West Bengal

South 24 Parganas

CC/199/2015

Smt. Tripti Bose Wife of Late Tarun Kanti Bose. - Complainant(s)

Versus

1. Sri Asish Guha, S/O Late Phani Bhusan Guha. - Opp.Party(s)

Partha Sarathi Kashyapi

10 Aug 2015

ORDER

                 DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _199_ OF ___2015_____

 

DATE OF FILING : 24.4.2015     DATE OF PASSING JUDGEMENT:  10.8.2015__

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT              :   Smt. Tripti Bose, w/o late Tarun Kanti Bose , C/o Aloke Mitra of 104/3/7A, Satyen Roy Road, Behala  Garden, P.S. Behala, Kolkata- 34.

 

-VERSUS  -

 

O.P/O.Ps                            :    1.  Sri Asish Guha, s/o late Phani Bhusan Guha,                                   

102/2, Roy Bahadur Road, P.S. Behala, Kolkata – 34.

2.     GRSV Projects , at 25A, Raja Rammohan Roy Road, P.S. Behala, Kolkata – 8.

3.  Rahul Das, s/o Sri Kanai Lal Das, Prop. GRSV Projects of 25A, Raja Rammohan Roy Road, P.S. Behala, Kolkata – 8.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986.

            The short story of the complainant is that one Asish Guha is the absolute owner of Schedule A property mentioned herein by virtue of Indenture dated 28.3.2003. The said owner entered into an agreement with the O.P-1 for raising of a new three storied building with one construction company known as GRSV Project on 26.12.2011 ,which was duly registered and recorded in the Book number and Volume Number for the year 2012. It may be mentioned here that O.P-1 also executed registered development power of attorney in favour of O.P-3 , Rahul Das ,son of Kanai Lal Das , Prop. Of O.P-2 company as Constituted Attorney to negotiate the terms and to agree to and entered into any agreement for sale in respect of the developer’s allocation ,which are mentioned in Annexure B  and B1. The complainant is an intending purchaser and desired to purchase one flat in the ground floor measuring 400 sq.ft super built up area consisting of one bed room, one kitchen, one toilet together with undivided impartibly proportionate share in the said property situated at 112, Roy Bahadur Road, Kolkata – 40 in Ward no.119, District South 24-Parganas and entered into an agreement for sale with the O.P-2 represented by O.P-3, the developer company. On 19.7.2012 complainant paid Rs.4,50,000/- out of Rs.12 lacs. The Xerox copy of the said agreement for sale and money receipts are annexed herewith as D & E series. It has mentioned in the agreement dated 19.7.2012 that developer has stated in his hand writing “The Flat GA  khas possession within September, 2013”(Page no.35 of the agreement). It has also mentioned that in the said agreement dated 19.7.2012 in page no.21, it has mentioned that developer is also liable to pay interest @18% p.a upon the money paid by the purchaser if the developers fail to deliver possession of the said flat within the stipulated period as mentioned above except on reasonable ground of force measure. But the developer did not hand over the possession of the said flat within the September, 2013 inspite of requests and intimation through postal receipts, which are marked Annexure F series. Hence this case with the prayer to direct the O.P nos. 2 and 3 to complete the unfinished flat, to hand over possession fo the flat and to execute and register the deed of conveyance as well as to pay interest @18% p.a payable on Rs.4,50,000/- , compensation to the tune of Rs.2,50,000/- and litigation cost etc.

            Inspite of serving summon O.P nos. 2 and 3 , the developer company and the developer did not pay any heed to attend the Forum. So, it can be safely presumed that they have accepted the allegation leveled against them.

            But O.P-1 namely Asish Guha has appeared and filed one application and stated that he will not file any written version and willing to execute and register the deed of conveyance in favour of the complainant.

            The complainant also filed a separate application with a prayer to treat the contents of the complaint as his evidence.

            In this circumstances the case is taken up for exparte argument and after hearing the complainant and O.P-1 the date of judgement is fixed on 10.8.2015 with a view that if in the meantime O.P nos. 1 and 2 appeared then applying considerable amount of natural justice they will get opportunity to file written version and evidence but till today they have not appeared. This is the background for passing judgement by this Forum , with a consideration that this Forum has been formed to redress the grievance of the complainant at large , not to give or welcome deficiency of service of unruly O.P nos. 2 and 3.

            Points for decision in this case is whether O.P nos. 2 and 3 made any deficiency in service and unfair trade practice by not completing the flat in dispute insptie of the agreement dated 19.7.2012.

Decision with reasons

            We have perused the parent deed as well as development agreement and agreement for sale along with other documents that is sanctioned plan, lawyer’s letter, money receipts, as well as Memo of consideration, which are within the agreement for sale and we find that complainant entered into an agreement with the O.P nos. 2 and 3 for purchasing a flat measuring 400 sq.ft in the ground floor as per schedule with a consideration of Rs.12 lacs and out of which he has paid Rs.4,50,000/-. Probably, the O.P-2 was not progressing the construction work ,that is why complainant by watching the situation did not pay further amount of consideration ,for which till Rs.7,50,000/- is remaining due. It is surprising that inspite of receipt of summon developers i.e. O.P nos. 2 and 3 remained silent. They are not raising dispute like non-payment of remaining consideration money etc. So, this circumstances clearly suggest that they have grabbed the good money of the complainant which has been paid at the time of agreement for sale i.e. Rs.4,50,000/-. We find that God  saved the complainant not to pay further money.

            We are aware regarding O.P nos. 2 and 3 since there are several litigations pending before this Forum against them. So, we find it is a glaring example of deficiency of service and unfair trade practice of O.P nos. 2 and 3 and we also find that O.P-1 being a land owner has realized their fault that whom he allowed to develop his land ,that is why , in order to show his good gesture and fairness he has come before this Forum and filed application that he will not deny any allegation leveled against by the complainant against the O.P nos. 2 and 3 and he is ready to perform his part by executing and registering the deed of conveyance in favour of the complainant and we do not find any deficiency in service of O.P-1.

            With that observation, it is

                                                                                    Ordered

That the case be and the same is allowed on contest against O.P-1 and exparte against O.P nos. 2 and 3 .

The O.P nos. 2 and 3 are hereby directed to complete the unfinished and pending work related to the flat of the complainant within 45 days from the date of this order, failing which, complainant is at liberty to arrange completion of her flat with the remaining consideration money and maintain accounts so that after completion she may hand over the remaining money to the O.P nos. 2 and 3 ,if they are available.

O.P nos. 2 and 3 are also directed to give possession of the flat to the complainant within that stipulated period as stated above.

O.P nos. 2 and 3 are also directed to pay compensation to the tune of Rs.2,50,000/- to the complainant along with litigation cost of Rs.25000/- within the stipulated period and complainant is at liberty to deduct the amount of compensation and litigation cost after completion of the flat from the remaining amount payable to the O.P nos. 2 and 3 if they do not comply the order.

The O.P-1 is directed to execute and register the deed of conveyance in favour of the complainant in respect of the unfinished flat on a view that complainant will get legal entity over the flat in dispute for further completion work and we also appoint our machinery of the Forum to stand as a confirming Party on behalf of the O.P nos. 2 and 3 in the said deed of conveyance.

If the complainant failed to get the possession as well as registered deed of conveyance along with compensation and cost within 45 days from the date of this order, then she is liable to refund the advance consideration of Rs.4,50,000/- along with interest @18% p.a from the date of payment till its realization.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President

 

Dictated and corrected by me

 

 

 

 

                        President

 

 

The judgement 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 and exparte against O.P nos. 2 and 3 .

The O.P nos. 2 and 3 are hereby directed to complete the unfinished and pending work related to the flat of the complainant within 45 days from the date of this order, failing which, complainant is at liberty to arrange completion of her flat with the remaining consideration money and maintain accounts so that after completion she may hand over the remaining money to the O.P nos. 2 and 3 ,if they are available.

O.P nos. 2 and 3 are also directed to give possession of the flat to the complainant within that stipulated period as stated above.

O.P nos. 2 and 3 are also directed to pay compensation to the tune of Rs.2,50,000/- to the complainant along with litigation cost of Rs.25000/- within the stipulated period and complainant is at liberty to deduct the amount of compensation and litigation cost after completion of the flat from the remaining amount payable to the O.P nos. 2 and 3 if they do not comply the order.

The O.P-1 is directed to execute and register the deed of conveyance in favour of the complainant in respect of the unfinished flat on a view that complainant will get legal entity over the flat in dispute for further completion work and we also appoint our machinery of the Forum to stand as a confirming Party on behalf of the O.P nos. 2 and 3 in the said deed of conveyance.

If the complainant failed to get the possession as well as registered deed of conveyance along with compensation and cost within 45 days from the date of this order, then she is liable to refund the advance consideration of Rs.4,50,000/- along with interest @18% p.a from the date of payment till its realization.

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President