West Bengal

South 24 Parganas

CC/338/2012

1. MR. SANTANU MUKHERJEE. - Complainant(s)

Versus

1. M/S. DHAN SIRI, A PROP. FIRM. - Opp.Party(s)

ARINDAM MUKHERJEE.

20 Apr 2015

ORDER

     DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _338_ OF ___2012_____

 

DATE OF FILING : 23.11.2012     DATE OF PASSING JUDGEMENT: 20.4.2015

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Dr. (Mrs.)  Shibani Chakraborty

                                                                             

COMPLAINANT             :   1. Mr. Santanu Mukherjee,s/o late Sankar Mukherjee

                                                2. Mrs. Soma Mukherjee, w/o Santanu Mukherjee

                                                Both of A-31, Brahmapur More, P.S. Bansdroni,Kol-96.

 

-VERSUS  -

 

O.P/O.Ps                            :    1. M/s Dhan Siri of 114/3, Raja S.C. Mullick Road, P.S. Patuli, Kol-47

                                                2.  Sri Ajay Chowdhury,s/o Sri Chitta Ranjan Chowdhury ,Prop. Of M/s

Dhan Siri of “Dhan Siri House”, Mazumder Para, Barhans Fartabad, P.S. Sonarpur,Kol-84.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            It is the short case of the complainant that they entered into an agreement for sale on 22.9.2011 with O.P/developer and thereafter supplementary sale agreement dated 24.9.2011 with the O.P/developer in respect of flat being no.4 measuring super built up area of about 848 at a consideration of Rs.18,65,000/- @ 2200/- per sq.ft on the first floor rear portion of the building situated at premises no.60, known as A/15, Narkel Bagan, Kamdahari, P.S. Bansdroni, Kolkata-84. 

            The further case of the complainant in para 5 is that in the agreement for sale dated 22.9.2011 the total consideration money of the flat has not been properly calculated and wrongly shown the amount of Rs.19,80,000/- instead of 18,65,000/- in the agreement for sale dated 22.9.2011. It has further stated that the complainant had already paid a sum of Rs.18 lacs towards the earnest money to the developer and subsequently in terms of the supplementary agreement the period of delivery of possession of the said flat on receiving the full amount of consideration was mentioned 120 days from the date of agreement M.A according to the specification as mentioned in M.A. The developer should hand over the complete ready flat to the purchaser. It has further alleged that inspite of payment of Rs.18 lacs out of Rs.18,65000/- the O.P developer did not hand over the possession of the flat. It has further stated that the complainants are ready and willing to pay the said Rs.65000/- . It has claimed that after expiry of the said period complainants requested the O.Ps to execute and register the deed of conveyance and complainants have already prepared the draft deed of conveyance and they were ready and willing to bear the cost of such registration charges as per Law through their Ld. Advocate but the O.P nos. 1 and 2 failed and neglected to do the same without acknowledging the same. It has further alleged that the O.Ps are trying to transfer or to alienate and part with possession of the vacant space on the ground floor of the building which is the statutory size space of the building according to the Kolkata Municipal Corporation Rules for which the O.P is negotiating with the outsiders. Inspite of several requests and sending legal notice by the complainants, the O.Ps failed and neglected to deliver the vacant possession of the flat and to execute and register the deed of conveyance in respect of the said flat in favour of the complainant, for which, complainants pray for damages @Rs.20,000/- per month since the O.Ps intentionally, willfully and deliberately have refused the same. Hence, this case with a prayer to pass necessary direction upon the O.Ps to deliver vacant possession of the flat in dispute and to execute and register the deed of sale in respect of the said flat in favour of the complainants upon acceptance of the balance consideration money of Rs.65000/- through Bank Draft or A/C payee cheque and also prays for direction upon the O.Ps to pay Rs.20,000/- per month and damagers /interest with effect from the date of expiry to deliver the vacant possession of the said flat upon the complainants and directions upon the O.Ps to pay compensation of Rs.30,000/- and other reliefs as the Ld. Forum may deem fit and proper.

            The O.P nos.1 and 2 contested the case by filing written version and denying all the allegations leveled against them.

            It is the positive case of the O.Ps that complainants were liable to pay Rs.19,80,000/- in total out of that complainants had paid Rs.18 lacs since it was agreed by the parties. It has further stated that due to non-payment of entire consideration money the developer did not hand over flat to them not taking any initiative for execution of the deed of conveyance in favour of them. Hence, prays for dismissal of the complaint petition.

            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 outset it must be stated that this Forum already passed the judgement on 24.6.2013 and in terms of the judgement the case was decreed on contest against O.P nos. 1 and 2 and exparte against O.P-3 but without cost and compensation in view of the observation made in the body of the judgement.

            It has further direction to execute and register the deed of conveyance and deliver possession of the property in question as per agreement and supplementary agreement within one month from this day, failing which, the complainants shall be at liberty to put the decree into execution in accordance with law.

            In the body of the judgement it appears that O.Ps are bound to execute and register the deed of conveyance and deliver possession of the property in question after receiving the balance consideration money of Rs.65000/- and complainant is also entitled to get a sum of Rs. 15000/- towards litigation cost and compensation of Rs.50,000/- .

            Be that as it  may,  against the said judgement the O.P/developer preferred an appeal being First Appeal no. FA/752/2013 before the Hon’ble State Commission and Hon’ble State Commission passed their judgement on 12.12.2014 and in terms of the judgement “Appeal is allowed in part on contest without cost. The case is sent back on remand to the Ld. District Forum with a direction to the Ld. District Forum to appoint an Engineer Commissioner from the approved list of LBS , cost of which will be borne by both sides and the said Commissioner will measure the flat in question in presence of both sides after service of notice upon both sides and thereafter decide the matter afresh on the basis of the report furnished by the Engineer Commissioner. The impugned judgement is set aside”.

            After going through the observation in setting aside the judgement passed by this Forum,   it appears that the moot point is the measurement of the area of the flat in question, wherein the complainant has filed a report regarding area of the flat which shows that the area of the flat is 705 s.ft and on the other hand developer filed a report regarding the area which shows 913 sq.ft super built up area, for which Hon’ble State Commission directed us to appoint one Engineer Commissioner who will be able to decide the same and the said Commissioner will be from the approved panel of LBS. It should be mentioned here that Ld. Advocate of the appellant, herein the O.P, also raised another point that various extra works had been done as per instruction of the respondent/complainant ,for which they are liable to extra amount which has been spent for the extra work. But the Hon’ble State Commission did not pay any heed to the submission and no such direction was imposed to decide that point upon this Forum.

            Thus on a moment scrutiny, we find that  that the said point of extra amount for extra work has go-bye before the Hon’ble State Commission.

            Be that as it may, there is no scrap of papers in the case record showing the expenditure of work. Probably for that reason Hon’ble State Commission did not consider the said argument advanced by the Ld. Advocate of the O.P/respondents.

            The Ld. Advocate of the O.P raised another point i.e. liquidating the fixed deposit for the interest of the complainant to the Bank and that amount is also due. This liquidation of fixed deposit is not based in terms of the agreement. So, if the O.P has really liquidated any fixed deposit in favour of the complainant, then they can easily get the same by filing money suit but he will not get any relief in the instant case,  where we find only deficiency in service and unfair trade practice in terms of the agreement.

            The Ld. Advocate of the O.P also raised another point that this Forum has no pecuniary jurisdiction because the total consideration money of the constructed flat no.4 of the first floor rear portion of the three storied building is Rs.19,80,000/- in terms of the payment schedule of the agreement itself.

            We have perused the agreement dated 22.9.2011 and from the payment schedule it appears that Rs.19,80,000/- is to the total consideration money. But complainant has stated in his written complaint in para 5 that it was wrongly calculated and the total consideration money will be 18,65,000/- in place of 19,80,000/- because the super built up area is 848 sq.ft taking into consideration 20% super built up area. Now, we have received the Engineer Commissioner’s report in terms of the direction of the Hon’ble State Commission, wherein we find that Swapan Sarkar , Engineer Commissioner, has taken measurement in presence of the complainant and O.Ps and others and from the measurement sheet prepared at the site we find that Mrs. Soma Mukherjee, complainant, was present and put her signature . Mr. S Mukherjee, the husband of the complainant was present and Mr. Ajay Chowdhury , the O.P, was also present and put his signature . Apart from that Sri Hiranmay Mukherjee, One Engineer, was present and Tanmoy Roy was present. The said inspection was held on 24.1.2015 according to the sketch map and signature appearing in the field note. From the report of the Engineer Commissioner we find that total super built up area was 81.79 sq.meter and if we converted it into sq.ft then it comes 880.0604 sq.ft i.e. 880 sq.ft super built up area. We are aware that per sq.ft rate is 2200/-. 880 x 2200= 19,36,000/- total price. Apart from that compensation has prayed for Rs.30,000/- .

            In view of the reported decision of the Hon’ble National Commission reported in 1996(2) CPR 26 – jurisdiction of the Forum has to be based on quantum of relief put together i.e. aggregate of value of goods and compensation or aggregate value of goods and services and compensation or the Hon’ble State Commission has observed in S.C no.RP/164/2013 that it is settled Law that determination of pecuniary jurisdiction in respect of the dispute regarding services relating to housing would be including the value of the property as a whole as well as compensation demanded in the complaint. Otherwise, a dispute related to a house property worth several crores of rupees would fall within the jurisdiction of a District Forum .

            This obviously is not the intention of the legislature.

            Here in the instant case we find that the total value of the flat is Rs.19,36000/- and compensation prayed for is Rs.30,000/- which is within the jurisdiction of this Forum since it is less that Rs.20 lacs. But in the said judgement question of taking into consideration of amount of damages did not take place. Probably that damage is a matter of proving the same and based upon the concerned Bench where a dispute is going to be settled.  If we turn our eyes in the judgement passed in this case by my Ld. Predecessor ,wherein we find that damage was not considered. Thus in all respect the case is maintainable and this Forum has pecuniary jurisdiction since the same is within Rs.20 lacs.

            Admittedly Rs.18 lacs was paid by the complainant and we find that total consideration money of the flat is Rs.19,36000/-.So, complainant has to pay remaining amount i.e. Rs.1,36,000/- and complainant will get compensation to the tune of Rs.30,000/- and litigation cost of Rs.5000/- since the procedure of the Forum is very cheaper one. The prayer for damages of Rs.20,000/- per month is not considered since the grant of such claim has not been proved in the eye of Law.

            No other point is left out to decide the matter after remand and we have also considered the ground of pecuniary jurisdiction as claimed after remand by the Ld. Advocate of the O.P since in view of the reported decision of the Hon’ble National Commission reported 2012(3) CPR Page 352 it has specifically7 mentioned that jurisdiction can be decided and can be raised at any stage even at execution stage, that is why we have considered the said valuable submission of the Ld. Advocate of the O.P. But we find on a moment scrutiny that the O.Ps have no leg to stand upon on that point on the basis of the observation made hereinabove.

            It is well known to us in view of the reported decision of the Hon’ble National Commission reported in II (2003) CPJ page 170 that Consumer Forum must avoid technicalities. So, we have considered all the pros and cons of the case in hand and dispute of the parties even after remand . We have appointed Engineer Commissioner from the approved panel of LBS and the report of Engineer Commissioner already explained above and we find that the O.Ps made unfair trade practice by mentioning wrong calculation in the agreement dated 22.9.2011 in respect of the payment schedule and total consideration money of the said flat i.e. Rs.19,80,000/- and super built up area of 913 sq.ft which have been decided in view of the solemn direction of the Hon’ble State Commission after appointing Engineer Commissioner that the said sq.ft is 880 not 913 even not 848 as claimed by the O.P and complainant respectively. Now the complainants have to arrange Rs.1,36,000/- the remaining consideration money and thereafter inform the O.P to that effect and thereafter O.P will arrange for possession of the flat and execution and registration of the deed of conveyance of the flat as mentioned in the agreement within the period mentioned below.

            With that observation it is,

                                                                        Ordered

That the application under section 12 of the C.P Act 1986 is allowed on contest after remand from the Hon’ble State Commission.

The complainants are directed to arrange Rs.1,36,000/- within 15 days from the date of this order and O.Ps are directed to arrange execution of the Deed of Conveyance and registration of the flat positively within one month from the date of arrangement of the such fund by the complainant ,which will be intimated to the O.Ps through speed post.

The O.Ps will also pay compensation of Rs.30,000/- and litigation cost of Rs.5000/- to the complainant within 30 days from the date of this order, failing which, the complainants are at liberty to execute the order through this Forum and in that event complainants have to deposit the remaining consideration of Rs.1,36,000/- to this Forum and apply for execution and registration of the deed of conveyance through the machinery of the Forum along with compensation and litigation cost by filing execution application. The application V/5 13 (B) Act is also dispose off.                  

Let a plain copy of this order  be sent to the O.Ps through this Forum and one copy be handed over to the complainant free of cost.

 

                                                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

That the application under section 12 of the C.P Act 1986 is allowed on contest after remand from the Hon’ble State Commission.

The complainants are directed to arrange Rs.1,36,000/- within 15 days from the date of this order and O.Ps are directed to arrange execution of the Deed of Conveyance and registration of the flat positively within one month from the date of arrangement of the such fund by the complainant ,which will be intimated to the O.Ps through speed post.

The O.Ps will also pay compensation of Rs.30,000/- and litigation cost of Rs.5000/- to the complainant within 30 days from the date of this order, failing which, the complainants are at liberty to execute the order through this Forum and in that event complainants have to deposit the remaining consideration of Rs.1,36,000/- to this Forum and apply for execution and registration of the deed of conveyance through the machinery of the Forum along with compensation and litigation cost by filing execution application. The application V/5 13 (B) Act is also dispose off.         

Let a plain copy of this order  be sent to the O.Ps through this Forum and one copy be handed over to the complainant free of cost.

 

                                                Member                                               President