1. Shivalik Developers and Constructor , a Proprietorship Firm. V/S Sri Lakshmi Kanta Mukherjee. S/O Late Shankar Kumar Mukherjee. - Consumer Court Case

West Bengal

South 24 Parganas

CC/289/2015

Sri Lakshmi Kanta Mukherjee. S/O Late Shankar Kumar Mukherjee. - Complainant(s)

Versus

1. Shivalik Developers and Constructor , a Proprietorship Firm. - Opp.Party(s)

Jayoti Poddar.

23 Sep 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

C.C. CASE NO. _289 OF ___2015____

DATE OF FILING :18.6.2015 DATE OF PASSING JUDGEMENT:_23/09/2016

Present : President :

Member(s) : Smt. Sharmi Basu & Subrata Sarker

COMPLAINANT : Sri Lakshmi Kanta Mukherjee,s/o late Shankar Kumar Mukherjee of Village & P.O Muragachia, P.S. Nakashipara, Dist. Nadia.

VERSUS -

O.P/O.Ps : 1. Shivalik Developers & Contractor, of 345, Kendua Main Road, Kolkata -84, represented by its Sole Proprietor

1a. Sri Jayanta Das,s/o late Mani Mohan Das of Surendra Apartment, 473, Sreenagar Panchashyer Road, P.S. Purba Jadavpur, Kolkata – 84.

2. Sri Jyoti Sarkar,s/o late Matilal Sarkar of B/21, Birnagaar Colony, P.S. Jadavpur, Kolkata – 86.

3. Sri Swapan Sarkar, s/o late Matilal Sarkar of B/21, Birnagaar Colony, P.S. Jadavpur, Kolkata – 86

4. Sri Tapan Sarkar, s/o late Matilal Sarkar of B/21, Birnagaar Colony, P.S. Jadavpur, Kolkata – 86

________________________________________________________________________

J U D G E M E N T

Smt. Sharmi Basu, Member

In a nutshell the case of the complainant is that one Matilal Sarkar, since deceased, the predecessor-in-interest of O.P nos. 2 to 4 was the absolute owner of premises no.17, Bir Nagar, P.S. Jadavpur, Kolkata -86 and during his lifetime he entered into a development agreement and executed a power of attorney in favour of O.P-1a for construction of a multi storied building on certain terms and conditions. Complainant in search of a residential accommodation came into contact with the O.P1a and entered into an agreement for sale on 1.10.2008 for purchasing a flat measuring 380 sq.ft super built up area at the said premises at a total consideration of Rs.3,50,000/- ,out of which complainant already paid Rs.3,40,000/- and Rs.10,000/- is only due . On 6.1.2012 O.P-1a delivered peaceful vacant possession of the said flat to the complainant by issuing a possession letter to the complainant . But inspite of several requests upon the O.Ps to execute and register the deed of conveyance, it yielded no result. Even the O.P-1 with criminal force dispossessed the complainant from the flat. Hence, this case praying for direction upon the O.P-1a for delivery of possession of the said flat and for execution and registration of the deed of conveyance, to pay Rs.2 lacs as compensation for suffering harassment and mental agony and cost of Rs. 50,000/-.

The O.Ps did not appear and did not contest the case inspite of serving summon upon them, for which case is proceedings in exparte against them.

Points for Decision`

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

Decision with reasons

All the points are taken together as they are interlinked.

Before going into the merits of the case it is needed to be mentioned here that even after valid service of notice upon all the O.Ps none of them has appeared before this Forum to ventilate their submissions with respect to the allegations raised by the complainant against them, for which this Forum has no other alternative but to adjudicate the case against the O.Ps in exparte and all the contentions and the documents brought before this Forum by the complainant against the O.Ps being unchallenged piece of testimony are considered as true.

After scrutinizing vividly the complaint, evidence on affidavit, all the documents and hearing submission of the Ld. Advocate of the complainant it is crystal clear that complainant has entered into an agreement for sale on 1.10.2008 with intention to purchase a flat with the O.Ps where the O.P-1 is the developer and rest O.Ps are land owners. It is beyond doubt that though the complainant was in possession of the flat in question initially on 6.1.2012 but he was dispossessed later which is evidence from the FIR dated 13.11.2014 .

Here it is also pertinent to mention that the complainant has prayed for delivery of re-possession but in this regard it is opined by this Forum that as he has already received the possession letter this Forum is not proper to give such direction and for the same he has to knock the competent court of Civil Procedure for getting such relief. But it is also fact that as per agreement the developer as well as the land owners have vicarious liability to give physical possession of the flat in question and to execute and register the deed of conveyance in favour of the complainant. In this regard we are keeping in mind the remarkable judgment passed by the Hon’ble Apex Court against the Lucknow Development Authority where the Hon’ble Supreme Court has been pleased to observe that if the developer having power of attorney or power through development agreement is entitled to receive consideration amount of a flat in the premises built in the land of the land owners in question, developer as well as the land owners are duty bound to hand over possession of the flat and to execute and register the deed of conveyance of the suit flat within a moderate period and failing which it should be considered as deficiency in rendering services by the developer and land owners and as the developer in this case received the consideration money as a whole or in part, is strictly liable to compensate the complainant aptly.

Keeping in mind the landmark judgment of the Hon’ble Apex Court in the instant case we have no hesitation to hold that being the developer, after receiving Rs.3,40,000/- towards to tal consideration of Rs.3,50,000/- should give peaceful possession to the complainant and all the O.Ps are jointly and/or severally liable for execution and registration of the deed of conveyance in favour of the complainant.

It is also beyond doubt that for the aforesaid inaction and highhandedness and also deficiency in rendering services to the complainant on the part of the O.P-1 developer , complainant has to suffer tremendous mental agony, physical harassment and also profuse loss for being deprived to enjoy the possession of the flat ,though he has paid almost full consideration amount except Rs.10,000/- only, which he is ready to pay at any time. Moreover, complainant has to bear huge excess amount for stamp duty for execution and registration of the deed of conveyance for development of that area where the flat in question is situated.

Thus all the points are discussed and the prayer of the complainant is allowed in part.

Hence,

Ordered

That the case be and the same is allowed on contest in part with cost against O.P1 and 1a and without cost against other O.Ps.

All the O.Ps are directed to execute and register the deed of conveyance in respect of the flat in question as per agreement for sale dated 1.10.2008 in favour of the complainant.

O.P nos. 1 and 1a are also directed to pay compensation to the tune of Rs.2 lac and litigation cost of Rs.5000/- to the complainant .

O.P nos.1 and 1a are also directed to hand over peaceful vacant possession of the flat in dispute to the complainant .

All the orders should be complied with within 45 days from the date of this order, failing which, each of the O.Ps shall pay Rs.50/- per day to the complainant after the stipulated period is over till the date of full and final compliance of the order in its entirety.

Complainant is at liberty to execute the order through this Forum after the stipulated period is over.

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

Member President

Dictated and corrected by me

Member

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