DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
C.C. CASE NO. 124 OF 2015
DATE OF FILING :_10.3.2015 DATE OF PASSING JUDGEMENT: _7.8.2018
COMPLAINANT : Sri Raja Das, son of Sri Asit Das of 28, Nafar Chandra Das Road, P.S Behala, Kolkata – 34.
O.P/O.Ps : 1. Sri Subrata Halder, son of late Subash Halder of 22, East Barisha Govt. Colony, P.S Thakurpukur, Kolkata – 63.
2. Sri Sukanta Halder, son of late Subash Halder of 22, East Barisha Govt. Colony, P.S Thakurpukur, Kolkata – 63.
3. M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104, represented by its Partners O.P nos. 4,5,6
4. Sri Aloke Sarkar, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
5. Sri Mainak Sen, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
6. Sri Debasis Chatterjee, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
A N D
C.C. CASE NO. 92 OF 2017
DATE OF FILING :_10.7.2017 DATE OF PASSING JUDGEMENT: _7.8.2018
Complainant : Sri Subrata Halder, son of late Subash Halder of 22, East
Barisha Govt. Colony, P.S Thakurpukur, Kolkata – 63.
O.Ps : 1. M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104, represented by its Partners O.P nos. 2,3 and 4
2. Sri Aloke Sarkar, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
3. Sri Mainak Sen, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
4. Sri Debasis Chatterjee, Partner of M/s Intact Construction Projects, 18A, Diamond Park, P.S Thakurpukur, Kolkata – 104
Proforma O.P : Sri Sukanta Halder, son of late Subash Halder of 22, East Barisha Govt. Colony, P.S Thakurpukur, Kolkata – 63.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Along with the case record of C.C no. 124 of 2015 is taken up the case record of C.C no. 92 of 2017 ,which has been transferred to this Forum by the Hon’ble State Commission vide its order dated 7.6.2017 passed in Transfer Application no.TA/4/2017 for disposal of the same analogously with case record being C.C no. 124 of 2015 .
After receipt of the case record of C.C no. 60 of 2017 filed in the DCDRF, Unit III,Kolkata, it has been renumbered herein as C.C no. 92 of 2017.
The deck is now all clear for disposal of the two cases and the two records are now disposed of by passing a common judgment.
The controversial facts leading to the filing of the two cases may be epitomized as follows.
In C.C no. 124 of 2015, the complainant is the purchaser; O.P nos. 1 and 2 are the land owners and O.P nos. 3 to 6 are the developers. The complainant namely Raja Das made a Sale Agreement dated 30.6.2013 with the O.Ps and thereby the O.P nos. 1 and 2 i.e the land owners agreed to sell one shop room on the ground floor of the subject building from owners ‘allocation for a total consideration price of Rs.4,50,000/- . Rs.4 lac was paid by the complainant to the owners i.e O.P nos. 1 and 2 on 30.6.2013 and the balance consideration price of Rs.50,000/- was to be paid at the time of registration of the sale deed in respect of the shop room. Possession of the shop room was delivered to the complainant on 30.6.2013. But no registration has been done as yet ,despite repeated requests on behalf of the complainant made to the owners i.e O.P nos. 1 and 2. Therefore, the complainant has filed the aforesaid cases i.e C.C no. 124 of 2015 ,praying for execution and registration of the sale deed and also for compensation etc.
In another case i.e C.C.no.92 of 2017, one of the aforesaid land owners i.e Subrata Halder is the complainant. According to him, the developers as mentioned above agreed by the development agreement dated 20.12.2008 executed in favour of them to provide two self contained finished flats measuring 610 sq.ft carpet area of each of the flats and two separate garage spaces on the ground floor after completion of the construction of the said building in owners ‘allocation. Construction of the building was completed and whatever was agreed to be given to them by the developers was also given to them except the garage space on the ground floor. The allegation of the complainant i.e Subrata Halder is that the developers have unauthorisedly converted the car parking spaces into shop rooms in violation of the terms and conditions of the agreement and sanctioned plan. Therefore, the complainant i.e Subrata Halder has filed the aforesaid case ,praying for delivery of possession of garage space after demolition of unauthorized construction and payment of compensation etc. Hence, arise the two cases.
Written version of the statement is filed in C.C no.124 of 2015 by Subrata Halder i.e O.P-1, wherein it is contended by him that he did not execute the sale agreement dated 30.6.2013 in favour of the complainant. The developers i.e O.P nos. 3 to 6 requested him to execute a document to secure a loan amount and accordingly he executed and registered the said document on good faith without understanding the contents thereof, as the said document was written in English. Possession letter was also procured from him by the complainant in collusion with the O.P developers. The car parking spaces on the ground floor which were allotted to him as ‘owners allocation’ have been illegally converted into the shop rooms and this is deficiency in service on the part of the developers. As this agreement dated 30.6.2013 of the complainant is void abinitio the complaint should be dismissed in limini.
In case no. C.C no. 92 of 2017 written version of the statement has been filed by the O.P developers ,wherein it is contended by them that development agreement dated 20.12.2018 was executed between the land owners and them and they have delivered everything to the owners in terms of the said agreement. Garage space on the ground floor has been converted into shop room in terms of the sanctioned plan of KMC. The said shop room falls in ‘owners allocation’ and the land owners have sold away the said shop room to one Raja Das i.e the complainant in C.C no. 124 of 2015 in pursuance of a Sale Agreement dated 30.6.2013 executed by the land owners in favour of Raja Das for a total consideration price of Rs.4,50,000/-. Raja Das has also paid Rs.4 lac to the land owners and the land owners have also delivered the possession of the said shop room to the said Raja Das. Now, the complainant i.e Subrata Halder has filed the case being no.CC 92 of 2017 only to avoid the sale agreement of Raja Das. He has suppressed the material facts before the Forum and has not come before the Court with clean hands. The developers have already discharged their liabilities and ,therefore, there arises no question of deficiency in service on their part. The complaint filed by Subrata Halder i.e C.C no. 92 of 2017 should ,therefore, be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Whether the developers have not delivered the ‘owners allocation’ in pursuance of Development Agreement dated 20.12.2008?
- Whether they have thereby been guilty of deficiency in service for violation of terms of development agreement?
- Whether the developers are guilty of deficiency in service for converting the car parking space unauthorisedly into a shop room on the ground floor of the subject building?
- Whether the complainant in C.C no. 92 of 2017 is entitled to get the relief or reliefs as prayed for ?
- Whether the complainant in C.C no. 124 of 2015 is also entitled to get the relief or reliefs as prayed for ?
EVIDENCE ON AFFIDAVIT
The contesting parties have led their evidence on affidavit and the same are kept in both the records.
DECISION WITH REASONS
Point no.1,2,3,4 & 5 :
Already heard the submissions of Ld. Lawyers ,appearing for both the parties. Perused the petition of complaint, written version of the statement filed in both the cases and also the documents filed by the parties. Considered all these.
Now to see whether the developers have committed any deficiency in service by deviating from the terms of development agreement dated 20.12.2008 which was reached between the developers and the land owners.
The land owners herein are two brothers –Subrata Halder and Sukanta Halder. They entrusted the developers to raise a multistoried building upon their land in terms of the development agreement dated 20.12.2008. The developers agreed to provide two flats to the land owners and also two car parking spaces to the land owners on the ground floor of the said building. These were allocated to the land owners as their share and this is specifically mentioned in the development agreement dated 20.12.2008. Now, the developers contend that they have provided everything to the land owners in terms of the development agreement . The land owners do not raise any objection to the contention for the developers except one . The sole objection of the land owners is that the developers have unauthorisedly converted the car parking space in the ground floor into shop room and has sold away the same to Raja Das, the complainant in C.C no. 124 of 2015.
Let us see whether the developers have actually violated the terms of the development agreement by converting the car parking spaces unauthorisedly into flat/shop rooms. It is also to be seen whether the developers have actually sold away the said flat/shop room to Raja Das.
It is the version of the developers that the car parking spaces were converted into flat/shop rooms after taking permission from the concerned municipality and with the consent of the land owners. His further case is that they did not sell away the said shop room to Raja Das ,but it is the land owners who agreed to sell away the said shop room to Raja Das by having taken consideration price from him. A building sanctioned plan dated 12.11.2011 of KMC is filed herein in the case record of C.C no. 92 of 2017. A perusal of this sanctioned plan reveals that there are two shops rooms on the ground floor of the building. A further perusal of this sanctioned plan also reveals that the two land owners i.e Subrata Halder and Sukanta Halder have also signed the sanctioned plan of the Municipality. Having taken this sanctioned plan into consideration, we feel constrained to say that the conversion of car parking spaces into shop rooms or flats , whatever they may be, was done in accordance with the sanctioned plan of KMC. Therefore, such conversion can never be called unauthorized conversion made by the developers of the subject building. That apart, the sanctioned plan bears the signatures of the two brothers i.e the land owners and this also goes a long way to indicate that the land owners had their consent behind the conversion made by the developers.
It has been contended on behalf of Subrata Halder i.e the complainant in C.C no. 92 of 2017 that he never executed any sale agreement on 30.6.2013 in favour of Raja Das in respect of any shop room on ground floor from their allocation. According to him, the developers procured a document from him with the plea that they would thereby secure a loan and that he signed the said document on good faith without understanding anything about the contents of the said documents ,because the said document was written in English. It is further submitted on his behalf that the possession of delivery certificate was also procured from him having misguided him.
The possession of the flat/shop room has been delivered to Raja Das and such possession has been delivered to Raja Das by none but the land owners. It is the version of Subrata Halder that possession certificate has been procured from him. Possession certificate may be procured from him by the developers; but what with the actual delivery of possession. Whether actual delivery of possession has also been procured from him by the developers. Wrong is committed. But by its very nature, it always leaves a trail to give trace of it to others. There is nothing said by Subrata Halder about the actual delivery of possession of the flat/shop room to Raja Das. It is the case of Raja Das i.e the complainant in C.C no. 124 of 2015 that he paid Rs.4 lac to the land owners out of total consideration price of Rs.4,50,000/- for the flat/shop room on the ground floor. The receipt of Rs. 4 lac by the land owners is nowhere denied by Subrata Halder in the written statement filed by him. That apart, Subrata Halder has kept it concealed in his petition of complaint that they have executed a sale agreement in favour of Raja Das , that they have received Rs.4 lac from Raja Das as part payment of consideration price in respect of a flat/shop room on the ground floor of the building and that the possession of the said shop room/flat has already been delivered to Raja Das. Suppression of these material facts by him indicates and indicates only that he i.e Subrata Halder has not approached the Forum with clean hands . A person does never dare to face a Court of Law or Forum with clean hands ,when there is hovering dark cloud in the firmament of his case. A guilty person is always suspicious and this being so, the land owners i.e Subrata Halder does not have the courage to disclose all the material facts before the Forum. His case that he did not execute the sale agreement in favour of Raja Das is nothing but a figment of imagination and is absolutely a concocted one. He accepted the consideration price of Rs.4 lac from Raja Das as the consideration price of the flat/shop room on the ground floor and he delivered the possession of the said shop room/flat to Raja Das and the car parking spaces were converted into the shop room/flats with their consent. It has already been mentioned that the two brothers are land owners of the subject building and their names are Subrata Halder and Sukanta Halder.Subrata Halder is giving out that he did not execute the sale agreement in favour of Raja Das .But his brother Sukanta Halder does not say anything regarding the genuineness of execution of sale agreement dated 30.6.2013. He could have joined Subrata Halder in filing the complaint and could have submitted before the Forum that the sale agreement was not actually executed by them. But he does not come before the Forum. Why? Is it only for the reason that the sale agreement was a genuine one and, therefore he does not prefer to challenge it before the Court of Law. An honest person will think twice to say anything otherwise against what is true and this being so, the another land owner i.e Sukanta Halder has kept himself aloof from challenging the genuineness of the sale agreement dated 30.6.2013 executed by them in favour of Raja Das ,the complainant in C.C no. 124 of 2015.
Upon what have been discussed above, it is found that Subrata Halder i.e the complainant in C.C no. 92 of 2017 has no cause of action to file the said case. He has not come up before the Forum with clean hands. He is not entitled to get any relief as prayed for. On the other hand Raja Das ,the complainant in C.C no. 124 of 2015 has lawfully made agreement for sale on 30.6.2013 and the sale agreement is executed by the two brothers i.e Subrata Halder and Sukanta Halder . The developers have not deviated from any terms of the development agreement by converting the car parking spaces into flat/shop rooms. The consideration price of Rs.4 lac has already been paid by Raja Das to the land owners. The sale agreement was genuinely executed by the land owners and now Subrata Halder i.e the complainant in C.C no. 92 of 2017 is seen to have denied the execution of the sale agreement for extraneous motive only. The complainant namely Raja Das is, therefore, entitled to get the relief and the reliefs are provided to him accordingly as hereunder.
The points as referred to above are thus disposed of.
Hence,
ORDERED
That the complaint case being C.C no. 124 of 2015 be and the same is hereby decreed on contest against O.P-1 and exparte against the rest of the O.Ps with a cost of Rs.10,000/- to be paid by O.P-1 i.e Subrata Halder to the complainant i.e Raja Das.
The case i.e C.C no. 92 of 2017 is hereby dismissed on contest against the O.P nos. 1,2,3 and 4 and exparte against O.P-5, but without any cost.
The O.Ps , particularly the two brothers i.e Subrata Halder and Sukanta Halder are directed to execute and register the deed of conveyance in favour of the complainant i.e Raja Das in respect of the shop room as described in the schedule to the complaint in C.C no. 124 of 2015 within a month of this order , after having received balance consideration price of Rs.50,000/- from the complainant, i.e Raja Das.
O.P-1 Subrata Halder is directed to pay a sum of Rs.40,000/- to the complainant i.e Raja Das as compensation to mitigate the cost of registration which ahs been hiked in the meantime and also to pay a sum of Rs.10,000/- as compensation for harassment and mental agony caused to the complainant i.e Raja Das by O.P-1 ,within a month of this order ,failing which the cost amount and the amounts of compensations as mentioned on two counts will bear interest @8% 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
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President
President
