21....16.03.2021....

Today is fixed for delivery of judgement/final order.

Final order containing 6 pages is ready. It is sealed, signed and delivered in open Forum/Commission.

It is ordered that,

That the case be and the same is hereby allowed exparte against  the O.P. No. 1 with cost of Rs.5,000/- and dismissed on contest against the O.P. No. 5 without cost  and dismissed exparte against the O.P. No. 2, 3, 4 without cost.  The O.P. No. 1 is directed to execute and register the Sale Deed in favour of the complainants in respect of the disputed flat  within sixty days from the date of  this order on receipt Rs.2,17,000/- with simple interest @ 7% p.a.  w.e.f. 17.02.2018 till payment .  The complainants are directed to pay Rs.2,17,000/- with simple interest @ 7% p.a.  w.e.f. 17.02.2018 till payment to the O.P. No.1 on the date of registration within a period of sixty days from the date of the Final order for registration and execution of the Sale Deed.   The O.P. No. 1 is also directed to pay Rs. 5,000/- as litigation cost to the complainants by 60 (sixty) days from the  date of this order.

Let copies of the order be handed over to the respective parties / their representatives / agents as per rules.The final order is also be available in the following websitewww.confonet.nic.in.

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

SOUTH 24-PARGANAS

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144

C.C.NO. 104  OF 2019

DATE OF FILING                    DATE OF ADMISSION               DATE OF FINAL ORDER

Present                                             :  President   :  Asish Kumar Senapati

                                                              Member    :  Jagdish Chandra Barman

COMPLAINANT(S)                                    :  Sri ShyamalGhosh,

    Sri BimalGhosh,

                                                                                     Both sons of late HaromohanGhosh,

                                                             Both of Tentulberia, P.O.–Garia, P.S.-Sonarpur,

                                                             Now – Narendrapur, Kolkata–700 084,District –

                                                             South 24 Parganas.

Versus

O.P/O.Ps                                                        : 1.SriAmit Kumar,

Son of Late Amaresh Chandra Kumar,

Director of “M/S Ma Plaza PVT.LTD.”

Of 315, Tentulberia, P.O. – Garia, P.S. – Sonarpur,

Now – Narendrapur, Kolkata – 700 084, District –

South 24 Parganas.

2.SriArun Das Naskar,

Son of Late Sanat Das Naskar

3.Munmun Das Naskar,

Daughter of Late Sanat Das Naskar

4.SriKishor alias Amit Das Naskar,

                                                         Son of Late Ajit Das Naskar,

2 to 4 of Tentulberia, P.O. – Garia,

P.S. – Sonarpur, Now Narendrapur

Kolkata – 700 084, District – South 24 Parganas.

                                                           5.Smt. Kanak Das Naskar,

Wife of Late Ajit Das Naskar,

Of Tentulberia, P.O. – Garia,

P.S.-Sonarpur, Now Narendrapur

Sri Asish Kumar Senapati, President

This is a complaint U/S 12 of the C.P. Act, 1986.  One Shyamal Kumar Ghosh and another (herein after referred to as the Complainants) filed the case against one Amit Kumar and four others (here in after referred to  as O.Ps) filed the case praying for certain reliefs including compensations and litigation costs against the   OPs.

The gist of the complainant case is as follows :­

The complainants entered  into an agreement with the O.P. No. 1 on 20.06.2006 for sale of a flat  being No. “L-0048”,­ measuring about 495 sq. ft. specifically mentioned in Schedule “B” of   the complaint at  a consideration of Rs. 4,00,000/- (Rupees four lakhs).  The complainants  paid Rs. 1,83,000/- and it was agreed that the developer would make over possession of the said flat within 24 months from the date of sanction of the building plan dated 01.09.2005.  It is also stated in the complaint that the O.P. No-1 made an agreement on 9.7.2001 with the land owners.

The complainants requested the O.P. No. 1 to make over possession of the said flat but they did not hand over the possession of the said flat to the complainants.  Ultimately, the O.P. No. 1 handed over the flat to the complainants on 17.02.2018 but did not execute and register Deed of Conveyance in favour of the complainants and the O.P. No. 1 did not complete the pending works.  Finding no other alternative, the complainants sent a letter dated 19.05.2019 requesting the OP No.1  to make arrangement for registration of Deed of Conveyance but the O.P. No. 1 did not pay any heed to the request in spite of receipt of the letter.  The complainants also sent letters to the land owners on 02.07.2019 requesting them to execute and register the Sale Deed but none except O.P. No. 5 replied to the said notice and the Opp. Parties have deficiency in service. The cause of action of the suit arose on 20.10.2006 and thereafter on 17.02.2018 and subsequently on 19.05.2019 and lastly on 02.07.2019.  The complainants claimed for a direction upon the O.Ps. to execute and register Deed of Conveyance in respect of the B schedule property and after giving completion certificate and to pay compensation of Rs. 1,00,000/- (Rupees one lakh) and litigation cost of Rs.20,000/- (Rupees twenty thousand) to the Complainants. 

The O.P. No. 1 filed written version on 19.11.2019 inter alia denying the  material allegations made out in the complaint, contending that the complainants were engaged in supply of building materials from various project of “MA PLAZA PVT. LTD.” and the O.P. No. 1 made an agreement with the complainants on 20.10.2006 on good faith and trust.  It is stated that the O.P. No. 1 paid the prices of building materials to the complainants and he is ready to hand over the flat against the agreed consideration amount.  It is also ascertained that developer is enable to register the flat as the land owners Sanat Kumar Das Naskar and Ajit Kumar Das Naskar died and  a civil suit being No. 74 / 2011 is still pending and an order of injunction is going on.  The O.P. No. 1 prayed for  appropriate  order.

The O.P. No. 5 Kanak Das Naskar filed written version on 19.11.2019 contending that the case is not maintainable against the O.P. No.5.  The O.P. No. 5 never promised to hand over  possession of the said flat and she is not liable for registration of the deed of conveyance in favour of the complainants.  It is stated that the O.P. No. 5 is ready to execute the deed of conveyance after receiving Rs. 10,00,000/- (Rupees ten lakhs) for her share.

Other O.Ps did not contest the case.

On the basis of the written complaint and written versions the  following  points are framed  for proper      adjudication of the case :- 

1.  Is the case maintainable ?
2. Are the complainants consumers in terms of the Consumer Protection Act, 1986 ?
3. Is there any privity of contract between the parties ?
4. Is there any deficiency in service on the part of the O.Ps ?.
5. Are the complainants entitled to get  any relief/ reliefs against the OPs ?    

DECISIONS WITH REASONS

Point Nos. 1 & 2:-

The Ld. Advocate for the complainants submits that the complainants entered into an agreement with the O.P. No. 1 on 20.10.2006 for sale of the disputed property on receipt of Rs. 1,83,000/- out of Rs. 4,00,000/- (Rupees four lakhs).It is contended that the complainants are consumers..None appears on behalf of the O.Ps. in spite of the fact that the O.P. Nos. 1 & 5 filed written version and O.P. No. 5 also filed evidence on affidavit.

It appears from the agreement for sale dated 20.10.2006 that the complainants and the O.P.No.1 entered into an agreement for sale of the disputed flat at a consideration of Rs. 4 lakhs on receipt of Rs.1,83,000/-from the complainants.It is the version of the complainants that the O.P. No. 1 handed over possession of the disputed flat to the complainants on 17.02.2008.On a careful consideration we find that the case is maintainable and the complainants are consumers under theO.P. No.1.We find that the complainants have not entered into any contract with the O.P. Nos. 2 to 5. Therefore, we hold that the case is not maintainable against the OP Nos 2 to 4 as there is no privity of contract between the Complainants and the OP Nos. 2to 4.

Point No. 4 & 5:-

The Ld. Advocate for the complainants submits that the complainants paid Rs.1,83,000/- to the O.P. No. 1 on 20.10.2006 and the complainants are ready and willing to pay the rest amount of Rs.2,17,000/-.It is argued that the O.Ps have not yet executed and registered the deed of conveyance in favour of the complainants in spite of repeated requests.It is urged that the O.P. No. 1 has deficiency in service and the complainants are entitled to get the disputed flat and compensation of Rs. 1,00,000/- (Rupees one lakh) and litigation cost of Rs.20,000/- (Rupees Twenty Thousand) from the O.Ps.

None on behalf of the OPs took part in hearing of argument.

We have gone through the written complaint and the written versions , evidencefiled by the Complainants and the OP no.5 and BNA filed by the Ld. Advocate for the complainants.

It appears from the agreement for sale dated 20.10.2006 that the O.P. No. 1 was agreed to sale the disputed flat to the complainants at a consideration of Rs. 4,00,000/- (Rupees four lakhs) on receipt of Rs.1,83,000/-.It is the version of the complainants that the complainants got possession of the disputed flat on 17.02.2018 but they have not paid the rest consideration amount of Rs.2,17,000/- as per agreement dated 20.10.2006.We find that the complainants have noprivity of contract with the O.P. Nos. 2 to 5 so we find no justification to pass any order against the O.P. Nos. 2 to 5.We find that the O.P. No. 1 alleged that payment of building materials was made to the complainants but it is not relevant to the present case.The O.P. No. 1 has also stated in his written version that a civil suit is pending before the Ld. 2^nd CivilJudge(Junior Division) Baruipur beingT.S. No. 74/2011 but no documentary evidence in support of his claim has been filed.We find that the complainants have not performed part of their performance in terms of the agreement dated 20.10.2006 by not paying the balance amount of Rs.2,17,000/- in spite of getting possession of the disputed flat as per agreement.In our considered opinion the complainants are duty bound to pay Rs. 2,17,000/- (Rupees two lakhs and seventeen thousand) with interest from the date of taken possession of the disputed flat i.e.w.e.f. 17.02.2018 and the O.P. No. 1 is also liable to execute and register the Deed of Conveyance infavour of the complainants on receiving the balance amount of Rs.2,17,000/- (Rupees two lakhs and seventeen thousand) with up-to-date interest from the complainants. We find that the OP No.1 has deficiency in service as they did not execute and register the deed of conveyance in favour of thein spite of receipt of the letter dated 19.05.2019 .

In our considered view, the O.P. No. 1 may be directed to execute and register the Deed of Conveyance in favour of the complainants on receipt of Rs.2,17,000/- (Rupees two lakhs and seventeen thousand) with up-to-date interest @ 7% (simple interest) w.e.f. 17.02.2018 till payment.We think that the complainants are entitled to get litigation cost of Rs.5,000/ against the OP No.1 but they are not entitled to get compensation against the OP No.1 as the complainants did not perform their part of performance in terms of the agreement dated 20.10.2016 by not paying the rest consideration amount of Rs. 2,17,000/- to the OP No.1 on or before 17.02.2018 as per agreement dated 20.10.2006.

In the result, the case succeeds.

Fees paid arecorrect.

Hence,

                                                                          ORDERED

That the case be and the same is hereby allowed exparte against  the O.P. No. 1 with cost of Rs.5,000/- and dismissed on contest against the O.P. No. 5 without cost  and dismissed exparte against the O.P. No. 2, 3, 4 without cost.  The O.P. No. 1 is directed to execute and register the Sale Deed in favour of the complainants in respect of the disputed flat  within sixty days from the date of  this order on receipt Rs.2,17,000/- with simple interest @ 7% p.a.  w.e.f. 17.02.2018 till payment .  The complainants are directed to pay Rs.2,17,000/- with simple interest @ 7% p.a.  w.e.f. 17.02.2018 till payment to the O.P. No.1 on the date of registration within a period of sixty days from the date of the Final order for registration and execution of the Sale Deed.   The O.P. No. 1 is also directed to pay Rs. 5,000/- as litigation cost to the complainants by 60 (sixty) days from the  date of this order.

Let copies of the order be handed over to the respective parties / their representatives / agents as per rules.The final order is also be available in the following websitewww.confonet.nic.in.

Dictated and corrected by me