West Bengal

South 24 Parganas

CC/235/2015

1. Sri Kamal Pal , S/O Late Bhola Nath Pal. - Complainant(s)

Versus

1. M/S. Pinki Construction. - Opp.Party(s)

Arindam Sen.

28 Nov 2016

ORDER

       DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _235_ OF ___2015_

 

DATE OF FILING : 18.5.2015                       DATE OF PASSING JUDGEMENT:  28/11/2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :     1. Sri Kamal Pal, s/o late Bhola Nath Pal

                                           2. Smt. Minati Pal, w/o Sri Kamal Pal of 1/48, Rajendra Prasad Colony, P.S Jadavpur, Kolkata – 33.

 

-VERSUS  -

 

O.P/O.Ps                            :1. M/s Pinki Construction at 1/18, Prince Golam Mohammad Shah Road, P.S. Jadavpur, Kolkata – 95, represented by its Proprietress Smt. Pinki Das,w/o Sri Susanta Das of 5/41, R.P Colony, P.S. Jadavpur, Kolkaa – 33.

                                           2a.     Shibu Dey,w/o Gobindo Dey

                                           2b.     Soma Dey, d/o late Gobinda Dey , all of 1/86, Rajendra Prosad Colony, P.S. Jadavpur, Kolkata – 33.

                                          

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that complainant made an agreement for sale on 12^th July, 2009 which was executed by the O.P-1 and predecessor in interest of O.P2a and 2b for purchasing a flat in favour of the complainant. Accordingly total consideration money was fixed at Rs.4,50,000/- . Complainant has paid Rs.4,15,000/- in different dates and after construction of the flat complainant got possession of the said flat on 17^th December, 2011 and is also enjoying the said flat along with other flat owners. But it has claimed that some portions of the flat are still incomplete to some extent. Complainant also requested the O.P-1 for completion of the construction on receiving balance money of Rs.35,000/- and to execute and register the deed of conveyance  in favour of the complainant but the O.Ps have denied the same. To that effect a meeting was held on  9.6.2013,wherein, O.Ps decided to complete the construction in respect of the boundary wall and drainage system. But the same was not completed and deed was not executed . It has been mentioned that when the complainants claimed for legitimate claims, both the O.P nos.2a and 2b started to cause various illegal activities and in this process they tried to dispossess the complainants from above-mentioned flat. Hence, the complaint with a prayer to execute and register the deed of conveyance in respect of the flat and to pay compensation to the tune of Rs.3 lacs for harassment and mental agony, litigation cost of Rs.50,000/-.

The O.P nos.2a and 2b are not contesting the case inspite of sending summon.

The O.P-1 developer is contesting the case by filing written version and has denied all the allegations leveled against him. The contention of the O.P-1 is that without fresh power of attorney the deed of conveyance cannot be executed by him. So, direction should be given to the O.P nos. 2a and 2b, who are the legal heirs of the original owner of the property,  for executing fresh Power of Attorney . It has strongly claimed that this answering O.P never made any negligence to execute and register the deed of conveyance. It has claimed that there are some technical lacuna ,for which, this answering O.P is unable to execute the same.  But when the same will be over, then answering O.P will execute and register the deed of conveyance. It has also been stated by the answering O.P in para 17 at page 3 that a direction be given to the O.P to complete the formalities and to allow answering O.P to register the deed of conveyance without fresh power of attorney ,since earlier power of attorney has been cancelled. Accordingly answering O.P prays for exonerating him from the charges leveled against him.

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

                                                                        Decision with reasons

Admittedly Rs.4,15,000/- has already been paid  and complainant is in possession of the flat in question. But due to non-cooperation of the land owners registered deed is not being executed. It should be borne in mind by the legal heirs of Gobinda Dey that they have stepped into the shoes of Gobinda Dey. So, they cannot deny registration of the flat of the complainant, when their predecessor already executed Development Agreement . It is unfortunate that after the demise of original owner Gobinda Dey, Power of Attorney already elapsed as per claim of the O.P-1 but O.P nos.2a and 2b who are the legal heirs of Gobinda Dey out to have filed fresh power of attorney which they are duty bound , but inevitable did not happen.

It is true that there is no paper before this bench that O.P-1 ,developer, takes any positive step for obtaining power of attorney. Moreover, regarding incomplete works contesting O.P never state anything specifically or denied the same in the written version. So, incomplete works which have been claimed by the complainant is proved and for that reason inspection was not required  and that is why complainant did not pray for appointment of Advocate Commissioner or Engineer Commissioner in respect of the incomplete works i.e boundary wall, drainage system which have been mentioned in para 8 of last line.  Thus drainage system and boundary wall both are required for daily livelihood and safety of the occupiers. The complainants have claimed in paragraph 8 that he has requested for completing the construction of the incomplete works after receiving the balance consideration of Rs.35000/- and like that other occupiers are also facing such difficulties. So, it was the duty of the contesting O.P-1 to arrange for drainage system and construction of boundary wall , which is definitely a deficiency in service on the part of the O.P-1. But regarding the deed of conveyance O.P-1 has no role since he will stand only as a confirming party and it is the duty of the legal heirs of the land owners to cooperate in the matter ,for which, they are reluctant to contest the case which is running against them in exparte . But they have also failed to discharge their duty although property is inherited to them after demise of the father and/or husband  , as the case may be.

With that observation, it is

                                                                        Ordered

That the Application under section 12 of the C.P Act is allowed on contest against the O.P-1and  in exparte against the O.P nos.2a and 2b .

The O.P nos.2a and 2b are hereby directed to execute and register the deed of conveyance  of the flat of the complainant positively within 45 days from the date of this order and O.P-1 shall stand as a confirming party in the said deed.

The O.P-1 is hereby directed to complete the boundary wall and drainage system which are required not only for the purpose of the complainant but all the occupiers and soon after completion of the same , complainant has to pay the remaining amount of Rs.35000/- to the O.P-1 not before that and this direction has to be completed within 45 days from the date of this order ,failing which O.P-1 has to bear compensation to the tune of Rs.1 lac and O.P nos.2a and 2b have to bear Rs.25000/- jointly and/or severally . But if the Deed is registered within the stipulated period as stated above along with construction of boundary wall and drainage system, then compensation amounts are not at all required ,of course, the same should be within the satisfaction of the complainant.

All the O.Ps are hereby directed to pay cost of Rs.24000/- jointly and/or severally within the stipulated period as stated above, failing which, complainant is at liberty to execute the order through this Forum in a separate proceedings.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

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 is allowed on contest against the O.P-1and  in exparte against the O.P nos.2a and 2b .

The O.P nos.2a and 2b are hereby directed to execute and register the deed of conveyance  of the flat of the complainant positively within 45 days from the date of this order and O.P-1 shall stand as a confirming party in the said deed.

The O.P-1 is hereby directed to complete the boundary wall and drainage system which are required not only for the purpose of the complainant but all the occupiers and soon after completion of the same , complainant has to pay the remaining amount of Rs.35000/- to the O.P-1 not before that and this direction has to be completed within 45 days from the date of this order ,failing which O.P-1 has to bear compensation to the tune of Rs.1 lac and O.P nos.2a and 2b have to bear Rs.25000/- jointly and/or severally . But if the Deed is registered within the stipulated period as stated above along with construction of boundary wall and drainage system, then compensation amounts are not at all required ,of course, the same should be within the satisfaction of the complainant.

All the O.Ps are hereby directed to pay cost of Rs.24000/- jointly and/or severally within the stipulated period as stated above, failing which, complainant is at liberty to execute the order through this Forum in a separate proceedings.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President