DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _102_ OF ___2016_
DATE OF FILING : 15.9.2016 DATE OF PASSING JUDGEMENT: 23.10.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Smt Ipseta Maity, wife or Argha Bose at Flat no.D-1, Block-B, of Uma Twins, Tegharia, Raja Rammohan Roy Sarani, Kolkata – 150 and also resident of J-557/A/1, Akshay Kanan Lane, Kolkata – 24.
-VERSUS -
O.P/O.Ps : 1. Smt. Manju Naskar, wife of late Balai Chandra Naskar.
2. Sri Somnath Naskar, son of late Balai Chandra Naskar, both of South Ghoshpara, P.O & P.S Sonarpur, Kolkata – 150, Dist.S-24PGs.
3. Mr. Subrata gupta, son of Susanta Gupta of 1/16A, Prince Gulam Mohammad Shah Road, Ground Floor, Kolkata – 95.
4. M/s Uma Assocaites, of 1/16A, Prince Gulam Mahammad Shah Road, Ground Floor, Kolkata – 95.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that O.P nos. 1 and the 2 are the land owners of all the piece and parcel of landed property lying and situates at Mouza Tegari, Touzi- 194, J.L no. 52, comprising in Khatian no.147, appertaining to Dag no.495 within P.S Sonarpur within the territorial limits of Rajpur Sonarpur Municipality under Ward no.7, being Holding no.2522 by virtue of inheritance.
The O.P nos. 1 and 2 intended to develop their said property by constructing a multi storied building and to fulfill their such intention contacted with the O.P-3 who happens to be the Proprietor of O.P-4, the Builder. Accordingly a development agreement was executed between the land owner and the developer on 5.5.2009, a copy of which is annexed as annexure A. Thereafter, a general Power of Attorney was also executed in favour of the O.P-3 and 4 by the O.P nos. 1 and 2 , which was duly registered. Thereafter O.P-3 obtained sanctioned plan and started multistoried building in the said property.
Complainant in searching for a flat contacted the O.P-3 , who was intending to sell one self contained flat on the ground floor of Block-B flat no.D-1 measuring 710 sq.ft super built up area consisting of two bed rooms, one dining room, one kitchen, two bath cum privy and one balcony in the said building and consideration money of the flat is assessed at Rs.15 lacs ,out of which complainant already paid total Rs.11,80,000/- to the O.P-3 who issued money receipt thereof, which are marked annexure C collectively. The O.p-3on 27.3.2015 handed over possession of the flat to the complainant without completing the outside works i.e common boundary wall, pathway, white washing with colouring etc. Thereafter, complainant on 23.12.2015 requested the Proprietor of Uma Associates to complete the remaining works and to execute and register the sale deed in favour of the complainant ,but to no effect. Thereafter, complainant sent Rs.3 lacs to O.p-3 but O.P-3 did not receive the same. It has claimed that complainant is staying with her handicapped (blind) husband in great troubles, mental tension, agony and anxiety for not executing the sale deed in her favour and also not completing other works in the surrounding area for which the complainant is entitled to adequate compensation of Rs.50,000/- and cost etc. Hence, this case praying for execution and registration of the sale deed, compensation of Rs.50,000/- , litigation cost etc.
The O.P nos. 1 and 2 , the land owners, contested the case by filing written version and has denied all the allegations leveled against the landlords . They also claimed that case is not maintainable under the Law and denied and disputed each and every allegations against the contesting O.Ps. It has claimed that O.P nos. 3 and 4 did not deliver possession of the owners’ allocation in the said building violating the said development agreement. It has also claimed that developers executed several deeds violating the terms and conditions of the development agreement in favour of the intending purchasers without delivering the possession of the owner’s allocation to the owners and accordingly the owners O.P nos. 1 and 2 already cancelled the development agreement and general power of attorney and it was informed to the O.P-3 on 25.11.2014. Thereafter, O.P nos. 1 and 2 took possession of the schedule A property and three numbers of flats out of 12 numbers of the flat in the building. Accordingly, O.P nos. 1 and 2 pray for dismissal of the case.
The O.P nos. 3 and 4 did not contest the case, for which the case is running in exparte against them.
Points for decision in this case is whether the O.Ps acted any deficiency in service and/or unfair trade practice towards the complainant or not.
Decision with reasons
Admittedly the O.P nos. 1 and 2 are the owners of the property in dispute and they have also made the Development Agreement and power of attorney in favour of the O.P-3 ,the Proprietor of O.P-4 and that is why being attracted with the development agreement and the power of attorney made by the land owners in favour of the developer,O.P-3, complainant who was looking for a flat to stay peacefully with her blind husband entered into an agreement for sale on 20.11.2014 and paid Rs.11,80,000/-on different occasions out of Rs.15 lacs and got possession of the said flat from O.P-3 since the said allocation was developer’s allocation (O.P-3).
But in the midst the O.P-3 failed to comply the terms and conditions of the development agreement touching the interest of the land owners who are O.P nos. 1 and 2 ,that is why controversy started in between the O.P nos.1,2 and O.P-3 and innocent intending purchaser is unnecessary getting trouble for not getting the registered deed of conveyance and that is why some of the works i.e common boundary wall, pathway, whitewashing and colouring in the outside wall have not yet been completed by the developer since it reveals that land owners O.P nos. 1 and 2 already cancelled the power of attorney and they have taken possession of the three flats in block-B of the building. The possession of the land owners if it is permitted within the purview of the development agreement, then definitely they will get it and none will disturb. But if it is not within the purview of the development agreement, then law will take its own course and it will be not taken into consideration in this case, as land owners have not yet filed any separate case to redress their dispute against the developers.
Be that as it may, keeping the land owners’ possession, our consideration is that the intending purchaser who have purchased the flat after paying almost entire money to the developer and got possession of the developer’s allocation will get proper deed of conveyance which will be executed by the land owners and the developer will stand as a confirming party in the said deed and if the land owners failed to execute the same, then machinery of the Forum will be appointed to execute and register the deed of conveyance in due process of law. But in no circumstances the possession of the complainant can be said illegal possession of the complainant ,because complainant entered the flat on the strength of the agreement for sale which was made on the basis of the development agreement in between the O.Ps i.e land owners and the developer. If the developer keeps the complainant in dark the subsequent circumstances with the landlords , in that event complainant should not suffer, that is why, at this stage we find that O.P-3 made deficiency in service by not executing and registering the deed of conveyance and not performing the remaining works as stated above. If the land owners failed to execute and register the deed of conveyance, then they will be the members of deficiency of serviced ,not before that.
With that observation, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest against O.P nos. 1 and 2 and in exparte against O.P nos. 3 and 4 .
Firstly, it is declared that the complainant’s possession is lawful in the flat in dispute, that is why all the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant ,and in that event complainant will bear all the revenues and stamp duty , within 30 days from the date of this order, failing which Ld. Advocate Priyanka Das will be appointed as an Advocate Commissioner to execute and register the deed of conveyance as a machinery of the Forum .
The O.P-3 is further directed to complete all the incomplete works i.e common boundary wall, pathway, white washing with colouring etc. within 30 days from the date of this order and if the O.p-3 is unable to complete the incomplete works within the stipulated period, then the remaining consideration amount i.e Rs.3,20,000/- will not require to be paid to the O.P-3 and complainant will pay proportionate share for the above mentioned common works as and when it will be completed by the other flat owners from their fund.
The O.P-3 is further directed to pay compensation ot the tune of Rs.20,000/- and also to pay litigation cost of Rs.5000/- to the complainant within 30 days from the date of this order.
If the O.P nos. 1 and 2 ,land owners, failed to execute and register the deed of conveyance within the stipulated period, then they are also liable to pay compensation to the tune of Rs.10,000/- each to the complainant, but at this stage no compensation will be borne by the land owners, O.P nos. 1 and 2.
If all the O.Ps failed to act accordingly within the stipulated period, then the complainant is at liberty to execute the order through this Forum.
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 application under section 12 of the C.P Act, 1986 is allowed on contest against O.P nos. 1 and 2 and in exparte against O.P nos. 3 and 4 .
Firstly, it is declared that the complainant’s possession is lawful in the flat in dispute, that is why all the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant ,and in that event complainant will bear all the revenues and stamp duty , within 30 days from the date of this order, failing which Ld. Advocate Priyanka Das will be appointed as an Advocate Commissioner to execute and register the deed of conveyance as a machinery of the Forum .
The O.P-3 is further directed to complete all the incomplete works i.e common boundary wall, pathway, white washing with colouring etc. within 30 days from the date of this order and if the O.p-3 is unable to complete the incomplete works within the stipulated period, then the remaining consideration amount i.e Rs.3,20,000/- will not require to be paid to the O.P-3 and complainant will pay proportionate share for the above mentioned common works as and when it will be completed by the other flat owners from their fund.
The O.P-3 is further directed to pay compensation ot the tune of Rs.20,000/- and also to pay litigation cost of Rs.5000/- to the complainant within 30 days from the date of this order.
If the O.P nos. 1 and 2 ,land owners, failed to execute and register the deed of conveyance within the stipulated period, then they are also liable to pay compensation to the tune of Rs.10,000/- each to the complainant, but at this stage no compensation will be borne by the land owners, O.P nos. 1 and 2.
If all the O.Ps failed to act accordingly within the stipulated period, then the complainant is at liberty to execute the order through this Forum.
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
