West Bengal

South 24 Parganas

CC/382/2014

SRI JAGABANDHY DAS, S/O. Late Sambhu Nath Das. - Complainant(s)

Versus

1. M/S. SHALINI CONSTRUCTION. Represented by its sole prop. Sri Pranab Mitra. s/o. Late Manindra Na - Opp.Party(s)

31 Jul 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _382_ OF ___2014__

 

DATE OF FILING : 19.8.2014                  DATE OF PASSING JUDGEMENT: _31.7.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   1. Sri Jagabandhu Das, s/o late Sambhu Nath Das

2.   Smt. Bipasa Das Roy,w/o Sri Jagabandhu Das

Both of 24/1/C, Sahid Surya Sen Road, P.O and P.S Berhampore, District. Murshidabad, Pin-742101.

 

-VERSUS  -

 

O.P/O.Ps                            :   1.     M/s Shalini Construction, represented by its sole proprietor Sri Pranab Mitra,s/o late Manindra Nath Mitra of L-38, Kamdahari Bosepara, P.O Garia, P.S. Bansdroni, Kolkata – 84.

                                              2.    Sri Prabir Mukherjee

                                              3.     Sri Subir Mukherjee, both sons of late Puspa Ranjan Mukherjee

                                             All of V-13, Vivekananda Sarani P.O Garia, P.S Bansdroni, Kol-84.

4.Smt. Rina Bhattacharya,d/o late Puspa Ranjan Mukherjee ,w/o Sri Ratan Bhattacharya of ‘Lalkuthi’, (Bhattacharjee Para), P.O & P.S Barrackpore, Dist. N-24Parganas, Pin-700120.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant case has been filed by the complainant under section  12 of the C.P Act, 1986 with allegation of deficiency in service against the O.Ps.

In a nutshell the case of the complainant is that O.P-1,developer entered into a Development Agreement for construction of a multistoried building consisting of some flats. Thereafter, the complainants with intention to purchase of a residential flat entered into an agreement for sale with the O.P-1 (developer) on 16.5.2007 . Subsequently on March 19, 2010 they in suppression of the earlier agreement dated 16.05.2007 entered into a fresh agreement for sale with the O.P-1 in respect of the same flat and that agreement was duly registered. The consideration of the subject flat was settled at Rs.6,05,000/- out of which the complainants have paid Rs.4,95,000/- to the O.P-1/developer. The Ld. Advocate for the complainant has submitted that although from time to time they have intimated the O.P developer their readiness and willingness to complete the deal by paying the balance amount of the consideration money for the purpose of execution and registration of the Deed of Conveyance of the subject flat, it is unfortunate that the O.P developer for one reason or other has always postponed delivery of its possession in their favour, verbally and also in black and white (letter dt. 18.9.2013 and 19.9.2013 and also 10.4.2014).

 Therefore, the complainants have no other alternative but to file the instant case before this Forum for redressal of their dispute with prayer as mentioned in the complaint petition.

The O.Ps did not appear and contest the case, though notices were properly served and opportunities were given to the O.Ps to file written version and contest the case. Hence the case proceeded exparte against them.

On 23.06.2015 O.P filed a petition for vacating the exparte order . But the Forum has no power to recall  its own order. So, the petition is rejected and case is proceedes  exparte against the O.P.

After scrutinizing four corners of the case following points are in limelight :

1.             Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

                                                            Decision with reasons

After scrutinizing all the documents brought before the notice of this Forum , it appears that O.P nos. 2,3 ,4 and 5 jointly entered into a Development Agreement on 9.5.2003 with the O.P-1 developer for construction of a multi-storied building at suit premises. Later the landowners executed a general power of attorney in respect of the suit premises in favour of the O.P-1. Thereafter on 16.5.2007 the complainants entered into an agreement for sale with the O.p-1 with intention to purchase a residential flat on the 1^st floor of the multi storied building at the suit premises and paid Rs.4,95,000/- to the O.P-1 towards the consideration of the subject flat amounting to Rs.6,05,000/- and the complainants are ready and willing to pay the balance amount. They have intimated time and again about their readiness and willingness to complete the deal by paying the balance amount and requested the O.p-1 to execute and register the deed of conveyance of the subject flat. But the O.P-1 developer did not pay any heed to their requests which were made verbally and also in writing.

            From the record it also appears from the petition filed by the O.P nos. 3 and 4 that the aforesaid power of attorney was cancelled by all the land owners on 14.4.2006.

            It is crystal clear that the agreement for sale dated 16.5.2007 was signed by the developer ,O.P-1, after the cancellation of power of Attorney by all the land owners on 14.4.2006 which was duly communicated to the O.P-1 through a letter dated 18.4.2006.

We have no hesitation to hold that the aforesaid agreement for sale dated 16.5.2007 is void ab initio and the developer O.P-1 fraudulently entered into that agreement for sale with the complainants and received Rs.4,95,000/- as earnest money tow3ards the consideration of the suit flat.

            Here it is needed to be mentioned that O.P nos. 3 and 4 filed the above mentioned petition on 05.12.2014  but the complainants have not raised any specific denial with respect to the contention of the O.P nos. 3 and 4 regarding cancellation of power of attorney on 14.4.2006 and O.P-1, the developer, did not appear before this Forum even after valid service of summon and thus virtually has admitted the contentions of all the submissions of the above mentioned petition dated 05.12.2014 and all the submission of the complainants.

            Therefore, in the light of the above discussion and considering four corners of the case it is strongly opined by this Forum that the agreement for sale entered by the O.P while keeping the complainants completely in the dark is void ab initio in the eye of Law and thus the O.P-1/developer has not only committed deficiency in service but has also adopted unfair trade practice under section 2(1)® of the COPRA.

It is also opined by this Forum that if direction upon the O.Ps is given to execute and register the deed of conveyance in favour of the complainants of the suit flat, that order may be non-executable (i.e. no nest order) and may raise disputes between the parties to this case resulting further litigation.

            We are of the opinion that O.P-1/developer should be liable to refund the earnest money amounting to Rs.4,95,000/- to the complainant and to aptly compensate the complainants for their tremendous mental agony, harassment and financial loss due to deficiency in service and unfair trade practice of the O.P-1/developer.

            We are also of the opinion that an exemplary cost should be imposed upon the O.P-1 for the gross deficiency in serviced and shameless unfair trade practice of O.P-1 and for that O.P-1is liable to pay punitive damage.

            It is also opined by this Forum that in  the instant case O.P-3 and 4 being land owners, can not be found liable for deficiency in service towards the complainant/consumers and no effective order is passed against O.P nos. 3 and 4.

            Thus all the points are discussed and all are in favour of the complainants.

            Therefore, the case of the complainants succeeds.

            Hence,

                                                            Ordered

That the case of the complainant is allowed exparte with cost against O.p-1 and dismissed without cost against O.P nos. 3 and 4.

The O.p-1 is directed to refund Rs.4,95,000/- ( Four lacs Ninety Five Thousands), to pay Rs.4,00,000/- (Four lacs) towards compensation, and also to pay Rs.1 lac ( One lac) as punitive damage out of which Rs.50,000/- (Fifty Thousand) to be paid to the complainant and the rest Rs.50,000/-(fifty thousand) to be deposited to the State Legal Aid Fund .

The O.P-1 is also directed to pay Rs.3000/- towards litigation cost.

All the orders should be complied with within 30 days from the date of this order, failing which O.P-1 shall pay Rs.100/- per diem to the complainant after completion of the stipulated period till full and final compliance. 

Let a plain copy of this order be served upon the parties free of cost.

 

 

Member                                                           Member                                                           President                                

Dictated and corrected by me

 

 

                        Member

 

 

 

 

   

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

                                    Ordered

That the case of the complainant is allowed exparte with cost against O.p-1 and dismissed without cost against O.P nos. 3 and 4.

The O.p-1 is directed to refund Rs.4,95,000/- ( Four lacs Ninety Five Thousands), to pay Rs.4,00,000/- (Four lacs) towards compensation, and also to pay Rs.1 lac ( One lac) as punitive damage out of which Rs.50,000/- (Fifty Thousand) to be paid to the complainant and the rest Rs.50,000/-(fifty thousand) to be deposited to the State Legal Aid Fund .

The O.P-1 is also directed to pay Rs.3000/- towards litigation cost.

All the orders should be complied with within 30 days from the date of this order, failing which O.P-1 shall pay Rs.100/- per diem to the complainant after completion of the stipulated period till full and final compliance. 

Let a plain copy of this order be served upon the parties free of cost.

 

 

Member                                                           Member                                                           President