DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _599_ OF ___2014__
DATE OF FILING : _11.12.2014__ DATE OF PASSING JUDGEMENT:28/06/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Paresh Nath Chatterjee, son of late Ahindranath Chatterjee of Boral , P.S Soanrpur, now residing at 19, Subhas Pally, P.S Bansdroni, Kolkata – 84.
-VERSUS -
O.P/O.Ps : 1. Smt. Ratna Roy, wife of late Sujit Roy, Prop. Of M/s Jeet Construction , C-67, Gostatala New Scheme Kamdahari, Garia, P.S Bansdroni, Kolkata – 84.
2. Sri Satish Chandra Sarkar,son of late Ugrakanta Sarkar
3. Sri Tulsi Das (Sil),. Son of late Krishna Mohan Das.
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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 1986 filed by the complainant on the ground that he entered into an agreement for sale for a flat measuring 800 sq.ft on the ground floor at Manasa Apartment at premises no.19,Subhas Pally, Kamdahari at a consideration of Rs.9,30,000/- . O.P-1 Sujit Roy has already taken Rs.6 lacs as a part payment as earnest money on several dates through cash and cheque. It has claimed that in the lifetime of Sujit Roy , the developer, the building was constructed over the land of O.P nos. 2 and 3 and complainant already got possession and exercises his right of ownership mutating his name in the official record of KMC for the said flat being Assessee no.31-111-25-0762-4 . Complainant also paid tax to the KMC as assessee and there is no outstanding dues in respect thereof. Complainant is also enjoying electricity in his name. But registration was not completed due to sad and sudden demise of Sujit Roy, the original developer. Complainant sent lawyer’s letter but the O.P-1 deferred execution and registration matter and sent a letter violating the terms and conditions of the agreement that earnest money paid by the complainant has been forfeited and also asked the complainant to vacate the said flat within the said time stipulated in the said Notice dated 25.8.2014 and complainant also has sent a lawyer’s letter to that effect and thereafter exchange of letter is going on but O.P-1 failed to perform her part of contract. Hence, this case with prayers to execute and register the deed of conveyance in favour of the complainant on acceptance of balance consideration money if found due and also for cost and compensation.
The case is running against O.P-2 . land owner in exparte .
The O.P-1 Smt. Ratna Roy , Proprietor of Jeet Construction, being wife of Sujit Roy ,since deceased, is contesting the case by filing written version and has submitted that this case is baseless ,false ,harassing etc. It has claimed that after the demise of Sujit Roy she is now sole Proprietor carrying on business but she has frankly stated that she has no knowledge whether the land owners are still alive or not and the land owners executed Power of Attorney in favour of Sujit Roy on 9.4.2007 but Sujit Roy died on 26.9.2012. As such, the Power of Attorney already lost its force. It is the positive case of the O.P-1 that as per clause 3 of the said agreement limitation was only for two months from the date of taking possession and the complainant took possession in the month of January 2010 during the lifetime of Sujit Roy and after that Sujit Roy had fallen serious illness since 2010-2012 . During that time this contesting O.P requested the complainant for registration of sale deed and for payment of balance consideration money for emergency treatment of her husband when she went outside the State of West Bengal and wanted to get some as loan also, but complainant remained silent. So, the agreement in invalid and she is ready and willing to pay Rs.6 lacs out of total consideration money of Rs.9,30,000/- to the complainant, since complainant failed to pay the balance consideration money as per agreement . She has also claimed that valuation of the said flat is now Rs.20 lacs. Accordingly, O.P-1 has no deficiency in service. Hence, O.P-1 prays for dismissal of the case and she is entitled to cost against the complainant due to delay and deferring the matter .
Points for decision in this case is whether there is any deficiency in service and unfair trade practice on the part of the O.Ps or not.
Decision with reasons
From the copy of the Partnership Deed executed on 13.8.2012 it appears that Sujit Roy and Ratna Roy were the partners to the extent of 50% share.
At the outset it must be stated that in terms of the agreement for sale made between the parties it appears that only Sujit Roy on behalf of Jeet Construction executed the same with the complainant and it has mentioned in the terms and conditions of the agreement that purchaser has paid Rs.6 lacs and balance Rs.3,30,000/- only will be paid to the developer at the time of execution and registration in favour of the purchaser. The said time limit is two months from the date of agreement for sale after possession is handed over. So, time is the essence of contract. It is admitted that possession was handed over but registration of the deed of conveyance has not yet been made. So, question of two months time ,although essence of contract, does not arise at all. If the registration was executed and even then after lapse of two months the balance payment was not made by the party, then and then O.P-1 being a legal heir of Sujit Roy can claim her claim amount along with can cancel the same. But at this stage, she has stepped into the shoes of her husband Sujit Roy who has executed the agreement for sale. So, she is duty bound to follow the same. Accordingly, O.P-1 has n further case and she is duty bound to put her signature in the deed of conveyance which will be executed by the land owners if available, otherwise machinery of the Forum will be appointed for execution and registration of the deed of conveyance and at that time she will stand as a confirming party , in default she has to pay compensation ,otherwise not.
With that observation, it is
Ordered
That the petition of complaint is allowed on contest against the O.P-1 being legal heir of Sujit Roy and exparte against other O.Ps being land owners.
The O.P nos. 2 and 3 , the land owners, are hereby directed to execute and register the deed of conveyance in favour of the complainant within 30 days from the date of this order, wherein legal heirs of Sujit Roy, O.P-1, will stand as a confirming party , failing which O.P-1 has to pay compensation to the tune of Rs.50,000/- to the complainant.
The complainant is directed to deposit Rs.3,30,000/- through Demand Draft in the name of legal heirs of O.P-1 to the office of this Forum within 15 days from the date of this order, failing which, it will be treated that complainant is not willing to get the deed of conveyance.
It should be mentioned here that O.P-1 has to send a registered letter addressed to the complainant showing her willingness to stand as a confirming party in the deed of conveyance well before completion of one month ,so that it can be safely presumed at the execution stage that O.P-1 was willing or not within the time and the compensation amount will be determined on the basis of the circumstances in light of the observation made in above. Vis versa complainant has to deposit remaining amount of Rs.3,30,000/- through Demand draft to the office of this Forum within the stipulated period mentioned above.
The cost of the suit is assessed at Rs.5000/- to be paid by the O.P nos. 2 and 3 jointly and/or severally within 30 days from the date of this order, since they have not executed and registered the deed of conveyance.
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 the O.P-1 being legal heir of Suit Roy and exparte against other O.Ps being land owners.
The O.P nos. 2 and 3 , the land owners, are hereby directed to execute and register the deed of conveyance in favour of the complainant within 30 days from the date of this order, wherein legal heirs of Sujit Roy, O.P-1, will stand as a confirming party , failing which O.P-1 has to pay compensation to the tune of Rs.50,000/- to the complainant.
The complainant is directed to deposit Rs.3,30,000/- through Demand Draft in the name of legal heirs of O.P-1 to the office of this Forum within 15 days from the date of this order, failing which, it will be treated that complainant is not willing to get the deed of conveyance.
It should be mentioned here that O.P-1 has to send a registered letter addressed to the complainant showing her willingness to stand as a confirming party in the deed of conveyance well before completion of one month ,so that it can be safely presumed at the execution stage that O.P-1 was willing or not within the time and the compensation amount will be determined on the basis of the circumstances in light of the observation made in above. Vis versa complainant has to deposit remaining amount of Rs.3,30,000/- through Demand draft to the office of this Forum within the stipulated period mentioned above.
The cost of the suit is assessed at Rs.5000/- to be paid by the O.P nos. 2 and 3 jointly and/or severally within 30 days from the date of this order, since they have not executed and registered the deed of conveyance.
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
