DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 290_ OF ___2015
DATE OF FILING : 18.6.2015 DATE OF PASSING JUDGEMENT: 13.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : 1. Smt. Gayatri Chaudhuri, wife of late Nilim Kumar Chaudhury
2. Smt. Sikha Chowdhury, wife of late Partha Pratim Chowdhury , both of 8/31, Bejoygarh, P.S Jadavpur, Kol-32.
O.P/O.Ps : 1. P.T.S Space International, 23, Aswini Nagar, P.S Jadavpur, Kolkata – 40, represented by its Partners –
(i.a) Smt. Sukanya Dutta, wife or late Tapas Dutta
(i.b) Smt. Soumili Dutta, daughter of late Tapas Dutta, both of 10, Lotus Park. P.S Jadavpur, Kolkata – 92.
(ii) Sri Subimal Sarkar, son of late Nalini Behari Sarkar of 10, Lotus Park, P.S Jadavpur, Kolkata – 92.
(iii) Sri Prabir Biswas, father’s name not known of 23, Aswini Nagar, P.S Jadavpur, Kolkata – 40, the Partneship Firm being represented by the Signing Authority-Sri Tapas Dutta ,son of Binoy Bhusan Dutta ,residing at 10, Lotus Park. P.S Jadavpur, Kolkata – 92.
2 (i) Sri Kalachand Paul, father’s name not known.
2(ii) Smt. Lila Paul alias Lily Paul ,wife of lzatge Biswanath Paul of 2/171, Bejoygarh Colony, P.S Jadavpur, Kolkata- 32.
J U D G E M E N T
Sri Ananta Kumar Kapri, President
This is a case instituted under section 12, Consumer Protection Act, 1986 by the complainants ,alleging deficiency in service on the part of the O.P-1, O.P-1(ia),O.P-1(ib) and O.P-1(ii) & OP(iii) i.e the developers.
The case of the complainants is that the complainants made an agreement with the developers for purchasing a self contained residential flat for a consideration price of Rs.4 lac. The agreement was made on 7.2.2008 and the complainants paid Rs.1,70,000/-only to Tapas Dutta i.e O.P-1(i) ,since deceased, on different dates ,but the khas possession of the flat was not delivered to the complainants and the registered deed of conveyance was not also effected in favour of them. So, the complainants have come up before this Forum with the filing of the instant case , praying for khas possession of the flat and also for registration of the deed of conveyance and in the alternative, for refund of Rs.1,70,000/-and for payment of Rs.20,000/- as compensation for mental pain and agony along with a payment of Rs.80,000/- for payment of enhanced stamp duty. Hence, this case.
Summons were served upon the O.Ps. But the O.P nos.1(ia) & 1(ib) and O.P no.2(i) and O.P no.2(ii) have not turned up to contest the case and, therefore, the case is heard exparte against them.
On the other hand, the O.P -1(ii) and O.P-1(iii) have been contesting the case by filing written statement. O.P -1(ii) i.e Subimal Sarkar has contended that Tapas Dutta, the O.P-1(i) was his friend ; he took a good amount of money from him in order to invest in his business and collected his signature on some blank papers and stamp papers at various times. He i.e Tapas Dutta also failed to refund the money taken from him and the complainants in collusion with the legal heirs of Tapas Dutta have filed the instant case falsely against him to squeeze money. His further case is that he never executed any sale agreement in favour of the complainant , nor did he receive any consideration price also. He was never involved with the construction of the subject flat and ,therefore, there arises no cause of action against him. The case should , therefore, be dismissed against him.
The O.P no.1(iii) i.e Prabir Biswas has contended in the written statement filed by him that he did not enter into any agreement for sale with the complainants and it is only Tapash Dutta who is liable to meet up the grievance of the complainants.
Upon the averments of the parties the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps liable for deficiency in service as alleged by the complainants?
- Are the complainants entitled to get the reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Affidavits-in-chief are filed by the complainants and also by the O.P no.1(iii). Questionnaire and reply filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
POINT NOS. 1 AND 2:-
Heard the submissions of Ld. Lawyers appearing for the complainants and the contesting O.Ps. Perused the complaint, written statement and the evidences adduced on behalf of the parties.
Considered all these.
The agreement for sale (Xerox copy) dated 7.2.2008 is filed herein on behalf of the complainants. On perusal of this agreement it is found that the agreement is signed only by Tapash Dutta i.e the predecessor in interest of O.P no.1(ia) and O.P(ib). It is found to be not signed by the O.P-1(ii) and O.P-1(iii) i.e Subimal Sarkar and Prabir Biswas . It has been submitted on behalf of those O.Ps that they were never party to that agreement and ,therefore, no liability can be cast upon them for any kind of deficiency in service, which may arise out of non-performance of the act in accordance with the terms of that agreement. As the O.P-1(ii) and O.P-1(iii) are not parties to the said agreement, any kind of liability arising out of deficiency in service can never be fastened with them. It is only Tapash Dutta who is found to be sole signatory to the agreement among the Developers and ,therefore, it is none but he who is only liable to satisfy the grievance ,if any, of the complainants.
It is the grievance of the complainants that possession of the flat has not been delivered to them and that the deed of conveyance has not also been effected and registered in favour of them.
True, there is also an alternative prayer submitted by the complainants to the effect that money paid to the deceased Tapas Dutta be refunded to them along with compensation for mental agony and harassment. The agreement was executed only by late Tapash Dutta in the year 2008 and the complainants paid Rs.1,70,000/- only to the said developer on different dates. Since the execution of the agreement , 10 years have passed away and by this time the developer i.e Tapash Dutta has left this world once and for all. Regard being had to all these facts and circumstances of the case we are of the opinion that it will be far better to order the refund of the money received by the late developer from the complainants instead of delivering the khas possession and effecting the registration of sale deed in favour of the complainants. As Tapas Dutta is no more available to perform the part of his obligation as ordered by this Forum ,his legal heirs i.e O.P-1(ia) and O.P1(ib) will have to perform the obligation of late Tapas Dutta ,their predecessor in interest.
Point nos. 1 and 2 are thus answered in favour of the complainants.
In the result, the case succeeds.
Hence,
ORDERED
That the case be and the same is decreed exparte against O.P 1(ia) and (ib) with cost of Rs.10,000/- and dismissed on contest against O.P nos.1(ii), O.P`1(iii) and also dismissed exparte against O.P-2(i) and O.P-2(ii) without cost.
The O.P nos. 1(ia) and O.P no. 1(ib) ,who are jointly and severally liable, are hereby directed to make payment of Rs.1,70,000/- to the complainant with interest @10% p.a thereon to be paid from the date of respective payment of that amount till full realization thereof, and also to make payment of Rs.20,000/- as compensation for harassment and mental agony, and Rs.10,000/- as litigation cost as referred to above, within a month of this order ,failing which the amounts of compensation and cost will bear interest @10% p.a till realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
