late Haridas Dutt. - Complainant(s)

Versus

1. M/S. Banco a partnership Firm. - Opp.Party(s)

Biswajit Sarkar.

09 Jan 2017

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _332   OF ___2015____

 

DATE OF FILING : 22.7.2015     DATE OF PASSING JUDGEMENT:      09/01/2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                    

 

COMPLAINANT                  :  Tapas Dutt, s/o late Haridas Dutt of 47/2A, Bose Pukur Road, P.S. Kasba, Kolkata – 42.

 

-VERSUS  -

 

O.P/O.Ps                                :     1. M/s BANCO, of 6/6, Poddar Nagar, P.S. Jadavpur, Kol-68

2.  Sri Debasis Banerjee,Managing Director of BANCO of 47-D, Selimpore Road, Kolkata – 31.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             The complainant and his father, since deceased, had entered into an unregistered agreement for sale on 15.11.1993 for purchase of a ownership flat at the ground floor being flat no.GA t  the south west portion having plinth area of 700 sqft together with a car parking space at a consideration of Rs.3,83,000/- ,with the O.Ps and paid total Rs.2,75,000/- out of Rs.3,83,000/- . On 27.12.1993 the O.ps handed over physical possession of the flat  to the complainant as is where basis .Both parties also agreed that the cost of remaining part of the construction  would be borne by the complainant and his father jointly as against the balance consideration amount of Rs.1,08,000/- and in compliance with the said agreement the O.Ps by letter dated 27.12.1993 had given possession of the said flat in incomplete condition to the complainant.  Thereafter complainant and his father several times requested the O.Ps to execute and register the deed of conveyance in respect of their falt , but it yielded no result. Ultimately on 2.2.1999 the father of the complainant died and his mother also died on 17.3.2006 . Now complainant is the only legal heirs of his father. But the O.Ps failed to execute and register the deed of conveyance inspite of best effort following by lawyer’s notice. Hence, this case praying for  direction upon the O.Ps to execute and register the deed of conveyance in his favour, compensation of Rs.1,00,000/- and cost of Rs.20,000/-.

            O.P-2 contested the case by filing written version denying all the material allegations contending inter alia that  case is malafide, mischievous, barred by limitation and no jurisdiction of this forum. The main positive case of the  O.P-2 is that  complainant entered in the agreement for sale with the O.P M/s BANCO  represented by Sri Sujit Kumberjee, Sri Debasish Banerjee, Mrs. Bijaya Banerjee, Smt. Rama Ghosh but complainant has not made parties all the representatives of the company. So, case is fail for non joinder and mis-joinder of the necessary parties. It is the positive case of the O.P-2 that complainant failed to pay the balance amount of consideration money of Rs.1,08,000/- inspite of several requests. O.P-2 prays for dismissal of the case .

            O.p-1 did not contest the case inspite of service of summon. Hence, the case is running against it in exparte.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken together for the sake of convenience ,as they are interlinked. 

            After scrutinizing the complaint, written version, evidence of both sides , questionnaire and reply by the parties , BNAs and hearing minutely the argument advanced by the Ld. Advocates for the parties concerned it is beyond doubt that the complainant with intention to purchase a flat has paid Rs.2,75,000/- towards her total consideration amount of Rs.3,83,000/-  in terms of the agreement for sale dated 15.11.1993. It is also admitted fact that O.P, developer, handed over the possession of the flat in question on 27.12.1993. It is also needed to be mentioned that it is mentioned in the possession by the O.Ps that “We are pleased to hand over possession of the said flat in “as is where is condition” by delivery of all keys used in the said flat. Therefore, it is beyond  doubt that complainant is a “Consumer” and the O.Ps , developer, are the service providers under section 2(1)(d)(II) and Section 2(1)(o) of the C.P Act, 1986 .

            To decide the point no.2 and 3 i.e. whether there is any deficiency in rendering services on the part of the O.Ps towards the complainant and/or consumer and whether the complainant is entitled to get relief as prayed for or not in part or as a whole following discussions are advanced:

            It is observed by this Forum that the complainant has got possession of the suit flat on 27.12.1993 and it is also observed by this Forum that in that letter it is specifically mentioned that possession of the flat was handed over to the complainant on “as is where is condition”  . On the other hand ld. Advocate for the O.Ps raised a point that the complainant has not paid the balance consideration amount ,for which, they could not be able to execute and register the deed of conveyance in question in favour of the complainant with respect to the suit flat in favour of the complainant even repeated requests to the developer for the same.

            From the documents it appears that the complainant was in possession from 27.12.1993 and on that very date i.e. on 27.12.1993 a letter was received by the O.P for which complainant specifically mentioned that “I am convinced that you will not be able to complete the flat even by the end of January, 1994. As such I demand to deliver the possession of the flat to me immediately in its condition so that I am able to get it finished under my supervision. However please note that you will not be entitled to any further payment. On the contrary you may be liable to refund some money in future. Please also note that you will be obliged to finish the balance construction fo the common utilities without demanding any further consideration and it will be binding upon you to transfer the total of the said flat common utilities and the consideration you have already received since you are giving possession of the skeleton structure of the flat only”.

            With that complainant has filed also documents to establish that on that very date he also handed over the estimate of expenses over the amount paid for the flat from, where it reveals that the amount recovered from the promoter is Rs.1,45,000/-. After that O.P developer on 26.8.1994 through a letter invited to attend a meeting between the developer and the flat owners/intending flat owners for a meeting dated 11.9.1994. In this letter it is mentioned by the O.P that “We admit that all the things might not be in normal course and ,if so, you could burden us by your own quality forgetting our mutual misunderstanding.    More fully it would be very much unjust if I will not confess the incomplete works of the common interest.

            Moreover it was also mentioned in that letter that “I am practically feeling necessity of discussion amongst ourselves so that the unfinished works can be finished peacefully as soon as possible”.

             Keeping in mind that the sanctity of the letter has not been  challenged by the O.Ps and verbally Ld. Advocate for the O.Ps has admitted that the aforesaid letter was written by the O.P/developer.

            Moreover Keeping in mind the  mentioned two documents it is noticed by the Forum that the complainant on the very date of delivery of possession of the flat in question “as is where is condition” gave a letter to the O.P which was received by the O.P on that very date where there is a specific mention about the incomplete works and also about the fact that the balance consideration should not be demanded by the O.P/developer as the flat in question would be completed by the complainant/purchaser at his own cost and the estimate of expenses was mentioned as Rs.1,45,000/- ,which is more than the balance consideration amount recovered from the promoters, which is higher than the amount of the balance consideration.

            It is fact that Ld. Advocate for the complainant has drawn attention about the letter to the complainant dated 27.8.2005 and 3.2.2006  where the O.P has demanded the balance consideration along with ready and willingness to execute and register the deed of conveyance after receiving the balance consideration amount. In this regard, from the aforesaid letter of the complainant dated 27.12.1993 and also the letter of the O.P dated 26.8.1994  we have no hesitation to hold that it is the fact that for the reasons best known to the O.P/developer they have delivered the possession “as is where is condition”. It is also beyond doubt that the flat  and the premises in question was incomplete at the time of delivery of possession in many aspects. There may be a mutual understanding between the complainant and the O.Ps that complainant would complete the unfinished work at his own cost with condition that balance consideration in question  will not be paid by the complainant and ,if any excess cost for completion of the flat in question is required, that would be borne by the O.P.

            We can safely conclude the aforesaid fact undoubtedly as the O.P never has denied that the O.P has received the letter of the complainant dated 27.12.1993 ,on the contrary O.P issued a letter on 26.8.1994 to settle the matter regarding completion of unfinished works regarding the common facilities. The subsequent letter of the O.P as we mentioned earlier dated 27.8.2005 and 3.2.2006 are nothing but an afterthought of the O.Ps to harass the complainant. Therefore, we have no hesitation to hold that the O.Ps/developer is very much duty bound to execute and register the deed of conveyance of the suit flat in favour of the complainant and without claiming any balance consideration but O.Ps have not done the same. Therefore, O.ps are liable for deficiency in rendering services towards the complainant /consumer and O.Ps should execute and register the deed of conveyance of the flat in question in favour of the complainant.  .

            The Ld. Advocate for the O.Ps has raised a point that the case is time barred as the cause of action has arisen on the date of agreement for sale dated 15.11.1993 and the possession was handed over on 27.12.1993 and the case was filed in the year 2015. In this regard he has referred some remarkable judgments of the Hon’ble Appellate Court. We have gone through those judgments and the same are not relevant with the instant case. Moreover, we are highlighting the decision of the Hon’ble Apex Court in the case of  Lucknow Development Authority Vs. M.K. Gandhi  (date of the Jugement 05/11/1993), where it is specifically decided by the Hon’ble Supreme Court that cause of action shall be continued in case of flat and/or plot till the date of delivery of possession or execution and registration of the deed of conveyance. Therefore, we have no hesitation to hold that the case is not at all time barred as the O.,Ps have not executed and registered the deed of conveyance in favour of the complainant till the hearing of argument of the instant case.

            Ld. Advocate for the complainant has referred a remarkable judgment of the Hon’ble National Commission (2006)CPJ 259(N.C) in the case of Yashpal Marwaha Vs. Puspa Builders Ltd. and Ors on 5.9.2015 . Keeping in mind the essence of that remarkable decisions we have no hesitation to hold that delay in execution and registration of the deed of conveyance of the flat in question in favour of the complainant by the O.Ps has caused not only tremendous mental agony and harassment but also huge financial loss. In this regard we should also keep in mind that within this period the amount of stamp duty which is required to be paid by the purchasers/consumer/complainant has raised many times due to development of the area in question. Therefore, in light of the above discussion it is strongly opined by this Forum that O.Ps are jointly and/or severally should execute and register the deed of conveyance of the flat in question as mentioned in the schedule and also aptly compensate the complainant for his mental agony ,harassment and financial loss due to deficiency in service on the part of the O.Ps.

            Before concluding our decision with reasons it should be mentioned here that being one of the partners Sri Debasis Banerjee should not shirk off his liability on the ground that M/s BANCO has been dissolved (letter to the complainant dated 27.1.2015) as Sri Debasis Banerjee being one of the partners received the consideration from the complainant towards the flat in question and he is duty bound to execute and register the deed of conveyance in favour of the complainant with immediate effect without raising any lame excuse.

            Thus all the points are discussed and all are in favour of the complainant and complaint case succeeds.

 

 

 

 

            Hence,

                                                                                    Ordered

That the case be and the same is allowed on contest with cost against both the O.Ps.

The O.Ps are directed jointly and/or severally to execute and register the deed of conveyance in respect of the flat in question as per agreement for sale in favour of the complainant In default Deed of convence shall be executed and registered through the machinery of this Forum in execution stage (if any)  as per provision of the Law, also to pay Rs.50,000/- towards compensation to the complainant for his suffering mental agony and harassment and also to pay Rs.5000/- towards litigation cost to the complainant within 30 days from the date of this order, failing which, O.Ps have to pay jointly and/or severally the interest @10% p.a on the total decreetal amounts from the date of default till its realization .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President                                

 

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

                                                                       

Ordered

That the case be and the same is allowed on contest with cost against both the O.Ps.

The O.Ps are directed jointly and/or severally to execute and register the deed of conveyance in respect of the flat in question as per agreement for sale in favour of the complainant In default  Deed of convence shall be executed and registered through the machinery of this Forum in execution stage (if any)  as per provision of the Law, and also to pay Rs.50,000/- towards compensation to the complainant for his suffering mental agony and harassment and also to pay Rs.5000/- towards litigation cost to the complainant within 30 days from the date of this order, failing which, O.Ps have to pay jointly and/or severally the interest @10% p.a on the total decreetal amounts from the date of default till its realization .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President