DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _306_ OF ___2015_
DATE OF FILING : 30.6.2015 DATE OF PASSING JUDGEMENT:19.01.2018
Present : President :
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT : Sri Amal Lal Dutta, s/o late Bishnu Pada Dutta of Flat no.C, Eastern Side, 1st Floor, 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60.
-VERSUS -
O.P/O.Ps : 1. Smt. Shipra Sinha, w/o late Manab Sinha of 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60.
2. Sri Koustav Sinha , s/o late Manab Sinha of 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60.
3. Miss Koyna Sinha, minor daughter of late Manab Sinha represented through her natural guardian mother Smt. Sipra Sinha, of 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60.
4. Sri Kuntal Sinha, s/o late Kamakshya Charan Sinha of 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60.
5. Sri Kunal Sinha, s/o late Kamakshya Charan Sinha of Flat no.F, 2nd floor, 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 60
6. Smt. Arati Sinha, w/o Ramen Chandra Sinha of 11, Mahendra Banerjee Road, Jagarani More, P.O & P.S Parnasree, Kolkata – 70060.
J U D G E M E N T
Jhunu Prasad, Lady Member
The door of this Forum has been knocked by the complainant, for redressal arising out of the consumer dispute as per the Consumer Protection Act, 1986.
In diminutive, the fact stated in the complaint, is that the complainant entered in to an agreement on 25.08.2003 with one Manab sinha (since deceased) the predecessor of the O.P.NO.1 to 3, one of the joint owner cum developer and also the constituted attorney of the O.P. No.4 & 5 to purchase self contained flat measuring more or less 640 sq. ft. super built up on the 1st floor being flat No. C, eastern side of the proposed building for total consideration of Rs. 5,12,000/- in terms of the said agreement.
As per “Agreement for Sale”, the complainant paid total consideration amount and also paid excess amount of Rs. 80,000/- to the developer.
One Manab sinha (since deceased) the predecessor of the opposite party No.1 to 3, developer and Opposite Party No. 4 & 5 also the joint land owners of the premises of the land property measuring about 2 cottahas 10 chittacks 26.83 sq.ft. more or less situated and lying at KMC premises No. 36, Mahendra Banerjee Road, P.S. Parnashree, Kolkata-700060, District south 24 Parganas with an intention to develop the said property by raising construction thereon, entered in to a development agreement in the year 2003 with the predecessor of the Opposite Party No.1 to 3 said Manab sinha (since deceased) with certain terms and conditions as written therein.
Thereafter, the Opposite party No. 4 & 5 as joint owners also executed a registered general power of attorney in favour of said Manab Sinha(since deceased) the predecessor of the Opposite party NO. 1 to 3 being the developer herein for proper implementation of the said building project with flat therein on 19.11.2003 .
Thereafter the completion of the said flat the predecessor of the O.P. No.1 to 3, Manab Saha (since deceased) handed over the khass possession of the said flat to the complainant on 22.04.2005 and assured that the deed of conveyance will be registered in favour of the complainant immediately.
Thereafter the complainant several times contacted with the said predecessor of the O.P No. 1 to 3 to execute and to register the deed of conveyance in respect of the said flat in favour of the complainant, but he did not do anything.
Thereafter the said developer, Manab Sinha died on 16.03.2010 without performing his contractual obligation.
Having no other alternative, the complainant sent a legal notice dated 15.06.2015 to the OP.No.1 to 5 to settle the legitimate claims of the complainant. In spite receipt of the legal notices the Opposite Parties did not bother to execute and register the deed of conveyance in favour of the complainant.
Thereafter the complainant being deprived by the Opposite Parties filed this instant complaint for getting relief as prayed for.
Issued notices to the Opposite Parties.
After receipt of the notices the Opposite Party 1 to 4 and 6 did not appear to controvert and to refute the case by filing written version .
So, the case is heard ex-party against the O.P.No.1 to 4 and 6.
The O.P. No. 5 appeared to convert the case by way of filing written version.
In written version, the O.P.No. 5 stated that the O.P. No. 5 was willing to execute the sale deed in favour of the complainant, but due to non co-operation to the other O.Ps, it could not be done.
The O.P. No. 5 also stated that being a co-owner it was decided by and between the O.P. No.4, 5 and late Manab Sinha (since deceased) that said Manab Sinha shall construct a multi storied building over 11, Mahendra Banerjee Road, Jagarani More, P.O. & P. S.- Parnashree, Kolkata -700060 at his own cost and endeavor and the O.P. No. 4 & 5 will get their owner’s allocation. The O.P.No. 4 & 5 had executed registered one power of attorney in favour of the Manab Sinha (since deceased) dated 19.11.2003 to sale the said multi storied building.
In written version the O.P. No. 5 also stated that ‘Agreement for Sale’ was made by and between the complainant and Manab Sinha (since deaeased) who was the developer of the aforesaid building, and as per ‘Agreement for Sale’ Manab Sinha (since deceased) issued possession letter in favour of the complainant.
In written version the O.P.No. 5 has categorically stated that he is not liable to comply the other prayer of the complaint made by the complainant, he is ready and willing to sign the Deed of conveyance.
In written version the O.P. No.5 also stated that the allegations made by the complainant regarding the deficiency of service against the O.P. No.5 is mala fide, false and concocted, therefore, prayed to dismissed the complaint.
The following points for decision have been framed:-
- Is the complaints a consumer?
- Is the O.Ps committed any deficiency in service?
- What relief the complainant is entitled to get.
Reasoned Decisions
The main contention of the complainant is that the complainant entered in to an “Agreement for Sale” with the predecessor of O.P. No 1 to 3 and the O.P. No 4 and 5.In spite of entire consideration amount paid to the O.P developer, never intended to complete their part of performance, according to the said agreement and to execute and register the deed of conveyance regarding the case flat.
Only the O.P.No.5 appeared and agreed to sign the “Deed of conveyance”.
The complainant already got possession on 22.04.2015. Other OPs never appeared to contest the case by filing written version or raised objection in the matter of execution and registration of “Deed of Conveyance” in favour of the complainant, in respect of the said flat in question.
On overall evaluation of the argument made before us by the Ld. Advocate of the complainant and the O.P.No. 4 and the material evidences on record, it is evident that Manab Sinha (since deceased) and O.P No.4 and 5 are the joint owners. Manab Sinha (since deceased) who was the developer of the land property as mentioned in the complaint measuring about 2 cottahas 10 chittacks 26.83sq.ft. more or less situated and lying at KMC premises No. 36, Mahendra Banerjee Road, P.S. Parnashree, Kolkata-700060, District south 24 Parganas. Accordingly all Opposite Parties are joint owner of the aforesaid land property.
Fact remains that the O.P Manab Sinha (since deceased) handed over the said flat to the complainant on 22.04.2005, but did not perform the part obligations to execute and register of the said flat in question.
Fact also remains that, after delivered the said possession the O.P, developer Manab Sinha died on 16.3.2016 without his contractual obligations.
The complainant thereafter repeatedly requested the legal heirs of the O.P. developer, late Manab Sinha and other O.Ps, who are the joint owners of the aforesaid land property but, the O.Ps never intended to execute the registration of the said flat.
So, it is the obligatory on the part of the legal heirs of the O.Ps Developer/joint owner to execute and register the Deed of conveyance. For not performing the said part of obligation by the O.P developer and also by O.Ps Joint owners which amounts to deficiency and negligence in rendering service u/s 2(i)(g) of C.P. Act 1986.
Moreover, all the allegations made by the complainant are unchallenged, though the Opposite Party No. 1 to 4 and 6 got chance to contest and to refute by filing the written version before the Forum, but those O.Ps Deliberately failed to do the same. Thus, there are no reasons to disbelieve to unchallenged testimony of the complainant.
But from the record and documents, it is revealed that the O.P No 6 is enjoying the other portion of the land which was made an oral and amicably partition made by and between the Minati Sinha and Arati Sinha. Arati Sinha is not necessary party in this case.
Therefore, from the discussion made above, the forum holds that the O.P No. 6 is not liable to execute and register the Deed of Conveyance.
In light of the above analysis, we are inclined to hold that the complainant has successfully proved his case and is entitled to get the relief as prayed for from the Opposite Party No.1 to 5 and consequently the points for determination are decided in affirmative. Thus the complainant is a Consumer u/s 2(i)(d) of C.P. Act 1986.
In short, the complainant deserves success.
Hence,
It is
ORDERED
That the case be and the same is allowed ex-parte against the Opposite Party No. 1 to 4 and 6 with cost of Rs 10,000/-Payable by both Opposite Parties to the complainant.
That the O.Ps are jointly and severally directed to execute and register the “Deed Of Conveyance” in favour of the complainant in respect of the flat as mentioned in the complaint within one month from this order.
That the O.Ps are also jointly and severally directed to pay of Rs.50,000/- as compensation and Rs. 10,000/- as litigation cost to the complainant within one month from the date of this order, failing which, the said amounts shall carry on interest @9% p.a. from the date of default till realization.
Let a plain copy of this order be supplied to the parties free of cost when applied for.
Member Presiding Member
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the case be and the same is allowed ex-parte against the Opposite Party No. 1 to 4 and 6 with cost of Rs 10,000/-Payable by both Opposite Parties to the complainant.
That the O.Ps are jointly and severally directed to execute and register the “Deed Of Conveyance” in favour of the complainant in respect of the flat as mentioned in the complaint within one month from this order.
That the O.Ps are also jointly and severally directed to pay of Rs.50,000/- as compensation and Rs. 10,000/- as litigation cost to the complainant within one month from the date of this order, failing which, the said amounts shall carry on interest @9% p.a. from the date of default till realization.
Let a plain copy of this order be supplied to the parties free of cost when applied for.
Member Presiding Member
