West Bengal

South 24 Parganas

CC/48/2015

Dilip Dey, S/O Late Manasha Charan Dey. - Complainant(s)

Versus

1. Sri Anup Chowdhury, Proprietor of Tulip Construction Company. - Opp.Party(s)

Uttiya Saha.

05 May 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _48   OF ___2015____

 

DATE OF FILING : 27.1.2015     DATE OF PASSING JUDGEMENT:   05.05.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                    

 

COMPLAINANT                  :  Dilip Dey,s/o late Manasha Charan Dey of 19M, Jheel Road, P.S. Kasba, now Garfa, ,Postal Address at 2/9G, Sahid Nagar, Kolkata- 31 and residing at Uttar Chak Bhabani, P.S Balurghat, Dist. Dakshin Dinajpur.

 

-VERSUS  -

 

O.P/O.Ps                                :     1. Sri Anup Choudhury, Prop. Of Tulip Construction Company of 9A, West Road, P.S. Purba Jadavpur, Kolkata – 75.

                                                     2.     Sri Dipak Mukherjee

                                                     3.     Sri Tapas Mukherjee

                                                     4.      Smt. Sila Moitra

                                                     5.      Smt. Ila Gargari

                                                    6.       Smt. Rina Chakraborty,

                                                    Nos. 2 and 3 are sons and 4,5 and 6 are daughters of late Jiban Kumr Mukherjee of 2/41, Sahid Nagar, P.S. Kasba, Kolkata – 31.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that complainant entered into an agreement for sale on 4.2.2012 with the O.P-1, developer, for purchasing a flat on the first floor front side comprising super built up area 600 sq.ft together with the undivided proportionate share of land of the proposed building  consisting of two bed rooms, dining/drawing , kitchen, one toilet, one W.C one balcony situated on 2 cottah 4 chittak 0 sq.ft land at 19M, Jheel Road, Mouja Dhakura, J.L. 18, P.S. Garfa, Kolkata – 31 , at a consideration of Rs. 16,50,000/- ,out of which complainant already paid Rs.11,95,000/- to the O.p-1 and Rs.4,55,000/- is still due. Possession of the flat was delivered to the complainant without possession letter. Complainant is now residing there but Inspite of several requests followed by legal notice date 2.5.2013 O.Ps did not execute and register the deed of conveyance in favour of the complainant. Hence, this case praying for execution and registration of the deed of conveyance by the O.Ps ,accepting Rs.4,55,000/- by the O.P-1, to hand over completion certificate, compensation and cost etc.

            The O.P-1 contested the case by filing written version denying all the material allegations contending inter alia that complainant never paid the dues in proper time since 23.01.2013. the case of the O.P is that a letter was sent to the complainant demanding Rs.7,50,000/- which included the cost incurred for doing the extra work as suggested by the complainant along with the late payment charge and complainant duly received the letter but remained silent. O.P-1 also filed a Civil Suit being T.S. no.114 of 2013 before the Ld. 1^st Civil Judge (Jr. Division ) and the Ld. Court also pleased to pass an order of interim injunction. Inspite of the order passed by the ld. Court  , the complainant forcefully entered the said flat but has shown no interest in paying the dues of the O.P-1. The O.P-1 denied of receiving Rs.11,95,000/-. As per the O.P-1 complainant paid Rs.11,25,000/- as per receipt and due is Rs.7,50,000/- not Rs.4,55,000/-. O.P-1 is ready and willing to register the flat on receipt of Rs.7,50,000/- . The O.P-1 prays for dismissal of the case.

            No other O.Ps contested the case for which case is proceeding in exparte against them.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken together as they are interlinked.

            After perusing the petition of complaint, written version , all other documents, and hearing argument minutely it appears that admittedly the complainant entered into an agreement for sale on 4.2.2012 with the O.Ps for purchasing a flat, where the total consideration was fixed at Rs.16,50,000/- and the complainant has already paid Rs.11,95,000/- to the O.P-1,developer, where O.P nos. 2 to 6 are land owners. Therefore, as per provision of the C.P Act, 1986 the complainant is a “Consumer” and O.Ps are “Service provider” under section 2(1)(D) (II) and 2(1)(o ) of the C.P Act, 1986.

            It is crystal clear that even after entering into an agreement for sale dated 4.2.2012 , O.Ps have not executed and registered the Deed of conveyance in favour of the complainant with respect to the suit flat and as per provision of the C.P Act, 1986 and also considering the valuable series of decisions of Hon’ble NCDRC it is beyond doubt that delay to execute and register the deed of conveyance in question amounts to deficiency in rendering services towards the complainant/consumer. O.P-1 being developer is also duty bound to hand over the completion certificate to the complainant but O.P-1 did not do the same.

            Moreover, O.P-1 should take necessary action for completion of the flat as per agreement for sale dated 4.2.2012 in its entirety and inaction regarding completion of flat it is not only deficiency in service but social wrong for not taking proper action for bringing permanent water connection for the building where the suit flat is situated.

            Therefore, considering the four corners of the instant case and in light of the above discussion we have no hesitation to hold that for the aforesaid inaction and deficiency in service O.P-1 is liable and O.P nos. 2 to 6 being land owners cannot shrug off their responsibility to execute and register the deed of conveyance in favour of the complainant with respect to the suit flat in question. We have no hesitation to hold that for the above discussed  deficiency in service on the part of the O.P-1, developer, complainant has to suffer not only immense tension and tremendous harassment but also huge financial loss and O.P-1 is liable to aptly compensate the complainant.

            Before concluding the decision with reasons it is needed to be mentioned here that O.P-1 filed a Title Suit being no.114 of 2013 before the Ld. First Civil Judge (Jr. Division) Alipore and it has also come to our knowledge as per submission of the complainant (Para 21 of evidence on affidavit) and also from the documentary evidence  i.e. the certified copy of the aforesaid order (vide order no.15 dated 2.6.2015) that in this regard it is opined by this Forum that considering the facts and circumstances this Forum has no embargo to adjudicate the instant case as Ld. First Civil Judge(Jr. Division) Alipore has been pleased to order that  the suit be and the same is dismissed for default and is thus disposed of.

            Thus all the points are discussed and all are in favour of the complainant.

            Therefore, the complaint case succeeds.

            Hence,

                                                                        Ordered

That the case be and the same is  allowed on contest against O.P-1 with cost and exparte against the rest .

All the O.Ps are jointly and/or severally directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant as per agreement for sale .

Complainant is directed to pay the balance amount of Rs.4,55,000/- to the O.P developer on the date of registration of the suit flat.

The O.P-1 is directed to provide permanent water connection for the flat in question and to provide completion certificate from the KMC authority.

The O.P-1 is also directed to pay Rs.2 lacs as compensation towards mental agony and financial loss and harassment of the complainant and also to pay litigation cost of Rs.5000/- to the complainant.

All the aforesaid orders should be complied with within 30 days from the date of this order, failing which, the O.P-1 has to pay interest @10% p.a on the compensation amount from this date till realization.

If the O.P nos. 2 to 6  failed to execute and register the deed of conveyance in favour of the complainant within the stipulated period, they shall pay Rs.100/- per diem after stipulated period is over, out of which 50%  will be paid to the complainant and 50% amount will be deposited in the Consumer legal Aid Fund , South 24-Pargnas.

 

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President                                

 

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 on contest against O.P-1 with cost and exparte against the rest .

All the O.Ps are jointly and/or severally directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant as per agreement for sale .

Complainant is directed to pay the balance amount of Rs.4,55,000/- to the O.P developer on the date of registration of the suit flat.

The O.P-1 is directed to provide permanent water connection for the flat in question and to provide completion certificate from the KMC authority.

The O.P-1 is also directed to pay Rs.2 lacs as compensation towards mental agony and financial loss and harassment of the complainant and litigation cost of Rs.5000/- to the complainant.

All the aforesaid orders should be complied with within 30 days from the date of this order, failing which, the O.P-1 has to pay interest @10% p.a on the compensation amount from this date till realization.

If the O.P nos. 2 to 6  failed to execute and register the deed of conveyance in favour of the complainant within the stipulated period, they shall pay Rs.100/- per diem after stipulated period is over, out of which 50%  will be paid to the complainant and 50% amount will be deposited in the Consumer legal Aid Fund , South 24-Pargnas.

 

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

Member                                                                                   President