West Bengal

South 24 Parganas

CC/120/2016

Smt.Urmila Upadhyay, Wife of Shri Aditya Nath Upadhyay. - Complainant(s)

Versus

1. Sri Alok Barman, Managing Director, of M/S. Joyotu Land Development Pvt. Ltd. - Opp.Party(s)

Sri Ashok Kumar Singh.

08 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _120_ OF ___2016_

 

DATE OF FILING : 11.11.2016                   DATE OF PASSING JUDGEMENT:  08.03.2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :    Smt. Urmila Upadhyay,wife of Shri Aditya Nath Upadhyay of 18/5, S.N. Bagchi Road, P.O and P.S Berhampore, District-Murshidabad pin-732101.

-VERSUS  -

 

O.P/O.Ps                            :     1. Sri Alok Barman, Managing Director of M/s Joyotu Land Development Private Limited, at 15, Parasar Road ,1^st floor, near Lake Market, Kolkata – 29, P.S. Lake.

                                               2.     Sri Hemanta Nandi, Director of M/s Joyotu Land Development Private Limited of 35/1, Panchanantala Lane, P.S. Behala, P.O Behala, Kolkata – 34.

                                                3.     M/s Joyotu Land Development Private Limited, having its office at 35/1, Panchanantala Lane, P.S. Behala, P.O Behala, Kolkata – 34.    

__________________________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that she booked two plots as mentioned in schedule B of the complaint case being attracted with the advertisement of such project namely “Falguni Abasan”  through the brochure and that is why on 14.9.2002 filled up the booking form and paid Rs.25,800/- in terms of the booking form  and thereafter paid the entire consideration money  for the plot nos. A-308 ,309 of Mouza Amgachia, Khatian no.1315 ,838 measuring 4368 sq.ft approx under Bishnupur P.S in the District of South 24 Parganas  having a price of Rs.2,60,867/-  in scheme IV Type A . The mode of  payment is described in para 6 of the complainant wherein we find that most of the payment through cheque and last payment was in cash. Thus total consideration of Rs.2,60,867/- has already been paid by the complainant to fulfill her dream to get the plots in Falguni Abasan project which was promoted and developed by Joyotu Land Development Private Limited. Thereafter the agreement for sale was executed on 22th July, 2003 which is mentioned in schedule B of the property. It has further stated that  respondent asked to pay fu4rther remaining amount to the tune of Rs.2891/- which was paid by the complainant on 5.1.2012  according to the requests of the respondent for registration and delivery of the said schedule plots of land with all facilities as described in schedule C of the complaint case in terms of the agreement for sale dated 22.7.2003.  But inspite of several requests the O.Ps did not pay any heed to it and complainant compels to serve legal notice through ld. Advocate on 4^th day of January 2016 for compliance of the agreement for sale dated 22.7.2013 but the O.P as usual to their unfairness did not comply the same. Accordingly, complainant filed this case with certain prayers mentioned in para 25 of the complaint .

After admission of the case summon were served and in terms of the track report  it appears that inspite of service against O.P-1 vide speed post no. EW440469521 IN  and the report is “Intimation serve d” and delivery attempted , unclaimed.  In respect of O.P-2 the speed post no.EW 44046945 IN  the report is “Item delivered to Hemanta Nandi, O.P-2. Another track report in respect of O.P-3 vide Speed Post no.EW 440469760IN the report is “Item delivered”. Thus this Bench considered that S.R have already been delivered to the O.Ps and inspite of that the O.Ps did not turn up which is a good service and case is proceedings against the O.Ps in exparte.

Points for decision in this case is whether  the O.Ps have acted deficiency in service or unfair trade practice.

                                                      Decision with reasons

At the very outset  it  must be stated that all the summons were served upon the O.P nos.1,2 and 3. But thing is not out of record that in the cause title it has mentioned that the O.P-3 is M/s Joyotu Land Development Private Limited and it appears from the tract report that it was delivered to O.P-3.So, a question may arise whether Joyotu Land Development Private Limited  and Jayatee Land Development are same and identical or not, for which we turn our eyes on the address mentioned in the postal receipt, wherefrom it derives that 35/1, Panchanantala Lane, Kolkata – 34 is mentioned i.e. the address is totally identical. So, mere spelling mistake should not play in the mind of the Bench , particularly when the Bench is functioning to redress the dispute of the consumer at large, otherwise, in passing the Act by the Legislature will be highly frustrated by the hands of this type of unruly promoter/O.Ps who are aware about the service of summon and case is pending but did not come before the Court. This is a glaring example of unfair trade practice.

Be that as it may,  if we consider that the spelling mistake of the name ,although address is same, the service was not properly made against O.P-3, in that event what prompted the O.P nos. 1 and 2 not to appear before this bench?

The conduct of the O.P nos. 1 and 2 clearly demonstrates that they are in the same boat of deficiency of service that is why they did not travel to this bench for filing their appearance and written version challenging the allegation leveled against them  since they have no leg to stand upon , particularly when they cannot deny acceptance of money by showing misleading advertisement through their brochure. This unfairness should be stopped ,otherwise common people at large will suffer by the hands of unruly O.Ps . We are aware that some one is watching  the case and soon after passing the judgment they may ventilate that ground before the Hon’ble State Commission that exparte order was passed not giving opportunity to them. In that score, our observation is that it was the direction in the summon that they have to appear before this Bench on the date fixed ,otherwise the case will be heard in exparte. So, they are aware regarding the force of the summon issued from the judicial bench in view of Section 13(5) of the C.P Act, 1986  and we hope and believe that exparte order is executable which is a decree ,if not otherwise barred in the eye of Law. So, there is no reason to throw out the exparte order if the O.P did not satisfy that the summon was not served. All the O.Ps are in the same boat. So, they cannot claim that the summon was not served. So, our considered view is that looking the focus to redress the dispute of the common people at large the O.ps intentionally did not appear and they have acted deficiency of service and unfair trade practice . It is well known to us that strictly Evidence Act will not be followed in the C.P Act, 1986  in deciding the consumer complaint in the summary trial. It is the mandate or direction of the superior Court. So, liberal attitude should be taken ,otherwise consumer cannot stand on his leg facing this type of unruly O.Ps who have no faith upon the system at large. So, considering all aspects and considering the money receipts , the agreement for sale, connected documents as relied b y the complainant and which have not been challenged by any of the O.Ps, it is

Ordered

The complaint case is allowed in exparte against the O.Ps with cost.

The O.Ps are jointly and/or severally directed to deliver physical possession of the schedule B  with all the facilities of Schedule C in terms of the agreement for sale dt. 22.7.2003 to the complainant within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to execute and register the deed of conveyance in favour of the complainant in respect of Schedule B along with schedule C in terms of the agreement for sale dated 22.7.2003  within 7 days after the date of delivery of physical possession  as stated above.

The O.Ps are hereby permanently restrained not to transfer the said property mentioned in schedule B and Schedule C of the agreement for sale dated 22.7.2003  to any other parties except the complainant.

If the O.Ps jointly and/or severally filed to delivery physical possession of the property mentioned above within the stipulated date as well as execute and register the deed of conveyance in favour of the complainant, then O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs. 1 lac for the suffering and metal agony suffered by the complainant and litigation cost of Rs.10,000/- to the complainant to be paid within 30 days from the date of default.

The other prayers of the complainant are refused by this Bench in exparte.

Complainant is at liberty to execute the order through this Bench after the stipulated period is over. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

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

The complaint case is allowed in exparte against the O.Ps with cost.

The O.Ps are jointly and/or severally directed to deliver physical possession of the schedule B  with all the facilities of Schedule C in terms of the agreement for sale dt. 22.7.2003 to the complainant within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to execute and register the deed of conveyance in favour of the complainant in respect of Schedule B along with schedule C in terms of the agreement for sale dated 22.7.2003  within 7 days after the date of delivery of physical possession  as stated above.

The O.Ps are hereby permanently restrained not to transfer the said property mentioned in schedule B and Schedule C of the agreement for sale dated 22.7.2003  to any other parties except the complainant.

If the O.Ps jointly and/or severally filed to delivery physical possession of the property mentioned above within the stipulated date as well as execute and register the deed of conveyance in favour of the complainant, then O.Ps are jointly and/or severally directed to pay compensation to the tune of Rs. 1 lac for the suffering and metal agony suffered by the complainant and litigation cost of Rs.10,000/- to the complainant to be paid within 30 days from the date of default.

The other prayers of the complainant are refused by this Bench in exparte.

Complainant is at liberty to execute the order through this Bench after the stipulated period is over. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                                                                           President