West Bengal

South 24 Parganas

CC/67/2015

Smt. Namita Ghosh W/O Late Bijoy Ghosh. - Complainant(s)

Versus

1. Smt. Lakshmi Rani Paul alias Lakshmi Paul, W/O Sri Dwijen Kumar Paul. - Opp.Party(s)

29 Jun 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

         C.C. CASE NO. _67_ OF ___2015__

 

DATE OF FILING : 9.2.2015                  DATE OF PASSING JUDGEMENT:  29.06.2015.

 

Present                        :   President       :  

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   Smt. Namita Ghosh,w/o late Bijoy Ghosh of 5/23, Dharmatala Road, P.S. Kasba, Kolkata – 42.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.     Smt. Lakshmi Rani Paul alias Lakshmi Paul ,w/o Sri Dwijen Kumar Paul,5/23, Dharmatala Road, P.S. Kasha, Kolkata – 42.

                                             2.     Sri Gopal Chowdhury,s/o late B.B. Chowdhury 18/15C, Fern Road, P.S. Gariahat, Kolkata – 19.

  

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant case has been filed by the complainant under section  12 of the C.P Act, 1986 with allegation of deficiency in service against the O.Ps.

In a nutshell the case of the complainant is that the complainant entered into an agreement on 21.02.2011 with the O.Ps for purchasing a flat  measuring about 550 sq.ft area consisting of two bed rooms, one kitchen, and one bath and privy on second floor southern side of the three storied building which is situated within the jurisdiction of this Forum. O.P-2 developer handed over the possession of the flat through possession letter dated 26.3.2011 . But after repeated requests execution and registration of the deed of conveyance in respect of the suit flat was not completed by the O.Ps.

Therefore, the complainant has no other alternative but to file the instant case before this Forum for redressal of his dispute with prayers as mentioned in the petition of complaint.

Even after valid service of summon upon the O.Ps, the O.P-2  did not appear before this Forum and case is heard exparte against the O.P-2.

O.P-1 has appeared before this Forum through Ld. Advocate by filing written version. Ld. Advocate for the O.P-1 has denied all the material allegations against the O.P-1 and inter alia has stated that due to unwillingness and negligence of the developer/O.P-2 , execution and registration of the deed of conveyance is not performed and also in para 7 of the written version O.P-1 stated that they are ready and willing to take part in the registration process and as per the O.P-1 (para V of written version) the original deed of the premises is in the custody of the O.P-2.

After scrutinizing four corners of the case following points are in limelight :

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

                                                            Decision with reasons

Point no.1:-  In the instant case the complainant paid total consideration amount to the O.P-2 and the O.Ps entered into an agreement for delivery of possession of the flat in question and to execute and register the flat in dispute. O.P-2 was empowered by dint of Power of Attorney for developing the premises along with the suit flat. Therefore, as per section 2(1)(d)(ii) of the C.P Act the complainant is a “Consumer” and the O.Ps are service provider as per section 2(1)(o) of the C.P Act and the case is under the purview of the C.P Act.

Thus the point no.1 is discussed and the same is in favour of the complainant.

Point nos. 2 and 3: The point nos. 2 and 3 are discussed altogether for convenience as they are interrelated with each other.

From the record it is crystal clear that the complainant paid full consideration amount to the O.P-2 for purchasing the flat in question and he is now in possession of the same. But execution and registration of the deed of conveyance was not performed till the date of hearing of the instant case.

            It is settled principle of law that both the developer and the land owner are duty bound to execute and register the deed of conveyance of the property in favour of the purchaser/complainant. Therefore, we have no hesitation to hold that the developer,O.P-2 has committed deficiency in service.

O.P-1 in the written version and on the date of hearing of argument submits that O.P-1 is ready and willing to execute and register the deed of conveyance but due to unwillingness and negligence of the O.P-2 the registration is still incomplete. So, it is opined by this Forum that the O.P-1 has not committed any deficiency in service towards the consumer/complainant.

Regarding the prayer for compensation we are of the opinion that the due to negligence of the O.P-2 complainant has to suffer mental agony, harassment as well as  financial loss for enhancement of stamp duty in the meantime ,for which complainant has no other alternative but to bear the excess amount for stamp duty at the time of registration of the flat in question and O.P-2 should compensate the complainant for the aforesaid financial loss. Therefore, considering the four corners of the case this Forum opined that O.P-2 is duty bound to execute and register the deed of conveyance of the suit flat in favour of the complainant. O.P:-1 being the land owner should take part in the aforesaid registration . 

            Thus the point nos. 2 and 3 are discussed in favour of the complainant.

            Hence,

                                                                        ordered

That the case is allowed on contest against O.p-1 and exparte against O.P-2.

The O.Ps are jointly and / or severally directed jointly and/or severally to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant as per agreement .

The O.P-2 is directed to pay compensation of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant.

The O.Ps are directed to comply the above order within 45 days from the date of this order, failing which, both the O.Ps are directed to pay Rs.50/- per diem to the complainant till realization.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                              

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

                                               

ordered

That the case is allowed on contest against O.p-1 and exparte against O.P-2.

The O.Ps are directed jointly and/or severally to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant as per agreement .

The O.P-2 is directed to pay compensation of Rs.50,000/- and litigation cost of Rs.5000/- to the complainant.

The O.Ps are directed to comply the above order within 45 days from the date of this order, failing which, both the O.Ps are directed to pay Rs.50/- per diem to the complainant till realization.

Let a plain copy of this order be served upon the parties free of cost.

 

 

Member                                                           Member