DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _198_ OF ___2015__
DATE OF FILING : _23.4.2015__ DATE OF PASSING JUDGEMENT:28/06/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Tapas Das, son of late Kartick Chandra Das of 9B, Chetla Road, P.S Chetla, Kolkata -27.
-VERSUS -
O.P/O.Ps : 1. Smt Iti Mandal, wife of Sri Pratap Mandal of 46, Dhalipara, Purba Putiary, P.S Regent Park, Kolkata – 93.
2. Sri Rathin Manda, son of late Sudas Chandra Mandal of 144, Chakdah Purba Putiary, Gurucharan Naskar Road, P.S Regent Park, Kolkata -93.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act filed by the complainant on the ground that O.P-1 is a developer and O.P-2 is a land owner. It has further stated that O.P-1 being authorized by virtue of Power of Attorney undertook construction job of a building after demolishing old structure a premises no.144,Chakdah Purba Putiary, Gurucharan Naskar Road, P.S Regent, Kolkata - 93. Complainant already interested to buy a flat in the second floor Southern side being flat no.2B and to that effect an agreement for sale was executed on 27.12.2012 of an area of 570 sq.ft super built up area of flat no.2B in the proposed building at a consideration of Rs.10,20,000/- . The said agreement was registered before the ADSR ,Alipore and complainant paid already Rs.9,20,000/- out of total consideration of Rs.10,20,000/- as per terms and conditions laid down in the said agreement. It has claimed that O.P nos. 1 and 2 are under obligation to execute and register the deed of conveyance in respect of the said flat within three months from the date of registration of the agreement dated 27.12.2012 and it was further agreed by the parties that remaining Rs.1 lac is to be paid to the O.P-1 at the time of handing over possession of the flat as per terms of the Agreement dated 27.12.2012 . It has claimed that complainant requested the O.P-1 to hand over possession and register the deed of conveyance in respect thereof but O.Ps did not pay heed to it. Lawyer’s letter was also sent but nothing was done. Hence, this case with a prayer to direct the O.Ps to execute and register the deed of conveyance in favour of the complainant and hand over possession of the said flat in question and also prays for Rs.50,000/- towards compensation and cost as deem fit and proper.
The case against the land owner O.P-2 is running in exparte.
The O.P-1 ,developer, is contesting the case by filing written version and has admitted the existence of agreement and also admitted that complainant paid Rs.9,20,000/- . It is the further case of the O.P-1 that complainant undertook and assured that he would pay Rs.1 lac towards extra area of 60 sq.ft and Rs.40,000/- for extra work to the O.P-1 but the same has not yet been paid as yet. So, complainant is not in clean hand. It has further claimed that complainant has been enjoying 75 sq.ft extra for which complainant is liable to pay . So, the case is barred by limitation. It has claimed that complainant already took forceful possession of the flat and has been enjoying total area of 645 sq.ft and as such complainant is liable to pay for the extra area of 75 sq.ft . So, it is the further case of the O.Ps that complainant has to pay Rs.2,40,000/- ,not Rs.1 lac. Apart from that complainant is liable to pay for the extra area occupied by him. Accordingly, O.P-1 prays for dismissal of the case as there is no negligence and deficiency in service on the part of the O.P-1 .
Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.
Decision with reasons
Admittedly there was an agreement between the parties for purchasing a flat measuring 570 sq.ft in the second floor southern side being flat no.2B at a consideration of Rs.10,20,000/- and it is admitted that complainant had paid Rs.9,20,000/- In terms of the agreement for sale it was mentioned that remaining Rs.1 lac has to be paid soon after possession and deed of conveyance will be executed in favour of the complainant within three months from the date of receipt of the aforesaid consideration money in full and on receipt of full consideration as above the developer shall immediately deliver possession of the flat or the car parking space, as the case may be.
Thus we find that Rs.1 lac is still due but O.Ps created a new story in his written version that he will get Rs2,40,000/- for extra work and excess enjoyment of 75 sq.ft by the complainant. But O.P-1 failed to prove the same. It is settled principle of Law that onus is upon the parties who challenged the same. Herein, O.P-1 by filing written version challenged that complainant is occupying 75 sq.ft more area. So, onus clearly lies upon the O.P-1 to prove the same by filing one application before this Bench for appointment of expert Civil Engineer for measurement of the flat, but inevitable did not happen. Accordingly the said prayer has no leg to stand upon. Moreover, Agreement for Sale is a registered instrument. Parties should not be left out from the terms and conditions of the agreement for sale which is totally binding upon the parties and no-one can claim more area and more money which are not mentioned in the registered agreement for sale dated 27.12.2012 Thus the claim of the O.P-1 in his written version has no leg to stand upon and we also find that nothing has been suppressed by the complainant and complainant is totally acted according to the terms of the registered agreement. Hence, we find that there is strong deficiency of service on the part of the O.Ps since3 O.Ps did not hand over possession letter to the complainant and did not take any initiative for arrangement of execution and registration of the said flat after accepting Rs.1 lac andO.P-2 being a landlord is also duty bound to register the same.
With that observation, it is
Ordered
That the petition of complaint is allowed on contest against O.P-2 and in exparte against O.P-1 .
O.P-1 is hereby directed to issue possession letter ,if possession has already been delivered to the complainant in the midst, and also to arrange for registration of the flat along with O.P-2 who will execute and register the flat being a land owner , failing which both the O.Ps are hereby directed jointly and/or severally to pay compensation to the tune of Rs.50,000/- to the complainant .
The complainant is also directed to deposit Rs.1 lac to the office of this Forum within 15 days from the date of this order through Demand Draft in the name of the O.P-1 and said Draft will be handed over to the O.P-1 soon after registration is completed and possession letter is handed over to the complainant by the O.P nos. 1 and 2, as the case may be, failing which complainant is at liberty to execute and register the deed of conveyance through the machinery of the Forum ,if the amount of Rs.1 lac is deposited by the complainant in the office of this Forum through Demand Draft in the name of the O.P-1 ,in light of the observation made in above.
The O.Ps are also directed jointly and/or severally to pay Rs.5000/- towards litigation cost to the complainant within 30 days from the date of this order.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the petition of complaint is allowed on contest against O.P-2 and in exparte against O.P-1 .
O.P-1 is hereby directed to issue possession letter ,if possession has already been delivered to the complainant in the midst, and also to arrange for registration of the flat along with O.P-2 who will execute and register the flat being a land owner , failing which both the O.Ps are hereby directed jointly and/or severally to pay compensation to the tune of Rs.50,000/- to the complainant.
The complainant is also directed to deposit Rs.1 lac to the office of this Forum within 15 days from the date of this order through Demand Draft in the name of the O.P-1 and said Draft will be handed over to the O.P-1 soon after registration is completed and possession letter is handed over to the complainant by the O.P nos. 1 and 2, as the case may be, failing which complainant is at liberty to execute and register the deed of conveyance through the machinery of the Forum ,if the amount of Rs.1 lac is deposited by the complainant in the office of this Forum through Demand Draft in the name of the O.P-1 ,in light of the observation made in above.
The O.Ps are also directed jointly and/or severally to pay Rs.5000/- towards litigation cost to the complainant within 30 days from the date of this order.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
