DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _426 _ OF 2015
DATE OF FILING : 21.9.2015 DATE OF JUDGEMENT:15.3.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Smt. Dipti Bose, wife /widow of late Madan Gopal Bose, formerly residing at 42, Banerjee Para Lane, P.S Kasba, Kolkata-31, and at present residing at 1st Floor of 46/D, Bikramgarh Colony, Kolkata-32, P.S jadavpur, Dist. South 24-Parganas.
O.P/O.Ps : 1. Sri Bapi Saha
2. Sri Bappa @ Abhijit Saha,
Both sons of late Sudarshan Saha of Flats at 46/D, Bikramgarh Colony, Kolkata-32, P.S jadavpur, Dist. South 24-Parganas.
3. Smt. Sadhana Saha, wife of Shyamal Saha of 23A, Ramgarh, Kolkata-17 .
4. Smt. Rita Mazumder, wife of Sri Chanchal Mazumder of 3/1/60, Beliaghata Main Road, Kolkata-10.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
This complaint is filed by the complainant under section `12, C.P Act, 1986 , alleging deficiency in service on the part of the O.Ps.
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
One Sudarshan Saha was the predecessor in interest of all the O.Ps. He made an agreement for sale in 2004 in favour of the complainant and thereby agreed to sell a flat of 630 sq.ft in his constructed residential building for a total consideration price of Rs.3,80,000/-. The complainant paid Rs. 2,60,000/- up to the date of execution of sale agreement The balance amount of consideration money was to be paid by the complainant within 4 months of the date of execution of the sale agreement, when the original O.P would complete the construction of the flat of the complainant and to make it habitable and self contained. The registration of sale deed with respect to the flat was also tobe effected at that time. Thereafter, the complainant has also paid further consideration price part by part and now the complainant is required to pay only Rs.35,500/- to the O.Ps, who are the legal heirs of Sudarshan Saha. O n 1.5.2004 possession was delivered to the complainant by the predecessor in interest of the O.P. But the flat was incomplete at that time. Complainant’s repeated requests for registration and completion of the flat was turned down by the predecessor in interest of the O.Ps and also by these O.Ps since 2007. Now, the complainant has come up before this Forum ,praying for registration of her flat and also for payment of compensation etc. Hence, arises the case.
O.P nos. 3 and 4 have not turned up to contest the case and ,therefore, the case is heard exparte against them.
It is O.P-1 & 2 who have filed written statement ,wherein, they contend inter alia that the complainant herself violated the terms of the agreement. She has taken possession of the flat which was incomplete as per her sweet will and his father did not want to deliver possession of the flat to the complainant at that time. But on complainant’s insistence their father delivered the possession of the flat to the complainant. The complainant is not entitled to claim completion of the flat after expiry of so many years. The father of O.P nos. 1 and 2 wanted to register the flat in favour of the complainant, but the complainant refused to have the flat registered inasmuch as she did not have the requisite money to complete the registration of the flat.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainant has led her evidence on affidavit. Similarly evidence on affidavit has been led by the O.P-1 and 2. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is contended on behalf of the contesting O.Ps that the case is not maintainable before this Forum. The complainant should have filed a suit for Specific Performance Act before the Civil Court as the validity of sale agreement has expired within four months of the date of execution of the sale agreement. The contention appears to be not maintainable in law. This Forum has got additional jurisdiction to deal with case of such kind under section 3 of Consumer Protection Act, 1986. There is matter of service involved in the agreement executed by the original O.P. The original O.P i.e the predecessor in interest of the O.ps made a promise to construct a flat for the complainant in the building which was constructed by him and with that promise, he sold the flat to the complainant. So, there is a provision for service involved in this case and ,therefore, this Forum has got ample jurisdiction to deal with this case. The case is quite maintainable before this Forum.
It has been stated by the complainant in the evidence that the predecessor in interest of the O.Ps agreed to sell the flat to her for a consideration price of Rs.3,80,000/- and out of that consideration price he almost received the entire price except Rs.35500/- only. It is further deposed by her that she took the delivery of possession of the flat ,but the flat was incomplete and the predecessor in interest of the O.Ps have not completed the flat in terms of the agreement executed by him. It also transpires in her evidence that the predecessor in interest of the O.Ps also defaulted in the matter of registration of the flat in favour of the complainant. All these allegations of the complainant have virtually not been contradicted and all these allegations have remained unchallenged and undisputed.
It is admitted by the contesting O.Ps that the flat in question was handed over in incomplete position and it was done so as per the sweet will of the complainant. Be that as it may, both the parties are bound by the terms of the agreement and both the parties will have to comply those terms of the agreement at any cost. True, there are some laches on the part of the complainant; the complainant should have obtained the registration of his flat by the O.Ps much ahead of the instant case. But, she did not take any initiative. Regards being had to all these, we are inclined to say that it will be proper justice if we order the O.ps to pay Rs.50,000/- to the complainant to enable her to get the flat completed. At the same time, we should direct the O.Ps to effect a deed of conveyance in favour of the complainant. The complainant is thus entitled to get relief or reliefs as prayed for.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 2 with a cost of Rs.10,000/- and decreed exparte against the O.P nos. 3 and 4 without any cost.
All the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant with respect to the subject flat and also to pay Rs.50,000/- to the complainant as compensation for having the flat of the complainant completed , within a month of this order, failing which the complainant is at liberty to execute this decree through the process of this Forum . At the same time, the complainant is directed either to deposit in this Forum or to pay to the O.Ps the balance consideration money of Rs.35,500/- before the date of registration of her flat by the O.Ps.
Registrar-In-Charge of this Forum is directed to deliver a copy of the judgment free of cost to the parties concerned.
President
I / We agree
Member
Dictated and corrected by me
President
