DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

              SOUTH 24 – PARGANAS, AMANTRAN BAZAR, BARUIPUR,

                           KOLKATA-700 144

            C.C. CASE  NO. 263 OF 2015

DATE OF FILING: 09.06.2015               DATE OF JUDGEMENT: 10.04.2019

Present                 :   President       :   Ananta Kumar Kapri

                                 Member        :    Jhunu Prasad

COMPLAINANT        : 1. Sri Daya Ram Rajak

                                     2. Sri Babu Ram Rajak

                                         Both sons of  late Chikhuri Rajak, and both residing at                       

                                           315/A/1, Upendra Banerjee Road, Police Station - 

                                           Parnashree, Kolkata - 700 060     

•  VERSUS  -

O.P/O.Ps                    : 1. M/S M.M.K. Enterprise,

                                        Represented by it’s proprietor, Shri Mahitosh Dutta, 

                                           residing at 550/29, P.K. Guha Road, P.S.- Dum Dum,

                                           Kolkata – 700 028

                                    2. ROYCON,

                                        Represented by it’s proprietor, Shri Amitava Roy, s/o

                                           Late Basanta Kumar Roy, residing at Govt. Quarter, 

                                           Block – 20, Flat No. 123, P.S. – Parnashree, Kolkata –

                                           700 060

                                    3. Shri Jai Ram Singh,

                                        s/o Late Nagina Singh, residing at 315A/1, Upen

                                           Banerjee Road, P.S. – Parnashree, Kolkata – 700 060

________________________________________________________________

J  U  D  G  M  E  N  T

Sri Ananta Kumar Kapri, President

            Facts leading to the filing of the instant case may be epitomized as follows.

          O.P. no. 3 is the owner and O.P. Nos. 1 and 2 are the developers. The complainants were tenants in erstwhile case building. One sale agreement dated 09.01.2014 was effected between the complainants and the O.P.s and thereby the O.P.s agreed to deliver a flat to the complainant on the ground floor equal to area of the premises they occupied in the old building, within 15 months from date of commencement of construction work. The consideration price of the flat was fixed as Rs. 1,000/- only. Construction work of the building was completed; but possession of the flat was not delivered to the complainants by O.P. Nos. 1 and 2. Registration of the flat was also affected in favour of the complainant. So the complainants now pray for registration of the flat and also for an order of compensation due to price hike and mental agony.

          Hence, the case.

          O.P. No. 3 has not filed WA to contest herein and therefore the case is heard ex-parte against him. O.P. Nos. 1 and 2 have filed the written statement wherein it is contended inter alia that the case is maintainable in law, that there is not cause of action to file the instant case and that the complainants are not entitled to relief or reliefs as prayed for. The positive case as made out in the written statement is that the complainants were tenants in the old building of O.P. No. 3 and therefore they can be tenants in the new building. They can never be owners of the flat which was agreed to be given to them. But, the complainant wanted to be the owners of their flat and therefore they were asked to pay at least the cost of construction of the flat to be allotted to them. They agreed; but, the said provision was fraudulently omitted in the sale agreement dated 09.01.2014 by the complainant in collusion with the drafting lawyer of the complainant. The total sale price of a flat having 800 square feet of super built up area can never be Rs. 1,000/- as described in the sale agreement and such a price is absurd and impossible. The sale agreement has been procured by the practicing fraud upon the O.P.s by the complainants in collusion with their drafting lawyer and to set aside that fraudulently sale agreement, a title suit bearing T.S No. 315/15 has been filed before Ld. Civil Judge, Junior Division, Fifth Court, Alipur against the complainant for declaration and injunction. So, according to the contesting O.P.s, the instant case should be dismissed in Limini.

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

                                     POINT FOR DETERMINATION

1. Is there any deficiency in service on the part of O.P.s as alleged by the complainants?
2. Are the complainants entitled to get relief or reliefs as prayed for?

EVIDENCE OF THE PARTIES

          Evidence on affidavit is led by the complainants. W/V is treated as evidence of O.P. Nos. 1 and 2, vide their petition dated 19.09.2018.

                                      DECISIONS WITH REASONS

Point no. 1 & 2

During pendency of the proceedings, it is found that the O.Ps have executed and registered a sale deed in respect of the flat of the complainants in favour of the complainants, vide deed of conveyance being no. I08018/17 dated 28.08.2017 of District Sub-Registrar-II, Alipur, South 24 Parganas. One of the prayers of the complainant was to pass an order directing the O.P. to execute and register a deed of conveyance in favour of the complainants. This prayer of the complainants is now found to have been fully satisfied. There is another prayer submitted by the complainants for compensation due to price hike in the market and for causing mental agony and harassment to them. In this regard, we feel inclined to say that the complainants have purchased the flat for nominal consideration price i.e. for Rs. 1,000/- only. So, if they have to pay the stamp duty and registration fee on a increased rate, we think that no substantial damage has been virtually caused to them. Now to see whether the complainants have unnecessarily been subjected to any harassment and mental agony by the O.Ps. The developer O.Ps agreed to deliver the possession of the flat to the complainant within 15 months from the date of commencement of the constructional work. But, they did not honor terms of the agreement; they were dragging the matter, nonetheless legal notices were sent to them by the complainant time and again. Complainants sent a notice on 25.06.2014 to the O.Ps through their lawyer. They again sent such a notice dated 04.05.2015 through their Ld. Lawyer. Still, the O.P. developers did not handover the possession of the flat to the complainants, nor did they execute and register the deed of conveyance in favour of the complainants. The complainants have certainly undergone tremendous harassment and mental agony for which they are entitled to damage from the O.P. developers. That apart, no document has been filed by the O.Ps to do that the suit is filed to set aside the sale agreement dated 09.01.2014.

          In the result, the case succeeds in part.

          Hence,

ORDERED

          That the complainant case be and same is decreed on contest against the O.P. Nos. 1& 2 with a cost of Rs. 10,000/- and decreed ex-parte against O.P. No. 3.

          The O.Ps particularly O.P. Nos. 1 & 2 are directed to pay a sum of Rs. 20,000/- as compensation to the complainants within a month of this order failing which the compensation amount and the cost amount will bear interest at the rate of 8% p.a. till full realization thereof.

          Register-in-charge is to supply a copy of judgment free of cost to the parties concerned at once.

I / We agree                                              Member                            President

          Dictated and corrected by me

 President