DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 148_ OF ___2016
DATE OF FILING : 19.12.2016 DATE OF PASSING JUDGEMENT: 08.01.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Shri Sibabrata Sengupta, son of alte Pabitgra Kumar Sengupta of Block-4, Flat no.7, 96, Kankulia Road, P.S Lake, Kolkata – 29.
Through Consumers’and Elderly’s Rights Protection Society (Regd. No.S/IL/No.57340 of 2008-2009 having its office at 4H, Shanagar Road, P.S Tollygunge, Kolkata – 26.
.
-VERSUS -
O.P/O.Ps : 1. Shri Subrata Gupta, son of Shri Sushanta Gupta of 11, Baikuntha Saha Road, P.S Purba Jadavpur, Kolkata – 75. Carrying on business in the name and style of Uma Housing Board, at 1/16A, Prince Golam Mohd. Shah Road, Ground Floor, Kolkata-700 095.
Now residing at 6, West Road, Jadavpur, P.S Santoshpur, Dist. South 24-Parganas, Kolkata – 700 075.
2. Smt. Manju Naskar, w/o late Balai Chandra Naskar alias Balai Naskar, South Ghosh Para, P.O Sonarpur, P.S Sonarpur, Kolkata – 150, South 24-Parganas.
3. Shri Somnath Naskar, s/o late Balai Chandra Naskar alias Balai Naskar, South Ghosh Para, P.O Sonarpur, P.S Sonarpur, Kolkata – 150, South 24-Parganas.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Harassed, both mentally and emotionally by persistent refusal of the O.p-1 i.e the developer to deliver the vacant possession of the flat to the complainant, the complainant has filed the instant case under section 12 of the C.P Act, 1986 , alleging deficiency in service against the O.P-1 and other O.Ps.
Briefly stated, the facts leading to the filing of the instant case by the complainant may be epitomized as follows :
The complainant decided to purchase a flat and , therefore, an agreement was executed by and between him and O.P-1 i.e the developer on 6.7.2009 and thereby he i.e the complainant agreed to pay a total consideration price of Rs.8,61,300/-/-to O.P-1 for the flat. A total payment of Rs.8,29,195/- was made by the complainant to the developer on different dates. The possession of the flat was agreed to be delivered to the complainant within 18 months of the date of agreement. But the O.P-1 was not able to complete the construction of the flat within the said period ; the possession of the flat is yet to be delivered to the complainant b y the O.P-1. Hence, complainant has filed the instant case praying for issuing a direction to the O.Ps for delivery of possession of the flat to him or in the alternative for refund of the consideration price paid to the O.P-1 along with compensation, cost etc. Hence, this case.
The O.P-1 i.e developer appeared in the case by filing vakalatnama but thereafter he has not filed written version and, therefore, the case is heard exparte against him.
The O.P nos. 2 and 3 , who are land owners, have filed written statement in the instant case contending inter alia that they are not the service providers and complainant is not a consumer vis a vis to them and ,therefore, the complaint is not maintainable against them. According to them, the complaint should be dismissed against them.
Upon the submissions of both sides following issues are formulated for consideration :
ISSUES
- Is the complaint maintainable against the O.P nos. 2 and 3?
- Is the complainant entitled to get relief as prayed for ?
DECISION WITH REASONS
ISSUE NO.1 ;
A perusal of the complaint itself reveals that the O.P-1 is the developer and the O.P nos. 2 and 3 are the owners of the land upon which the flats have been constructed by the O.P-1. A Development Agreement was effected between the complainant and the O.P-1 i.e the developer. In an agreement of such kind, the developer becomes the service provider; the land owner is never regarded as a service provider in so far as the complainant is concerned. It is well settled law now that a complaint is not maintainable unless the O.P is service provider. As the O.P nos. 2 and 3 are not the service providers and as they are land owners only, the complaint seems to be not lawfully maintainable against the O.P nos. 2 and 3. It is only maintainable against the developer i.e O.P-1 who is service provider to the complainant. Accordingly, the complaint should be dismissed against the O.P nos. 2 and 3 and it is maintainable against O.P-1, the developer only.
Issue no.1 is thus disposed of accordingly.
Issue no.2:
It is the case of the complainant that he executed an agreement with O.P-1 i.e the developer and the developer thereby agreed to sell a flat to him for a consideration price of Rs.8,61,300/-. It is also stated by the complainant in his affidavit-in-chief that he has paid Rs.8,29,195/- to the developer on different dates. The developer has not yet delivered the possession of the flat to the complainant and thus the complainant has been victimized. All these are stated by the complainant in the affidavit-in-chief filed by him. All the averments of the complainant as transpiring in his affidavit in chief have remained un-rebutted. The O.P-1 i.e the developer has not turned up to contest the case and it is only for the reason that he has nothing to challenge whatever is stated by the complainant in this case. Regards being had to this aspect, we are of the opinion that the complainant has been able to establish his version in the case and he is entitled to get the relief as prayed for and the relief is accorded as hereunder.
Points no.2 is thus answered in favour of the complainant.
In the result the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed exparte against the O.P-1 with cost which is quantified to be Rs.10,000/-and dismissed on contest against the O.P nos. 2 and 3 without cost.
The O.P-1 is directed to hand over the vacant possession of the flat to the complainant and to effect registration of flat in his favour within a month of this order ,having received the balance consideration money and also to pay compensation of Rs.50,000/-for causing mental suffering to the complainant. At the same time, it is reiterated that if the O.P-1 fails to deliver the possession of the flat to the complainant within the time stipulated above i.e one month, the O.P-1 will have to refund the money received by him from the complainant i.e Rs.8,29,195/- along with interest @12% p.a from the respective dates of payment till realization thereof and in that case, the O.P-1 will also have to pay a damage of Rs.2 lacs to the complainant as the complainant will be required to pay escalated value in case of purchase of another flat elsewhere.
The refunded money , amount of compensation, amount of damage and amount of cost are to be paid by the O.P-1 to the complainant within a month of this order ,failing which, the refund amount, amount of compensation and amount of damage as awarded above will bear interest @12% p.a till realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Dictated and corrected by me
President
We / I agree.
Member Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is allowed exparte against the O.P-1 with cost which is quantified to be Rs.10,000/-and dismissed on contest against the O.P nos. 2 and 3 without cost.
The O.P-1 is directed to hand over the vacant possession of the flat to the complainant and to effect registration of flat in his favour within a month of this order ,having received the balance consideration money and also to pay compensation of Rs.50,000/-for causing mental suffering to the complainant. At the same time, it is reiterated that if the O.P-1 fails to deliver the possession of the flat to the complainant within the time stipulated above i.e one month, the O.P-1 will have to refund the money received by him from the complainant i.e Rs.8,29,195/- along with interest @12% p.a from the respective dates of payment till realization thereof and in that case, the O.P-1 will also have to pay a damage of Rs.2 lacs to the complainant as the complainant will be required to pay escalated value in case of purchase of another flat elsewhere.
The refunded money , amount of compensation, amount of damage and amount of cost are to be paid by the O.P-1 to the complainant within a month of this order ,failing which, the refund amount, amount of compensation and amount of damage as awarded above will bear interest @12% p.a till realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
