West Bengal

South 24 Parganas

CC/107/2016

Smt. Sulekha Nath,Wife of Sri Dinesh Chandra Nath. - Complainant(s)

Versus

1. M/S. Bindhachal Construction. - Opp.Party(s)

Rajib Sinha

24 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _107_ OF ___2016

 

DATE OF FILING : 20.9.2016                       DATE OF PASSING JUDGEMENT:  _24.5.2018_

 

Present                         :   President       :   Ananta Kumar Kapri

 

                                        Member(s)    :    Subrata Sarker  & Jhunu Prasad

                                                                             

COMPLAINANT        :     Smt. Sulekha Nath, wife of Sri Dinesh Chandra Nath of 68, Jadav Sarkar Road, P.O Rajpur, P.S Sonarpur, Dist. South 24-Parganas, Kolkata-149.

 

•  VERSUS  -

 

O.P/O.Ps                            :   1.   M/s Bindhachal Construction at Jadav Sarkar Road, Baikunthapur, P.O Rajpur, P.S Sonarpur, Kolkata – 149 and permanently at Vill. & P.O Sahidakhali, P.S Hingalganj, Dist. North 24-Parganas, Pin-743435.

                                            2.    Sri Mithun Mistry, son of Sukumar Mistry, Prop. Of M/s Bindhachal Construction, presently residing at Jadav Sarkar Road, Baikunthapur, P.O Rajpur, P.S Sonarpur, Kolkata – 149 and permanently at Vill. & P.O Sahidakhali, P.S Hingalganj, Dist. North 24-Parganas, Pin-743435.

                                           3.  Sri Subhasish Mondal, son of Sri Mahadev Mondal of B-1/5, 001, Prantik Pearless Housing Society, P.O R.K Pally, P.S Sonarpur, Kolkata – 150.

                                           4.   Sri Asit Kumar Ghosh, son of late Nanigopal Ghosh.

                                           5.   Smt. Shyamali Ghosh, wife of Sri Asit Kumar Ghosh, both of 68, Jadava Sarkar Road, P.O Rajpur, P.S Sonarpur, Kolkata – 149.

                                           6.   Sri Karunamoy Nath

                                           7.   Sri Prabir Kumar Nath

                                           8.   Sri Ganesh Chandra Nath

                                           9.   Sri Dinesh Chandra Nath

                                           10. Sri Kamalesh Nath

                                           11. Sri Samaresh Nath

                                           All sons of late Harendra Nath of 68, Jadava Sarkar Road, P.O Rajpur, P.S Sonarpur, Kolkata – 149.

________________________________________________________________________________

                                                            J  U  D  G  M  E  N  T

 

Sri Ananta Kumar  Kapri, President

     The summation and summarization of the complain case is that O.P-1 is a Firm and O.P-2 is the Proprietor thereof. O.P-3 is the present developer; O.P nos. 6 to 11 are land owners. O.P nos. 4 and 5 are transferee in respect of the subject flat from O.P-3.

     An agreement for sale was executed by and between the complainant and O.P-2, the then developer in respect of a self contained flat succinctly described in schedule to the complaint for a consideration price of Rs.11,50,000/-, out of which Rs.10 lac was paid to O.P-2 by the complainant on the date of sale agreement. Thereafter, O.P-2 transferred his liability to O.P-3 by a Deed of Assignment dated 21.9.2014 and the land owners i.e O.P nos. 6 to 11 were confirming parties to that Deed of Assignment. Complainant’s name also transpires in the said Deed of Assignment. Thereafter, an agreement dated 30.10.2014 was executed between the complainant and O.P-3 and the O.P-3 has acknowledged full and final payment of Rs.10 lac therein. O.P-3 did not register any sale deed in favour of the complainant, nor did he deliver the possession of the flat to her. He i.e O.P-3 sold away the subject flat, which was allotted to the complainant, to the O.P nos. 4 and 5 on 31.12.2015 and also delivered possession thereof to them, having registered a Deed of Conveyance in their favour. Now the complainant prays for registration of the flat, delivery of possession thereof, eviction of O. P nos. 4 and 5 from the said flat and also for payment of compensation etc. Hence, this case.

     The O.P-3 has filed written statement to contest therein. Bu the written statement filed by him appears to be nothing but a track of denials only.

     The O.P nos. 4 and 5 have also filed written statement ,wherein it is contended by them that they are the purchasers for value without notice of the agreement concluded between the complainant and the O.P-3. According to them, O.P-3 has registered a Sale Deed in their favour and also delivered possession of the subject flat to them . As they are now in possession of the subject flat and ,therefore, the complaint should be dismissed in limini.

     BY filing written statement, O.P nos. 6 to 11 have submitted that there are three flats only on the first floor of the building and out of them one is allotted and occupied by the land owners. But, for the remaining two flats O.P-2 took money from the four persons including the present complainant promising them to sell flat. O.P-3 has now sold away one of those flats to O.P nos. 4 and 5 and also handed over possession of the said flat to them. According to them, the land owners have not received any consideration price from any person and, therefore, they are not liable in any way in this case.

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

 

1. Are the O.Ps liable for deficiency in service as alleged by the complainant?
2. Is the complainant entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

The evidences led by the parties , questionnaires, replies and the BNAs filed by the parties are kept in the record for consideration.

DECISION WITH REASONS

Point no.1 & 2 :-

Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the complaint, written version submitted by the parties and evidences on record. Considered all these.

Some undisputed facts have cropped up to the surface in this case. The undisputed fact is that O.P nos. 4 and 5 have purchased the subject flat from the present developer i.e O.P-3 and the Deed of Conveyance has also been registered in favour of them in respect of the said flat. Also undisputed is the fact that the O.P nos. 4 and 5 have no notice about the agreement executed between the complainant and O.P-3 or O.P-2. So, it is established on such unchallenged facts that the O.P nos. 4 and 5 are bonafide purchasers for value without notice of the agreement of the complainant and this being so, these O.Ps i.e O.P nos. 4 and 5 cannot be dispossessed from the subject flat in accordance with the provisions of Law.

Now to see , what is the remedy available to the complainant in the contest of the findings as aforementioned. It is fact that the complainant has paid Rs.10 lac to the O.P-2 as part payment of consideration price of the subject flat. The agreement for sale dated 2.3.2012 executed by O.P-2 in favour of the complainant is not denied by the O.P-2 and it remains unchallenged. By this agreement it is proved that O.P-2 agreed to sell reschedule falt to the complainant for Rs.11,50,000/- and that Rs.10 lac was received by him from the complainant ,vide Schedule C to the said agreement. Two money receipts (photocopies) dated 1.3.2012 and 2.3.2012 have also been filed by the complainant and these money receipts also go to prove that Rs.10 lac was received by O.P-2 from the complainant . Another agreement was executed by and between the complainant and O.P-3 on 30.10.2014 and a photocopy of this agreement is also filed hrein. By this agreement, O.P-3 has acknowledged payment of Rs.10 lac as full and final payment made by the complainant. All these go a long way to prove that the complainant made payment of Rs.10 lac to O.P-2. O.P-2 is not coming before the Corut to contest herein.

Now to see whether O.P-3 is liable to the complainant for refund of the said amount to the complainant. O.P-3 has assumed all liability of O.P-2 by virtue of Deed of Assignment dated 21.9.2014. The Law requires that the burden of a contract can only be transferred or assigned with the consent of the promise. In the instant case, the complainant has not signed the Deed of Assignment dated 21.9.2014. So, the Deed of Assignment appears to be not in accordance with the Law in so far as the liability of O.P-2 towards the complainant is concerned. O.P-2 still remains liable to the complainant for having the payment from the complainant. A photocopy of the Deed of Conveyance is filed herein.It is mentioned therein that M/s Bindhachal Construction of which O.P-2 is the Proprietor is the assignor of the said Deed of Assignment dated 21.9.2014 and the term “Assignor”includes the heirs, executors, administrators and assignors of O.P-2. O.P-3 is the assignee of O.P-2. So, by virtue of the above terms of the agreement, he undertakes all the liabilities of O.P-2. So, he is also held liable to the complainant in this regard.

 

Now it is found that the possession of the subject flat has already been delivered to O.P. nos. 4 and 5 and that the O.P. nos. 4 and 5 have ensconced in the said flat. So, it is better for the complainant to take refund of the consideration price which she paid to O.P. 2. The price of the subject flat has gone up much more by this time. The complainant paid part  of the consideration price in the year 2012 and not it is 2018. Within these six years, the market price of the subject flat have not remained standstill; it has been hiked many times. The same subject flat which the complainant agreed to purchase from the O.P.- 2 in the year 2012 for a consideration price of Rs. 11,50,000/- has been sold to O.P. nos. 4 and 5 byO.P.-3 on 24/08/2015 for a consideration price of Rs. 16,28,000/- value of the subject flat has increased by 5 lacs during 3 years and it becomes crystal the two documents i.e. the agreement of the Complainant dated 2/03/2012 and the sale deed dated 24/08/2015 of O.P. nos. 4 and 5 are considered together. So, in these circumstances,. We come to find that the complainant will have to suffer a loss of huge amount i.e. Rs 5 Lac at least if she is to purchase another flat of same kind elsewhere.

That apart, the complainant has also undergone tremendous harassment and mental agony caused to her by unfair act of the two developers i.e.O.P. nos. 2 and 3 and they will have to compensate the complainant for the loss sustained by her in addition to refund of money along with interest.

O.P. nos. 6 to 11 are merely land owners and they have no liability towards the complainant, as they are not service providers of her.

In the result , the case succeeds,

Hence,

ORDERED,

That the complaint case be and the same is decreed on contest against the O.P. -3 and decreed exparte against O.P. nos. 1 and 2 with cost of Rs. 10,000/- to be paid to the Complainant by both the developers.

The case stands dismissed against Land owners i.e. O.P.nos 6 to 11.

 The O.P. nos. 2 and 3, who are held jointly and severally liable for all payment to the Complainant, are directed to refund Rs. 10 Lac to the Complainant with interest at reasonable rate of 6 % p.a. from the date of payment till full realization thereof.

 They are also directed to pay Rs. 5 Lac as compensation for loss sustained by the Complainant due to appreciation of value of flat, Rs. 1 Lac as compensation for harassment and mental agony caused to the Complainant by the, within a month of this order, failing which, the compensation amounts as mentioned above on two counts and also the amount of cost as referred to above will bear interest @ 10 % p.a.till full realization thereof.

 Let a free copy of this order be supplied /sent to the parties concerned at once for taking necessary action. 

     Let a free copy of this order be supplied /sent to the parties concerned at once for taking necessary action.    

                                                                                                       President

I / We agree

                               Member                                                    Member                                                                                                  

Dictated and corrected by me

 

                                President

 

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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                            

Member                                               Member                                                           President