DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __163_ _ OF ___2016
DATE OF FILING :_28.12.2016 DATE OF PASSING JUDGEMENT: 27.11.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Smt. Patralekha Majumder, wife of Mr. Siddhartha Majumder of 215, Sreerampur Road, (East), P.S Sonarpur, Kolkata – 84, Dist. South 24-Parganas.
O.P/O.Ps : 1. M/s Uma Associates, 1/16A, Prince Golam Md. Shah Road, P.S Tollygunge, Kolkata – 95.
2. Sri Subrata Gupta, son of Sri Susanta Gupta , C/O Mr. Uma Associates at 11, Baikuntha Saha Road, P.S Survey Park, Kol-95
` 3. Smt. Manju Naskar, wife of late Balai Chandra Naskar
4. Sri Somnath Naskar, son of late Balai Chandra Naskar , both of South Ghoshpara, P.O & P.S Sonarpur, Dist. South 24-Parganas.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
A sheer apathy and negligence on the part of the O.P/developer has galvanized the complainant to file the instant case, alleging deficiency in service on the part of the O.P.
The facts leading to the filing of the instant case may be epitomized as follows.
O.P-1 is the company of which O.P-2 is the Managing Director ,dealing with the business of land development and construction of building. O.P nos. 3 and 4 are land owners. One Development Agreement was struck between the land owners and the developers in 2009 and the land owners also executed a general Power of Attorney dated 2.4.2009 in favour of the aforesaid developer. Thereafter, the developer i.e O.P-2 executed a sale agreement on 4.8.2011 in favour of the complainant and thereby he agreed to sell the flat succinctly described in Schedule B to the complaint to the complainant for a total consideration price of Rs.14,75,200/- within 18 months from the date of execution of sale agreement. Rs.14,40,200/- was paid in all by the complainant to the developer on different dates. Possession of the flat was also handed over to the complainant on 13.8.2014 by the developer . But all on a sudden, to her utter surprise, the complainant came to see in January 2016 when she went to her flat that the entrance gate of the flat is sealed with steel sheet duly welded to the wall. The flat has been lying in same condition still now and complainant’s request for possession of the flat have been turned down by both the developers and the land owners. Now, the complainant prays for delivery of possession of the flat ,registration of the flat, compensation etc. and in the alternative to refund all the consideration price along with compensation. Hence, the case.
Notice of the case has been served upon the O.P nos. 1 and 2 through paper publication . Still, they have not turned up to contest the case and, therefore, the case is heard exparte against them.
It is O.P nos. 3 and 4 who have been contesting the case by filing written version, wherein, it is contended inter alia that they executed the development agreement and general power of attorney in favour of O.P nos. 1 and 2 and by virtue of that development agreement they are entitled to 25% of the construction area and also the building to be constructed upon the schedule land. But, the O.P no.2 did not deliver possession of their allocated flats and, therefore, they have executed a Cancellation Deed on 24.11.2014 having revoked the General Power of Attorney dated 2.4.2009. They have also filed T.S no. 121 of 2016 against O.P-1 in the Court of Ld. Civil Judge , 2nd Court, Jr. Division at Baruipur. They are not service providers of the complainant and ,therefore, the case is not maintainable against them. The case should, therefore, be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidences on affidavit are filed by the complainant and O.P nos. 3 and 4 and the same are kept in the record after consideration. Questionnaire, replies filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is stated by the complainant in her evidence that O.P-2 made a sale agreement on 4.8.2011 and thereby he agreed to sell the subject flat as described in Schedule B to the complaint to her for a consideration price of Rs.14,75,200/-. It is also stated by her in her evidence that the possession of the said flat was agreed to be delivered to her by the O.P-2 within 18 months of the date of execution of the agreement. It further transpires in her evidence that the complainant has paid Rs.14,40,200/- in all to O.P-2 on different dates. A copy of sale agreement dated 4.8.2011 has also been filed on record by the complainant. The complainant has also filed the money receipts which go a long way to prove that the complainant has paid Rs.14,40,200/- to O.P-2. Now, it is found that the complainant has paid almost entire consideration price of the flat to the O.P-2 in accordance with the terms of the agreement. But, it is O.P-2 who has not honoured the terms of the agreement; he has not delivered possession of the flat to the complainant and has not also effected the deed of conveyance in favour of the complainant in respect of the subject flat. The possession of the flat was once delivered to the complainant on 13.8.2014; but the said possession has now been snatched away by the land owners. Now, the complainant has no possession in the subject flat. It also transpires on record that the subject flat is under the possession of the land owners i.e O.P nos. 3 and 4. All these evidences have remained unchallenged and we find no reason whatsoever to disbelieve the evidence of the complainant. Regards being had to the unchallenged evidence of the complainant , as discussed above, we are of the opinion that the O.P-2 has caused deficiency in service by not delivering the possession of the flat and by not causing registration of the flat in favour of the complainant within the time as agreed upon between the parties. So, the O.P-2 is guilty of deficiency in service.
O.P nos. 3 and 4 are land owners and according to the terms of the development agreement, they are also bound to execute the sale deed in favour of the complainant in respect of the subject flat. They will have to register the subject flat in favour of the complainant along with the developer.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos.3 and 4 and decreed exparte against O.P nos. 1 and 2 with a cost of Rs.10,000/- to be paid by O.P nos. 1 and 2 to the complainant .
The O.Ps ,particularly O.P nos. 1 and 2 are directed to deliver the possession of the subject flat to the complainant and all the O.Ps are directed to cause registration of the said flat in favour of the complainant with a sum of Rs.1 lac to be paid by O.P nos. 1 and 2 to the complainant as compensation ,within a month of this order, failing which the O.P nos. 1 and 2 are directed to refund Rs.14,40,200/- to the complainant with compensation to be paid by way of interest @12% p.a from the date of payment of each installments till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
