1. M/S. N.G. CONSTRUCTION, A proprietor ship Firm. V/S 1.SHRI SUJAY SAFUI, S/O Shri Subhankar Safui. - Consumer Court Case

West Bengal

South 24 Parganas

CC/387/2014

1.SHRI SUJAY SAFUI, S/O Shri Subhankar Safui. - Complainant(s)

Versus

1. M/S. N.G. CONSTRUCTION, A proprietor ship Firm. - Opp.Party(s)

24 Aug 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

C.C. CASE NO. _387_ OF ___2014__

DATE OF FILING : 22.8.2014 DATE OF PASSING JUDGEMENT: 26/8/2016

Present : President : Udayan Mukhopadhyay

Member(s) : Subrata Sarker

COMPLAINANT : 1. Sri Sujay Safui

Shri Subhajit Safui, both sons of Shri Subhankar Safui of 146, Garfa Main Road, Safui Para, P.S. Garfa, Kolkata – 78.

-VERSUS -

O.P/O.Ps : 1. M/s N.G Construction of 69, Safuipara Baidyapara, P.S. Garfa, Kolkata -78 ,represented by Sole Proprietor Shri Sushanta Ghosh ,s/o late Sunil Chandra Ghosh of 69, Safuipara Baidyapara, P.S. Garfa, Kolkata -78

2. Shri Dwijen Biswas

3. Shri Samaren Biswas, sons of Late Netai Chandra Biswas

4. Shri Naren Chandra Biswas,s/o late Nabadwip Chandra Biswas , all of 2/175, Neli Nagar Colony, P.S. Kasba and no.2 to 4 are represented by Sushanta Ghosh,s/o late Sunil Chandra Ghosh of 69, Safuipara Baidyapara, P.S. Garfa, Kolkata -78

Proforma O.P : 5. Sri Subrata Dey,s/o Shri Usha Ranjan Dey of 6A, Thakur Ramkrishna Pal Lane, P.S Garfa, P.O Santoshpur, Kolkata - 75

_______________________________________________________________________

J U D G E M E N T

Sri Udayan Mukhopadhyay, President

The short of the complainant is that complainants along with proforma O.P Subrata Dey desired to purchase a flat from the O.P-1 , Developer Company and its Partners O.P nos. 2 to 4 which has been described in Schedule A including the car parking space being flat no.T-1(A Type) on the third floor eastern side and one car parking space no.G-2 on the ground floor of the building ,for which an agreement for sale was entered into on 7.9.2013 . It was stipulated in the said Agreement that total amount of consideration is Rs.16 lacs and possession will be delivered within 10^th months from the date of agreement dated 7.9.2013. Complainant already paid Rs.6 lacs in cash and Rs.10 lacs by account payee cheque dated 7.9.2013 . It has stated that Subrata Dey , proforma O.P already declined to remain any long as one of the intending co-purchasers with the complainants on the ground that there is unambiguous terms depicted in the said agreement for sale and also stated that he has not contributed any amount towards the consideration money which has been annexed herein as annexure 3. It has stated that this complainant also intimated the said withdrawal of O.P-5 to the O.Ps. Accordingly O.P nos. 1 to 4 directly obliged to render services to the complainant but after expiry of the said stipulated period inspite of repeated requests Sushanta Ghosh who is the authorized representative of O.P nos. 1 to 4 deferred the matter from one day to another day on flimsy pretext and avoided to render services as contemplated under section 2(1)(o) of the C.P Act. Accordingly complainant sent a letter through Ld. Advocate Piyush Mallick which is enclosed in the petition of complaint. Thus complainants suffered lots of harassment and on the other hand O.P nos. 1 to 4 failed to render services. Thus the quantum of damage is assessed at Rs. 1 lac tentatively. Apart from that complainant is entitled to get a sum of Rs.20,000/- towards cost . Hence, this case with further prayer for execution and registration of the deed of conveyance in favour of the complainants in terms of the agreement dated 7.9.2013 as well as delivery of peaceful possession of the flat as well as delivery of documents showing up-to-date payment of tax, land revenue etc. Complainants also pray for alternative prayer to refund the money of Rs.16 lacs from the O.P nos. 1 to 4 which is the entire consideration money apart from compensation of Rs.1 lacs and cost of Rs.20,000/-.

The case is running exparte against O.P nos.1,3 and 5 in exparte.

The O.P nos. 2 and 4 filed written version. But they are reluctant to take further steps i.e. questionnaire, evidence and reply etc inspite of opportunities given to them, that is why the case is taken up for hearing argument.

The positive case of the O.P nos. 2 and 4 is that owners of the property entrusted the said property to O.P-1 for development work after demolishing the old structure. In terms of the development agreement developer is liable to hand over 43% of the total floor area and also to pay Rs.3 lacs but the developer did not hand over the said area as per development agreement and also and also did not comply the other provisions of the said agreement and due to such default, the owners revoked the power of attorney and cancelled the said development agreement and deed of revocation was executed on 30.4.2014 and the same is also communicated to them, for which they prays for dismissal of the case as developer has no fault.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

Decision with reasons

It appears that one deed of revocation of power of attorney was filed by the developer O.P nos. 2 to 4 which was executed and registered on 30.4.2014. It is the contention of the land owners that for not performing the acts properly, reasonably in time it has become necessary and/or expedient to revoke the general power of attorney registered before the DSR III at Alipore , South 24-Parganas and the said cancellation was intimated to Sushanta Ghosh , the Proprietor of NG Construction on 5.4.2014 through the Ld. Advocate of the land owners.

Thus prima facie it is an admitted position that land owners 2 and 4 also informed this bench that the developer O.P-1 is very much reluctant to raise the construction ,that is why, the development agreement was executed. It is coming out from the amended complaint that the developer failed to keep his word and after accepting Rs.16 lacs did not turn up for which case is running in exparte.

Thus we find that there will be no fruitful result directing the developer and the land owners to execute and register the deed of conveyance when the building has not yet been constructed. So, the alternative prayer of the complainant i.e. to refund the money is just and proper at this stage.

Accordingly, it is deficiency in service and unfair trade practice on the part of the O.P-1 , whose sole Proprietor is Sushanta Ghosh. This developer not only acted unfairness towards the intending purchaser , the complainant but also the land owners ,that is why, the land owners compelled to revoke the power and cancelled the development agreement .

The Ld. Advocate of the complainant has relied a decision reported in II 2016 CPJ page 138 passed by the Hon’ble National Commission, wherein the Hon’ble National Commission has observed “Equity demands that such unscrupulous litigants whose only aim and object is to deprive the consumer of their fruits of the decree must be dealt with heavy hands ,for which punitive cost of Rs.1 lac is imposed”.

Here , in the instant case we find that Ld. Advocate of the complainant has obtained the valuation of the said flat which is Rs.24,97,500/- of the super built up area of 925 sq.ft and the super built up area of garage 120 sq.ft is Rs.3 lacs and thus total amount comes to Rs.27,97,500/- according to the assessment slip issued by the Director of Registration and Stamp Revenue but complainant filed one additional Brief Notes of Argument and has claimed that the total value as per agreement is Rs.16 lacs with car parking space and according to the recent query present value of the flat comes to Rs.27,97,500/- . So, the present value per sq.ft is Rs.2700/-. But the question is in view of Section 11 of the C.P Act the pecuniary jurisdiction of this bench not exceeds Rs.20 lacs. Thus the valuation as stated along with the supported document is beyond the pecuniary jurisdiction of this bench.

Be that as it may, according to the prayer of the complaint case we find that complainant has paid Rs.16 lacs which is required to be refunded along with 15% interest from the date of payment till its realization. Apart from that, complainant should get compensation to the tune of Rs. 1 lac and litigation cost Rs.20,000/-. The conduct of the O.P-1 clearly suggests that it is a fit case to pass further order towards punitive cost which is assessed at Rs. 1 lac which will be paid to the complainant by the O.P-1 within one month from the date of this order, failing per day penalty will be imposed @100/- per day from the date of default till its realization upon the O.P-1, which will be deposited in the Consumer Legal Aid Account.

Hence,

Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against O.P 1,3 and 5 and on contest against O.P nos. 2 and 4.

The O.P-1 is directed to refund Rs.16 lacs along with 15% interest from 7.9.2013 to till its realization within 30 days from the date of this order.

The O.P-1 is further directed to pay compensation to the tune of Rs.1 lac (one ) and litigation cost of Rs.20,000/- to the complainant within 30 days from the date of this order.

The O.P-1 is further directed to pay Rs.1 lac(one ) towards punitive damage which will be paid to the complainant within 30 days from the date of this order.

If the O.P-1 failed to comply the above orders within the stipulated period, then per day penalty will be imposed @100/- per day from the date of default till its realization which will be deposited in the Consumer Legal Aid Account.

If the order is not complied with within the stipulated period the complainant is at liberty to execute the order through this Forum.

Case is dismissed against O.P nos.2,3,4and 5 in the changed circumstances.

Let a plain copy of this order be served upon the O.P through speed post and 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 ,