West Bengal

South 24 Parganas

CC/377/2015

Sri Uttam Kumar Halder, S/O Sri Tapan Halder. - Complainant(s)

Versus

1. Sri Gopal Banerjee, S/O Late Kiran Banerjee. - Opp.Party(s)

Ramkrishna Roy Chowdhury.

05 Aug 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. ___377   OF ___2015____

 

DATE OF FILING : 18.8.2015     DATE OF PASSING JUDGEMENT:  05-08-2016

 

Present                        :   President       :  Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                                

 

COMPLAINANT                  :  Sri Uttam Kumar Halder,s/o Sri Tapan Halder of Kamrabad North, P.O & P.S Sonarpur, Kolkata – 150

 

-VERSUS  -

 

O.P/O.Ps                                :  1. Sri Gopal Banerjee,s/o late Kiron Banerjee  of Baruipur Kulpi Road, Neal Doltala, Baruipur Purantan Bazar, P.O & P.S Baruipur,Kolkata-144 ( Being the Registerred Powr of Attorney Holder of all the Venders namely i) Sri Gauranga Mondal,s/o Nanilal Mondal of 4B, East Rajapur, P.S. Purba Jadavpur, Kolkata – 75 , (ii)  Sri Bishnu Prasad Pal,s/o late Nandalal Pal of C-222, Survey Park, P.O Santoshpur, P.S. Purba Jadavpur, Kolkata – 75 (iii)  Sri Paresh Chandra Biswas,s/o late Nakari Biswas of C-222, Survey park, P.O Santoshpur, P.S. Purba Jadavp7ur, Kolkata – 75 (iv)  Sri Nirmal Sarkar,s/o late Satya Charan Sarkar of A-14, Nandan Kanan, P.O Santoshpur, P.S. purba Jadavpur, Kolkata – 75

                                                                       AND

                                               Also becoming one of the Parnters of the O.P-2

                                               2.  M/s SURYA TORON, Baruipur Kulpi Road, Near Doltola, Baruipur Puratan Bazar, P.O & P.S Baruipur, Kolkata – 144

                                               3.    Sri Sukumar Mondal,s/o late Jatindra Nath Mondal of Ishika Apartment, near Baruipur Rail Gate, P.O & P.S Baruipur, Kol-144 , one of the partners of O.P-2.

                                                

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

            The petition of complaint made under section 12 of the C.P Act ,1986 has been filed by the complainant against the O.Ps on the ground that complainant entered into an Agreement for sale with the O.Ps on 23.8.2013 and major part payment of Rs.1,00,000/- was made as an earnest money to the O.Ps for the purpose of purchasing an incomplete office/shop room measuring about 60 sq.ft at the ground floor East of and beside the care taker room of the existing building Surya Toron Apartment , Chak Garia being premises no.2009, Chak Garia, Ass. No.31-109-03-2057-2 under War no.109, P.S. Purba Jadavpur, , Dist. South 24-Parganas , which shop room will be completed at the cost of the purchaser after purchasing the same by the purchaser according to his own choice and as per terms and conditions and/or specification of the deed of conveyance to be executed later. Thereafter complainant purchased the said incomplete shop /office room on 7.10.2013 on payment of rest of the consideration money i.e. Rs.20,000/- ( total consideration Rs.1,20,000/-) through execution of a deed of conveyance . The case of the complainant is that after execution of the registered Deed of Conveyance more than about 1 years and 10 months have passed yet inspite of repeated requests the O.Ps did not hand over khas vacant and peaceful possession of the office room to the complainant .Hence, this case praying for hand over khas possession of the shop/office room ,alternatively to refund the consideration money  compensation to the tune of Rs. 8 lacs  and litigation cost Rs.50,000/-.  And other relives

            The O.P nos.1,2 and 3 contested the case by filing joint written version denying all the material allegations contending inter alia that O.Ps caused delivery of possession and as a result thereof there cannot be any cause of action for deficiency of service . The positive case of the O.Ps is that  the O.Ps immediately after conveying the immovable property in question on 8.10.2013 handed over peaceful vacant possession of the immovable property in question to the complainant and the complainant after taking possession on 8.10.2013 made frequent visits and took steps to complete the unfinished works and that was the reason the complainant did not raise any issue with the O.Ps seeking vacant possession prior to lawyer’s notice dated 29.6.2015  and that after 1 year 10 months issuance of the notice  is nothing but distortion of facts with intent to conceal truth and it is unbelievable that complainant being  a lawyer did not demand possession immediately on purchase by a deed of conveyance. Since the complainant is in possession of the shop /office room, question of re-delivery of possession now or return money with alleged amount of compensation ,cost  are unrealistic and immaterial. The O.P humbly submits that the complainant is not entitled to get any relief from the Ld. Forum and pray for dismissal of the case.

            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.

            It is crystal clear from the record that the complainant paid a lump sum amount towards the consideration for purchasing an incomplete office room to the O.Ps. Is is also beyond doubt from the submission of the complainant and also from the complaint petition filed on affidavit that complainant with intention to earn for his livelihood has entered into an agreement to purchase the property in question. Therefore, the complainant of the instant case is the “Consumer” under the purview of the definition prescribed in the C.P Act, 1986.

            Thus the point no.1 is discussed and the same is in favour of the complainant.

            It is beyond doubt that the O.Ps have received a lump sum amount from the complainant towards the office room in question and it is settled principle of Law that in such issues O.Ps are duty bond to hand over the peaceful possession of the property in question and to execute and register the deed of conveyance of the suit property in favour of the complainant/consumer.

            But in the instant case though the deed of conveyance is executed and registered in favour of the complainant on 7.10.2013  but as per complainant O.Ps have not delivered the property in question to the complainant till the hearing of argument of the case. Though the O.Ps in their written version has claimed that they have delivered possession but they cannot substantiate their averment by any cogent evidence in any form. In this regard it is needles to mantion that Hon’ble National Commission has already been pleased to observe that delay to hand over the possession of the property in question amounts to deficiency in rendering services towards the complainant/consumer and service providers/O.P s are liable to not only hand over the possession fo the suit property but also to aptly compensate the complainant/consumer. Keeping in mind the aforesaid observation of the Hon’ble National Commission which is also affirmed by the Hon’ble Apex Court, we have no hesitation to hold that O.Ps are jointly and/or severally liable for deficiency in service towards the complainant/consume and they are duty bond to hand over the possession of the office/shop room in question and in light of the aforesaid discussion it is strongly opined by this Forum that due to delay to deliver possession complainant has to suffer not only immense financial loss but also has to face tremendous mental agony and harassment and complainant is liable to be aptly compensated by the O.Ps.

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

            Therefore, complaint case succeeds.

            Hence,

                                                            Ordered

That the case be and the same is allowed on contest against the O.P s with cost of Rs.5000/-..

 All The O.Ps are directed jointly and/or severally to hand over the peaceful possession of the shop/office room in question as per schedule mentioned in the petition of complaint  and to pay compensation to the tune of Rs.5 lacs to the complainant due to his financial loss, mental agony and harassment caused due to deficiency in rendering services by the O.P nos. 1,2 and 3 towards the complainant.

All the above orders should be complied with within 30 days from the date of this order, failing which, interest @10% p.a  on the compensation amount will carry from the date of default till realization.

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 the O.P s with cost of Rs.5000/-..

 All The O.Ps are directed jointly and/or severally to hand over the peaceful possession of the shop/office room in question as per schedule mentioned in the petition of complaint  and to pay compensation to the tune of Rs.5 lacs to the complainant due to his financial loss, mental agony and harassment caused due to deficiency in rendering services by the O.P nos. 1,2 and 3 toward sthe complainant.

All the above orders should be complied with within 30 days from the date of this order, failing which, interest @10% p.a  on the compensation amount will carry from the date of default till realization.

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

 

                                                                        Member                                                           President