Order No:21
Complainant files hazira. The case is taken up for exparte hearing. Heard argument of Ld. Lawyer of the complainant in full. Put up after recess for delivery of final order.
Later,
The complaints are present today. Final order is ready which contains 6 pages. The order copy is sealed in envelop and it is declared in open Commission.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed Ex-parte against the opposite party no. 1 with a cost of 20,000=00 (twenty thousand) only.
The opposite party no 1 is liable to pay Rs. 1, 00,000=00 (Rs. one lakh) only as compensation amount for her deficiency in service occurred under Section 2(g, o) and unfair trade practice occurred under Section 2[r] of the Consumer Protection Act 1986
Opposite party no 1 is directed to hand over the said registered flat peacefully and to give actual as well as physical possession of the booked and registered flat peacefully in favour of the complainants within 45 days from the date of issuing this order failing which the O. P. No 1 shall pay @ 8% p.a. simple interest upon the compensation amount from the date of registration on 11/3/2019 till the realization.
The O. Ps. are directed to co-operate and provide the Completion Certificate to the Complainants within 2 months from the date of issuing this order.
The complainants are given liberty to file a Execution Case against O. Ps., in case of non-compliance of this Order after 60 days from the date of issuing this Order.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700144
C.C.NO. 40 of 2020
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
05/03/2020 22/12/2020 03/06/2022
President :- Hon’ble Shri Ashoke Kumar Pal
Member - : Hon’ble Shri Jagadish Chandra Barman
Member :- Hon’ble Smt. Sangita Paul
Complainant- 1] Sri Sheo Mohan Tiwari
Son of Shri Ram Chandra Tiwari
K-3-29/211, Flat No-2 c, 2nd floor.
Benepukur. P. O.- Gobindapur[m]]
P. S.-Maheshtala, Dist. South 24 Parganas
Kolkata-700141
2] Smt. Momta Tiwari,
Wife of Sri Sheo Mohan Tiwari
K-3-29/211, Flat No-2 c, 2nd floor.
Benepukur. P. O.- Gobindapur[m]
P. S.-Maheshtala, Dist. South 24 Parganas
Kolkata-700141.
Versus
Opposite party- 1) Smt. Sunita Ghosh
Wife of Sri Gopal Manoranjan Ghosh
Sapa Raipur [Rabindra Pally]
P. O.- Santoshpur [M]
P. S.- Maheshtala
Dist.- South 24 Parganas
Kolkata-700143
Name of the advocate of the complainant- Sri Subhahis Mondal
Tumpa Mondal
Name of the advocate of O.Ps.- Pradip Mondal
___________________________________________________________________
FINAL ORDER/ JUDGEMENT
Sri Jagadish Chandra Barman, Hon’ble MEMBER
The facts leading to the filing of the instant case by the complainants may be epitomized as follows:
This is a complaint case under Section 12 & 13 of the Consumer Protection Act 1986. The complainants, Sri Sheo Mohan Tiwari and her wife Smt. Momta Tiwari both were attracted and hence took decision to purchase a flat in the “ Siddhibinayak Apartment” at Mouza Saparaipur, J.L. No-12, R. S. No-353,Pargana Balia, Touzi no-35, comprised in R. S. Dag no-359, Hal L. R. Dag no-436 under L. R. Khatian no.- 1156/1157/1158 within the limits of the Maheshtala Municipality, Ward no-13, Chitaranjan Park, Holding no-12-298/A/1/New Sibarampur Road, Post- Sarkarpool, under police station- Maheshtala, Kolkata- 700143, in the district 24 Parganas [South],West Bengal. Total value of the concerned flat was settled Rs. 9,87,000=00 only.
Thereafter, the complainants paid booking money of Rs. 6,60,000=00 only to the opposite parties. As per statement, their booked flat is located at -1/B, having a super built up area of 707 Sq. feet consisting of 2 bed rooms, one hall room, one kitchen and one common toilet -cum- bath and privy [tiles floor] in the 1st floor of the 4 storied building at Chittaranjan Para, Saparaipur, P.O.- Sarkarpool, P.S.- Maheshtala, Dist.- 24 Parganas, Kolkata700143.
After making payment of booking money, an Agreement for Sale was signed on 19/2/2018 amongst -
1] the Sri Ashis Mondal, Barun Mondal, Tarun Mondal residing at Saraipur, Raipara, P.O.- Santoshpur[m], P. S.- Maheshtla, Kolkata-700142, Dist.- 24 Parganas South hereinafter VENDOR
2] Smt. Sunita Ghosh wife of Sri Gopal Manoranjan Ghosh, residing at Saparaipur [Rabindrapally], P. O.- Santoshpur, P. S.- Maheshtla,Kolkata-700142 hereinafter the DEVELOPER as per constituted power of Attorney and ;
3] M/S Siddhibinayak Construction, a proprietorship firm, having its office at Saparaipur [Rabindrapally], P. O.- Santoshpur, P. S.- Maheshtla,Kolkata-700142 .
And
1] Sri Sheo Mohan Tiwari, Son of Shri Ram Chandra Tiwari, K-3-29/211, Flat No-2 C, 2nd floor. Benepukur. P. O.- Gobindapur[m], P. S.-Maheshtala, Dist. South 24 Parganas, Kolkata-700141. 2] Smt. Momta Tiwari Wife of Sri Sheo Mohan TiwarI, K-3-29/211, Flat No-2 c, 2nd floor, Benepukur. P. O.- Gobindapur[m]. P. S.-Maheshtala, Dist. South 24 Parganas. Kolkata-700141 hreinafter PURCHASHER.
As per Agreement for Sale mentioned in clause 1[iii], the O. Ps. should have to hand over and execute the Deed of Conveyance of the said flat within one month from the date of agreement signed on 19/2/2018.
As per terms and condition mentioned in para 14 of the Agreement for Sale,” the Vendor shall hand over the vacant possession of the said flat to the purchaser on full payment of the consideration money and register the same”.
The complainants without getting possession and registration of the concerned flat within stipulated time of one month after the date of 19/2/2018 [Agreement for Sale], became worried and an advocate, on behalf of complainants, Tumpa Mondal, wrote a letter on 4.9.2018 and requested the O.Ps. to complete the said flat and hand over to the complainants.
As per Agreement for Sale, the complainants paid Rs.3, 27,000=00 only on 11.03.2019. Hence, full payment of Rs. 9, 87,000/- only was completed on 11.3.2019. The payment particulars are mentioned in page 21 of the ‘ Deed of Conveyance’.
Accordingly, Registration of Deed of Conveyance was signed on 11th March 2019 between the O.Ps. and the Complainants before the A.D.S.R., Behala, South 24 Parganas .
Thereafter, the Opposite parties namely Smt. Sunita Ghosh, proprietor, of M/S Siddhibinayak Construction, issued a letter of possession to the complainants in which Smt. Sunita Ghosh instructed to take possession within October 2019.
Date of writing the possession letter is not mentioned in the letter and there is no prove of receiving the letter by the complainants.
As per statement, the complainants did not get actual possession of the said flat even after completion of the Deed of Conveyance done on 11/3/2019, and they sent a demand notice through an advocate, Sri Subhashis Mondal. The advocate wrote on 24/2/2020 to the opposite parties and requested them to hand over the registered flat to the complainants within 7 days from the date of receiving the letter.
It is pertinent to mention that the O.Ps. did not sent any reply to the letter of the advocate and did not pay any heed to the anxiety, tension of the complainants. The O. Ps. also did not hand over actually the said flat to the complainants.
Finding no other alternative, the Complainants filed this complaint petition before this Ld. Commission on 05/03/2020 to get reliefs.
Accordingly, show cause notices were sent to the opposite parties and as per postal track reports, show cause notices were served satisfactorily on 9/01/2021.
After elapsing 65 days, on 15/3/2021, the O.P.No-1 appeared before the Ld. Commission with Vakalatnama. It was heard and considered due to pandemic situation and directed her to file written version on 22/4/2021, or 17/6/2021, or 26/8/2021 and 18/11/2021; But the O.P.1 neither appeared nor filed W. V.. At last this instant case was declared ‘Ex-parte’ on 18/11/2021.
The complainants have sought the following relieves in their petition:-
1] To issue an order directing the O. P. No 1 to deliver peaceful possession of the flat booked and registered, in the 1st floor of approximately 707 sq. Feet areas;
2] To issue an order directing the O. P. No 1 to pay compensation of Rs. 2, 00,000/- only for harassment, mental agony, anxiety etc.
3] To issue any other order upon the O. P. No 1 as the Ld. Commission may deem fit.
Upon the averments of the complaint petition, the following points are formulated:-
POINTS FOR DETERMINATION
1] Are the complainants consumers?
2] Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainant?
3] Are the complainants entitled to get relief /relieves as prayed for?
EVIDENCES OF THE COMPLAINANT/BNA
The complainant filed evidences on affidavit on 17/01/2021 and Brief notes of Argument on 22/4/2022.
DECISIONS WITH REASONS.
Point no. 1, 2, & 3.
As per terms and conditions of the Agreement for Sale signed on 19/2/2018, the complainants paid total amount Rs. 9,87,000=00 only by cash and cheques of the Central Bank of India, New Market Branch, Kolkata-87. Particulars of payment are available in the page 21 of the ‘Deed of Conveyance’ signed on 11/3/2019 between the O.Ps. and the Complainants.
Therefore, there is no doubt that the complainants are Consumers as defined under Section 2 (d) of the Consumer Protection Act 1986.
In relation to Point No. 2 ‘’Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainants?”,and to Point No. 3, “ Are the complainants entitled to get relief /relieves as prayed for? ”- it is relevant to say that the opposite party no 1 did not pay any heed to the concern, anxiety, harassment of the complainants. Even after receiving the demand notice from the petitioner through the ld. Advocate, the O. P.no-1, did not respond. O. P. No 1 did neither hand over the said registered flat nor actually given peaceful possession to the complainants. Hence, it is clear to us that O. Ps. were only interested to receive the money in time. In this instant case, the complainants paid full consideration amount of Rs. 9,87,000.00 only. But the O. Ps. only executed the Deed of Conveyance in favour of the complainants.
Therefore, deficiency of service under Section 2(g, o) and unfair trade practice under Section 2[r] of the Consumer Protection Act 1986 have been committed by the Opposite Party no-1. Hence, the O. P. No-1 is liable to be penalized to the tune of Rs.20, 000=00 only as litigation cost and Rs. 1, 00,000=00 only as compensation amount to be paid to the complainants within 45 days from the date of issuing this order.
Opposite party no 1 is liable to hand over peaceful vacant possession of the booked and registered flat in favour of the complainants within 45 days from the date issuing this order failing which the O. P. No 1 shall pay @ 8% p.a. simple interest upon the compensation amount from the date of 11/3/2019 till the realization.
As a result, the complaint case succeeds.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed Ex-parte against the opposite party no. 1 with a cost of 20,000=00 (twenty thousand) only.
The opposite party no 1 is liable to pay Rs. 1, 00,000=00 (Rs. one lakh) only as compensation amount for her deficiency in service occurred under Section 2(g, o) and unfair trade practice occurred under Section 2[r] of the Consumer Protection Act 1986
Opposite party no 1 is directed to hand over the said registered flat peacefully and to give actual as well as physical possession of the booked and registered flat peacefully in favour of the complainants within 45 days from the date of issuing this order failing which the O. P. No 1 shall pay @ 8% p.a. simple interest upon the compensation amount from the date of registration on 11/3/2019 till the realization.
The O. Ps. are directed to co-operate and provide the Completion Certificate to the Complainants within 2 months from the date of issuing this order.
The complainants are given liberty to file a Execution Case against O. Ps., in case of non-compliance of this Order after 60 days from the date of issuing this Order.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
Dictated and Corrected by me.
( Jagadish Chandra Barman)
(MEMBER)
