DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 88 OF 2017
DATE OF FILING: 12.07.2017 DATE OF JUDGEMENT: 28.08.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : 1. Sri Sanjib Karmakar, S/O – Sri Dulal Chandra Karmakar.
2. Smt. Kakali Karmakar, W/O - Sri Sanjib Karmakar.
Both residing at C/o. Nirmal Dey, Nowapara 3rd Lane, P.O. + P.S. – Sonarpur, Kolkata – 700 150.
O.P/O.Ps : 1. Smt. Baishali Ghosh (Nee Mukherjee), W/O – Sri Tapan Ghosh, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. – Sonarpur, Kolkata – 700 149.
2. Smt. Piyali Basu (Nee Mukherjee), W/O – Sri Abhijit Basu, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. – Sonarpur, Kolkata – 700 149.
3. Sri Ram Chandra Shaw, S/O – Kapil Shaw, Residing at 38, Raipur Road, P.O. – Garia, P.S. – Jadavpur, Kolkata – 700 084.
4. M/S. Sarada Construction, A sole proprietorship Firm, Represented through Sri Ram Chandra Shaw, Having its office at East Baidya Para, P.O. + P.S. – Sonarpur, Kolkata – 700 150.
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JUDGMENT
Sri Ananta Kumar Kapri, President
This is a case filed under section 12, CP Act, 1986 by the complainant alleging deficiency in service on the part of the O.P.s.
Facts leading to the filing of the instant case may be epitomized as follows.
O.P.s nos. 1 and 2 are land owners and O.P. nos. 3 and 4 are developers. Sale agreement dated 28.04.2014 was executed by and between the complainants and the O.P. no. 3 i.e. the developer and thereby the developer agreed to sell a self-contained flat measuring 774 Sq.ft. super built-up area, as succinctly described in schedule B to the complaint, for Rs. 12,00,000/-. The entire consideration price of Rs. 12,00,000/- has been paid by complainants to O.P. no. 3 on different dates. Sale deed has been also executed and registered on 27.07.2015 by O.P. no. 3 / developer in favour of the complainants. But, possession of the flat and completion certificate of the building are yet to be delivered to the complainants. Consistent demands of the complainants for possession of C.C. have turned into a blind alley. Now, the complainants pray for delivery of physical possession of the flat, payment of compensation etc. Hence, this case.
Written version is filed by O.P. no. 3 / developer wherein it is contended that the case is not maintainable as it is not a consumer dispute. According to him, possession of the flat was made over to the complainants. The case is vexatious one filed after a long lapse of time since the date of registration of the flat and therefore the case should be dismissed in limini with cost.
Written version is also filed by O.P. no. 2 i.e. the owner, wherein it is contended inter-alia that the developer (O.P. no. 3) has cheated O.P. nos. 1 and 2 by transferring the subject flat to the complainants. According to them, the subject flat falls into owner’s allocation and O.P. no. 3 has no locus standi to transfer that flat to the complainants. Complainants and developer are in collusion with each other. Complainants are not entitled to the possession of the flat and therefore the case should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR CONSIDERATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainants?
- Are the complainants entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by the complainants, O.P. no. 2 and O.P. nos. 3 and 4. Questionnaires and replies filed by the parties are kept in record. BNA is only filed by complainants and the same is also kept in record after consideration.
DECISION WITH REASONS
Point no. 1 and 2 :
In the instant case, registration of the deed of conveyance has been effected by the developer i.e. O.P. no. 3 in favour of the complainants with respect to the subject flat. The grievance of the complainants is that the possession of the flat has not been delivered to them by the developer. The developer has not been able to produce any possession letter before the forum to prove that the possession of the subject flat has been made over to the complainants by him. He was put a question, vide question no. 16 by the complainants as to whether possession of the flat is made over to the complainants and whether possession letter has been delivered to the complainants or not. O.P. no. 3 has given no reply to that question of the complainants during written cross examination. O.P. no. 2 is the land owner and she was also asked, vide question no. 16 of the questionnaires put to her by complainants, as to whether the complainants are in possession of the subject flat. In reply, she was stated that she is not responsible to give possession of the flat to the complainants. From all these, it stands established that the possession of the subject flat has not been delivered to the complainants by the developer i.e. O.P. no. 3, although O.P. no. 3 has effected a registered deed of conveyance in favour of the complainants in respect of the subject flat. This is one chapter of the episode and here is still another chapter of the episode left for discussion.
It is the version of O.P. no. 2 i.e. the land owner that she has been cheated by the developer who had sold away the flat to the complainants from her owner’s allocation. The developer has not been able to give satisfactory answer to the charge levelled against him by the land owner. A copy of development agreement dated 27.07.2011 is filed on record. On perusal of the said development agreement and also the deed of conveyance of the complainants, it is found that the subject flat lies in the allocation of owner i.e. O.P. no. 2 and the developer i.e. O.P. no. 3 in his shenanigans has sold away the said flat from owner’s allocation to the complainants. The complainants have not also gone deeper into the matter; they have purchased the flat blindly, relying upon the version of the developer i.e. O.P. no. 3. Now, it is found that the developer has no authority to sell the flat from owner’s allocation. He i.e. the developer has acted in contravention of the terms and condition of the development agreement and has sold away the flat to the complainants. Such transgression of the terms of development agreement by the developer is not permissible in law. This being the facts and circumstances of the case, it is found that the developer i.e. O.P. no. 3 has no locus standi to sell out the subject flat to the complainants from owner’s allocation of O.P. no. 2 and therefore the deed of conveyance dated 27.07.2015 executed by the developer i.e. O.P. no. 3 in favour of the complainants is unlawful and invalid. The complainants cannot get the subject flat which has been registered in their favour. Regard being had to all these, we are inclined to pass an order in favour of the complainants as hereunder for the reason that the dexterous act of the developer appears to be more than deficiency in service.
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 with a cost of Rs. 10,000/- and dismissed on contest against O.P. no. 2. The case also stands dismissed ex-parte against O.P. no. 1.
The developers i.e. O.P. nos. 3 and 4 are directed to deliver a new flat of similar type with similar area and similar facility, well complete in all respects, to the complainants and to register the same in favour of the complainants at his own cost, provided the complainants are ready and willing to accept the said flat, within a month of this order, failing which he i.e. O.P. no. 3 shall return the entire consideration price i.e. Rs. 12,00,000/- to the complainants with interest at the rate of 12% p.a. from date of payment till full realization thereof.
In case the complainants do not accept the new flat sought to be provided to them by O.P. no. 3, he i.e. O.P. no. 3 is also directed to pay a sum of Rs. 7,00,000/- as compensation to the complainants to mitigate their loss, mental agony and harassment caused to them, within the aforesaid period i.e. one month of this order, failing which the compensation amount will bear interest at the rate of 12% p.a. till full realization thereof.
O.P. no. 3 is further also directed to supply completion certificate to the complainants, if a new flat is delivered to the complainants within aforesaid period of one month, otherwise latitude is given to the complainants to execute this award through the instrumentality of the forum.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree Member President
Directed and corrected by me
President
