West Bengal

South 24 Parganas

CC/171/2015

Sri Ramkrishna Vivekananda Das, S/O Late Naresh Chandra Das. - Complainant(s)

Versus

1. M/S. Rusha Nirman Udyog. a firm registered. - Opp.Party(s)

Sabyasachi Basu.

27 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _171_ OF ___2015_

 

DATE OF FILING : 6.4.2015                         DATE OF PASSING JUDGEMENT:  27.02.2017

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu   & Subrata Sarker

                                                                             

COMPLAINANT        :     Sri Ramkrishna Vivekananda Das, son of Naresh Chandra Das of 13/C, Parui Main Road, Kolkata – 61 .

 

-VERSUS  -

 

O.P/O.Ps                            :    1. M/s Rusha Nirman Udyog, a registered Firm and the Registrars are i) Sri Debabrata Chakraborty,s/o Rebati Kanta Chakraborty of 7/1,Becharam Chatterjee Road, Behala, Kolkata -34  and (ii)  Sri Joy Chakraborty, son of late Santosh Chandra Chakraborty of 78/7, Biren Roy Road (West), P.S. Behala, Kolkata – 61.

                                               2.     Sri Sanat Sengupta, s/o late Sukumar Sengupta of 4, Bhuban Mohan Roy Road, P.S. Thakurpukur, Kolkata – 8.  

                                          

_______________________________________________________________________

                                                            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 O.P-1 being a developer and O.P-2 being the owner  entered into a Development Agreement dated 7.8.2000 in respect of all that land and building lying and situated at premises no.12B, Bhuban Mohan Roy Road, Ward no.123, P.S. Thakurpukur, Kolkata – 8 . It has claimed that  O.P-2 also executed General Power of Attorney in favour of the partners of O.P-1. It has claimed that complainant being an intending purchaser of one residential flat being no.1 in the second floor of the building  under construction of A schedule property containing one bed room, one living room, dining room ,one kitchen  and one verandah as well as one toilet. Apart from that construction towards the common areas  approximately 5455 sq.ft being the same little more or less as shown in the plan attached. It has been submitted that KMC authority already sanctioned building plan no.157 (B-B) dated 19.8.1999. Thereafter complainant entered into an agreement for sale with the O.P-1 on 31.8.2000, wherein, O.P-2 being the owner of the property signed in the said agreement for sale as a confirming party. Accordingly complainant paid Rs.5000/- through account payee cheque in terms of the agreement . It was agreed that the possession of the said flat was handed over to the complainant by the O.P-2 on 4.12.2002 by issuing possession letter in favour of the complainant. But developer (O.P-1) failed and neglected to finish the building till date i.e. stair case, landing, paint and exterior portions , painting of wall remained unfinished.  It has claimed that complainant is an employee of LIC As such balance money was paid by the employer of the complainant towards HBL and only Rs.45000/- was due and payable by the complainant to the developer by the LIC on the date of registration in terms of the Loan Agreement. It has claimed that since the deed of conveyance was not executed and registered by the O.Ps, for which LIC withheld the said amount of Rs.45000/- which is due and payable to the developer by the complainant. It has claimed that complainant is always ready and willing to pay the dues of Rs.45000/- at any day when deed of conveyance will be registered. It has claimed that the complainant has visited the office of the O.P several times for registration matter but all attempts failed and lastly complainant sent legal notice. Inspite of that they did not take any steps  which is a deficiency of service and unfair trade practice . It should be mentioned here that O.P-1 sent a lawyer’s notice on 18.8.2014 where they demanded Rs.1,75,000/- which has been narrated in the second phase of the letter and also they will execute and register the deed of conveyance in favour of the complainant for getting Rs.1,75,000/-. It has claimed that the value of the flat is Rs.3,50,000/- and claimed Rs.1 lacs towards compensation, litigation cost of Rs.20,000/- etc.  It has claimed that Ld. Advocate sent a reply denying all the facts and requested to execute and register the deed of conveyance in favour of the complainant after taking the original due money of Rs.45000/-  but all in vein . Hence, this case.

 

O.P-1 filed written version and claimed that case s not maintainable  and all the allegations leveled against them. It has stated in para 8 of the written version that it would be evident from the money receipts that complainant paid Rs.5000/- on the date of execution of the agreement on 7.8.2000 and thereafter paid Rs. 1 lac on 13.12.2000 and Rs.2 lacs on 25.7.2001 but complainant did not disclose intentionally the payment of Rs.60,000/- made by him on 21.7.2000 or thereafter.  It has claimed that after making payment of Rs.3,65,000/-  and after obtaining loan from his employer LIC complainant requested the O.P-1 to pay Rs.60000/- from that account to meet his personal emergency and assured the O.P-1 to pay balance amount of Rs.45000/- at the time of registration of the deed of conveyance in his favour. O.P-1 on good faith refunded the amount of Rs.60,000/- by  cheque to the complainant against receipt on humanitarian ground . Thereafter O.P-1 requested the O.P-1 to pay balance amount of Rs.45000/- and get the deed of conveyance but complainant avoided the said request. It has been submitted by the O.P-1 that  possession was delivered to the complainant on 4.12.2002 in complete habitable condition and since then complainant has been in possession of the said flat with full satisfaction without raising any objection whatsoever  . So, allegations for completing the incomplete works of the building and pending of the exterior painting after lapse of 13 years is utterly false and hence denied.  It has claimed that complainant did not make payment in accordance with the agreement and final amount of Rs.45000/- was to be payable before giving physical possession of the flat but possession was delivered on 4.12.2002 without receiving Rs.45000/- by the O.P-1  only on assurance of the complainant to make  payment of the balance amount of Rs.45000/- within 7 days from the date of receiving possession, for which, O.P -1 is entitled to Rs.45000/- along with interest from 4.12.2002.  It has claimed that in the month of 2010 parties arrived at a decision that complainant will make payment of Rs.45000/- with interest and damage of Rs.1,75,000/-  and O.P-1 will execute and register the deed of conveyance. It has claimed that  O.P-1 is always ready and willing to execute and register the deed of conveyance after receiving Rs.45000/- and complainant is not entitled to any compensation and cost and case is liable to be dismissed.

The O.P-2 also filed written version and denied all the allegations leveled against him. It has claimed that  O.P-1 developer completed the construction of the building in accordance with the sanctioned building plan   and handed over owners’ allocation in complete habitable condition. The land owners being O.P-2 also admitted that possession was delivered to the complainant on 4.12.2002 and also denied that building was incomplete . It has claimed in para 16 that this answering O.P after receiving the owners’ allocation from the developer has no objection to execute and register the deed of conveyance in respect of the mentioned schedule B in favour of the complainant and submitted that this answering O.P being a land owner is ready and willing to execute and register the deed of conveyance and prays for dismissal of the case.

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

Although both the O.Ps filed written version but from the series of the order sheet i.e. on and from 22.3.2016 it appears that O.P-1 filed the acknowledgement of the Hon’ble State Commission for transfer of the case and matter is fixed on 28.3.2016. Thereafter complainant was present but one appears on behalf of the O.Ps. Again O.P-2 is present and submits that next date is 10.8.2016.  From the order of the Hon’ble State Commission we find that land owner O.P-2 wanted to transfer the case from this Bench which was registered as a T.A no. 37 of 2016 but Hon’ble State Commission rejected the same  since complainant and the O.P-1 raised objection regarding transfer of the case from this Bench and it settled principle of Law that if the complainant does not like to transfer the case no case will be withdrawn from this Forum.

Apart from that  we find that date of filing questionnaire of the O.P was fixed as a last chance but none appears on behalf of the O.P  on that date . Thereafter O.P was debarred from filing questionnaire but opportunity was given them to file evidence fixing 7.12.2016 but none appears and on that date last chance along with cost of Rs.500/- was imposed fixing 9.1.2017 and thereafter on 9.1.2017 complainant was present but O.Ps are absent without step. Accordingly O.Ps are debarred from filing evidence on a view that O.Ps are reluctant   to come to this bench for reasons best known to them and created grounds for appeal before the Hon’ble State Commission ,that is why, the conduct of the O.Ps has been categorically narrated in this order so that the Hon’ble State Commission can realize how this case is being dragged by the O.Ps at their sweet will, although it is the dictum of the Act that the Consumer Complaint should be settled within 90 days.

With that observation Ld. Advocate of the complainant files a petition that they will not file any questionnaire ,for which, in that circumstances fix 14.2.2017 for argument and BNA. On 14.2.2017 Ld. Advocate of the complainant was present and files BNA and argument was heard fixing 27.2.2017 for delivery of judgment.

This is the checkered background of the O.P after rejection of the transfer application by the Hon’ble State Commission. We are aware that it is the dictum of the Hon’ble State Commission that nobody should be allowed to find out the suitable bench (Bench hunting). Herein O.P-2 failed to hunt the bench and thereafter vanished both the O.Ps from this bench ,that is why, the judgment is being passed by this bench in a summary trial, wherein it has categorically mentioned in the series of order sheet that  opportunities were given to the O.Ps to file questionnaire but they failed to avail the same and  thereafter opportunities to file evidence by the O.P was also not availed by the O.Ps for the reasons best known to them. In this circumstances  the judgment is being passed by this Bench.

Now we turn our eyes to the complaint petition and its annexures along with the written version filed by the O.Ps and we find that the claim of Rs.1,75,000/- towards the damage is unheard to the procedure, particularly it is the claim of the O.P- 1 that complainant has submitted that Rs.45000/- is due.   At the same time it is also tobe considered whether the O.P-1 being a developer can show a single document at the relevant point of time that O.P-1 was ready and willing to execute and register the deed of conveyance and demanded Rs.45000/- which was due from the complainant.  But instead of that as and when complainant filed this complaint  , O.P-1 by filing written version expressed his readiness and willingness  to execute and register the deed of conveyance. Can it be considered by a competent bench having judicial background (Procedure). Of course, it was the ground for ready and willingness if the O.P-1 soon after delivery of possession on 4.12.2002 filed any documentary evidence i.e. Request Letter  to the complainant that they ready and willing to execute and register the deed of conveyance after receiving Rs.45000/- . But no scrap of paper is filed and O.P-1 fled away along with the O.P-2  when the date of questionnaire was fixed. Thus evidence supported by an affidavit filed by the complainant is an unchallenged testimony. Even then , this bench applying considerable judicial mind  has given opportunity to the O.P to file evidence. But O.Ps  did not avail the same. This is a glaring example of deficiency of service and unfair trade practice over the procedure.  This is a challenging attitude of the O.Ps ,not complying the order of this Bench when O.P-2 failed to hunt the suitable bench, fled away. So, this is a glaring example of deficiency of service. Can the O.Ps claim that they were not aware about the procedure, particularly when they have filed written version.  We have considered the written version minutely and from the same it is helpful for us to pass the effective judgment.

The submission made by the O.P-1 in the written version in para 7 is undoubtedly justified, particularly when the possession was delivered on 4.12.2002 and thereafter within two years no complaint case was filed by the complainant  claiming the incomplete works of the building namely painting of exterior wall and that too after lapse of 13 years.  Our considered view is that if there was any incomplete works how the complainant is in possession since 3.12.2002 till the date of filing the case i.e. 4.9.2005. So, this is a concocted claim of the complainant. Apart from that after lapse of 13 years the painting was already go-bye due to the age of painting. In this connection  the written version of the O.P-2 is very much helpful to this bench wherein O.P-2 being a land owners has mentioned in para 9 that O.P-1 developer  completed the construction of building in accordance with sanctioned building plan and handed over owner’s allocation in completed habitable condition. In para 13 O.P-2 has stated that the possession of the flat complete in all respect was delivered  to the complainant on 4.12.2002 and the land owners being O.P-2 has denied that the building or any part thereof including the exterior painting was completed at the time of hand over possession in the year 2002.  This is undoubtedly acceptable portion of the written version although both the O.Ps fled away. The land owners also stated that he has no objection to execute and register the deed of conveyance in respect of the complainant . Thus considering all pros and cons we find that  until and unless registered deed of conveyance is being executed and registered it is a continuous cause of action  in view of the judgment of the superior court, Commission etc. and admittedly registration work has not yet been completed and admittedly Rs.45000/- is still due.   It is true that O.P-1 has claimed interest from the date of possession but the O.P-1 is not entitled to get the interest because he has failed to prove by any documentary evidence that soon after handing over possession in the 2002 they offered registration of course after receipt of Rs.45000/-.   In this circumstances admitted balance amount is considered and non-execution of deed of conveyance is undoubtedly deficiency of service.

 

Hence,

                                                            Ordered

That the application under section 12 of the C.P Act 1986 is allowed on contest against the O.Ps.

The complainant is directed to deposit Rs.45000/- within 15 days from the date of this order before the office of this Forum which will be disbursed to the O.P-1, if O.P-1 stands as a confirming party in the deed of conveyance.

Of course, deed of conveyance will be executed and registered by the land owner O.P-2 and that will be done by both the O.Ps within two months from the date of this order, failing which O.P-1 has to pay Rs.45000/- towards the compensation  and litigation cost Rs.10,000/-. 

If the land owners failed to execute and register the deed of conveyance in that event land owners being O.P-2  is to pay compensation to the tune of Rs.10,000/-  and litigation cost Rs. 10,000/-. But if the land owner ,O.P-2, executed the deed of conveyance  then question of cost and compensation on the part of the land owner does not arise.

Similarly if the deed of conveyance is executed within two months from the date of the order by the O.P-1, then O.P-1 will be exempted from paying the cost and compensation.

It may be mentioned here that if the complainant failed to arrange deed of conveyance at his own cost due to paucity of fund after deposit of Rs.45000/- within 15 days as stated above, then none of the O.Ps will be liable to pay any cost and compensation but in that event they have to submit their Pan number before this Bench so that when the fund will be available by the complainant, machinery of the Forum can be appointed to execute and register the deed of conveyance.

This order is passed considering all pros and cons and it should be mentioned here that Pan number is required nowadays as per order of the Finance Department at the time of registration.

 

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 for strict compliance.  

 

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.Ps.

The complainant is directed to deposit Rs.45000/- within 15 days from the date of this order before the office of this Forum which will be disbursed to the O.P-1, if O.P-1 stands as a confirming party in the deed of conveyance.

Of course, deed of conveyance will be executed and registered by the land owner O.P-2 and that will be done by both the O.Ps within two months from the date of this order, failing which O.P-1 has to pay Rs.45000/- towards the compensation  and litigation cost Rs.10,000/-. 

If the land owners failed to execute and register the deed of conveyance in that event land owners being O.P-2  is to pay compensation to the tune of Rs.10,000/-  and litigation cost Rs. 10,000/-. But if the land owner ,O.P-2, executed the deed of conveyance  then question of cost and compensation on the part of the land owner does not arise.

Similarly if the deed of conveyance is executed within two months from the date of the order by the O.P-1, then O.P-1 will be exempted from paying the cost and compensation.

It may be mentioned here that if the complainant failed to arrange deed of conveyance at his own cost due to paucity of fund after deposit of Rs.45000/- within 15 days as stated above, then none of the O.Ps will be liable to pay any cost and compensation but in that event they have to submit their Pan number before this Bench so that when the fund will be available by the complainant, machinery of the Forum can be appointed to execute and register the deed of conveyance.

This order is passed considering all pros and cons and it should be mentioned here that Pan number is required nowadays as per order of the Finance Department at the time of registration.

 

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 for strict compliance.  

 

Member                                                      Member                                                                President