DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _575_ OF ___2014__
DATE OF FILING :28.11.2014 DATE OF PASSING JUDGEMENT: 13/06/2017
28/06/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Sailesh Tiwari, son of Sri Chandra Deo Tiwari of Raj Narayan Roy Choudhury Ghat Road, Howrah-711102.
-VERSUS -
O.P/O.Ps : 1. M/s Lokenath Construction at 46/A, Bama Charan Roy Road, P.S. Parnasree, Kolkata – 34.
2. Smt. Soma Dutta, wife of Utpal Dutta of Kankinara, P.S Naihati, Dist. North 24-Parganas, Pin-743165.
3. Sri Prodipta Bhattacharjee,son of late Prasanta Bhattacharjee of 6/9A, Pashupati Bhattacharjee Road, P.S. Parnasree, Kolkata-34.
4. Sri Dipankar Roy, son of Sri Dilip Roy of46/A, Bama Charan Roy Road, P.S. Parnasree, Kolkata – 34.
5. Smt. Binapani Mukherjee, wife of late Nikhil Ranjan Mukherjee
6. Sri Subrata Mukherjee, son of late Nikhil Ranjan Mukherjee
7. Sri Debobrota Mukherjee,son of late Nikhil Ranjan Mukherjee
8. Smt. Mira Roy, daughter of late Nikhil Ranjan Mukherjee
9. Smt. Mira Mukherjee, daughter of late Nikhil Ranjan Mukherjee
10. Sri Sanjay Mukherjee, wife of Arun Kumar Mukherjee
11.Sri Sandip Mukherjee, son of Arun Kumar Mukherjee
12.Sri Barun Mukherjee, son of late Krishna Kali Mukherjee
13. Sri Samiran Mukherjee, son of late Sunil Baran Mukherjee
14. Sri Sandipan Mukherjee, son of late Sunil Baran Mukherjee’
O.P nos. 5 to14 are residing at 36/1, Rajendra Banerjee Road, P.S. Parnasree, Kolkata – 34.
15. Smt. Tripti Chakraborty, wife of Sri Subhas Chakraborty of Kankinara, P.S. Naihati, Dist. North 24-Parganas, Pin-743165.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short of the complainant is that complainant entered into an agreement for sale with the O.Ps on 11.11.2011 for purchasing a self contained flat measuring about 600 sq.ft super built up area situated on the 3rd floor of the said building in premises no.36/1, Rajendra Banerjee Road, P.S. Parnasree, Kolkata – 34 consisting of two bed rooms, one living cum dining room, one kitchen, two toilets at a total consideration money of Rs.12,60,000/- and complainant initially paid the earnest money of Rs.1,39,000/- to the O.P nos. 1 to 4 as per agreement and it was agreed
that after the work will progress, further payment shall be made and within 12 months from the date of signing the agreement the O.Ps shall execute and register the deed of conveyance in favour of the complainant and hand over possession of the said flat. It has further stated that on 29.6.2012 the O.P nos. 1 to 4 handed over possession of the flat to the complainant who also paid Rs.3,21,000/- . But the O.Ps did not execute and register the deed of conveyance in favour of the complainant. Although possession of the flat was handed over to the complainant but some works are left to get completed like erection of boundary wall, external drainage syste4m, boring water supply for the flat holders and some other repair works and those works are not yet completed by the O.P nos. 1 to 4 even after several requests of the complainant. So, O.P nos. 1 to 4 did not act in terms of the Agreement dated 11.11.2011 and made deficiency in service. It is the claim of the complainant to direct the O.Ps to complete the unfinished and undone works and to execute and register the deed of conveyance , and thereafter receiving balance amount of Rs.9,39,000/- ,as well as compensation of Rs.50,000/- and cost of Rs.25000/- .
The O.P nos. 1 to 4 contested the case by filing written version and has denied all the allegations leveled against them. Admittedly the O.P nos. 1 to 4 agreed to sell the said flat measuring 600 sq.ft super built up area in the 3rd floor of the building at a consideration of Rs.12,60,000/- ,wherein Rs.1,39,000/- was the earnest money. It is also admitted that the total Rs.3,21,000/- has already been paid. It is stated that although complainant is residing in the said flat but one of the land owners already expired for which power of attorney already revoked and the legal heirs are claiming undue claims and have failed to cooperate in the matter of registration for which this answering O.Ps beg to state that they are willing to execute and register the deed of conveyance and not acted any unfair trade practice or improper services etc. or the unfinished works. But fact remains that they have suffered financial distress too.
The case is running in exparte against the land owners O.P nos. 4 to 15 out of that O.P nos. 5 to 11 are the legal heirs of original O.P nos. 5 and 6.
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
Admittedly there was an agreement between the O.Ps with the complainant for purchasing a self contained flat measuring 600 sq.ft super built up area in the 3rd floor of the building at a consideration of Rs.12,60,000/- and admittedly complainant has paid Rs.3,21,000/- and got physical possession of the said flat. Thus major amount of Rs.9,39,000/- is still due. It is also admitted fact that one of the land owners in this passage of time already expired and thus power of attorney has already been revoked in the eye of Law. So, definitely it is a difficulty for the contesting O.P nos. 1 to 4 to execute and register the deed of conveyance ,but they did not pay any trouble to the complainant and hand over possession only accepting Rs.3,21,000/- out of total consideration money of Rs.12,60,000/-. This is undoubtedly a good gesture of the contesting O.P nos. 1 to 4. So, in this circumstances it cannot be said that the O.P nos. 1 to 4 are unfair or made any deficiency of service ,particularly when out of Rs.12,60,000/- only they accepted Rs.3,21,000/- but delivered possession of the flat to the complainant. Question of registration is undoubtedly mandatory but developer has no power to register the same until and unless land owners agreed to sell , particularly when power of attorney has already been revoked due to the demise of one of the land owners. / It is the unfortunate of the complainant and at the same time it is the unfortunate for the developer to show their good gesture by arranging execution and registration of the deed of conveyance . They have failed to perform it not for their fault but fault of the land owners who are claiming more amount taking the advantage of revocation of power of attorney ,that is why, land owners did not choose to contest the case and case is running in exparte.
In this circumstances, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.P nos. 1 to 4 and in exparte against O.P nos. 5 to 15,the land owners.
The complainant is hereby directed to deposit Rs.9, 39,000/- in the office of this Forum through Demand Draft in the name of O.P-1, developer , positively within 25 days from the date of this order.
The Land owners O.P nos. 5 to 15 are hereby directed to execute and register the deed of conveyance in favour of the complainant within 30 days from the date of this order, wherein O.P nos. 1 to 4 will stand as a confirming party in the Deed, failing which complainant is at liberty to get the deed of conveyance executed through the machinery of the Forum and in that event complainant is entitled to get compensation to the tune of Rs.55,000/- from the O.P nos. 5 to 15 in equal share ,since land owners failed to execute the Deed of conveyance , subject to deposit of Rs.9,39,000/- in the office of this Forum through Demand Draft in the name of O.P-1 by the complainant.
The cost of the suit is assessed at Rs.5000/- , out of which 50% will be paid by the O.P nos. 1 to 4 in equal share and rest of the amount will be paid by the O.P nos. 5 to 15 in equal share, within 30 days from the date of this order.
If the deed of conveyance is not executed by the land owners within the stipulated period then complainant is at liberty to file execution case to execute the order through this Bench.
Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.
Member Member President
Dictated and corrected by me
President
The judgment 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 against the O.P nos. 1 to 4 and in exparte against O.P nos. 5 to 15,the land owners.
The complainant is hereby directed to deposit Rs.9, 39,000/- in the office of this Forum through Demand Draft in the name of O.P-1, developer , positively within 25 days from the date of this order.
The Land owners O.P nos. 5 to 15 are hereby directed to execute and register the deed of conveyance in favour of the complainant within 30 days from the date of this order, wherein O.P nos. 1 to 4 will stand as a confirming party in the Deed, failing which complainant is at liberty to get the deed of conveyance executed through the machinery of the Forum and in that event complainant is entitled to get compensation to the tune of Rs.55,000/- from the O.P nos. 5 to 15 in equal share ,since land owners failed to execute the Deed of conveyance , subject to deposit of Rs.9,39,000/- in the office of this Forum through Demand Draft in the name of O.P-1 by the complainant.
The cost of the suit is assessed at Rs.5000/- , out of which 50% will be paid by the O.P nos. 1 to 4 in equal share and rest of the amount will be paid by the O.P nos. 5 to 15 in equal share, within 30 days from the date of this order.
If the deed of conveyance is not executed by the land owners within the stipulated period then complainant is at liberty to file execution case to execute the order through this Bench.
Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.
Member Member President
