West Bengal

South 24 Parganas

CC/37/2015

Sri Gopal Sarkar, S/O Late Santi Ranjan Sarkar. - Complainant(s)

Versus

1. Sri Goutam Maity, S/O Late Aswini Kumar Maity. - Opp.Party(s)

05 Oct 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _37   OF ___2015____

 

DATE OF FILING : 20.1.2015     DATE OF PASSING JUDGEMENT:         05.02.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu & Subrata Sarker              

 

COMPLAINANT                  :  1. Sri Gopal Sarkar,s/o late Santi Ranjan Sarkar of 230-T-61, Subhas Pally, Garia, P.S. Regent Park, Bansdroni, Kolkata – 84.

2.     Sri Raj Kumar Upadhyay,s/o late purna Deb Upadhyay of 558,Kandahari Purbapara, Garia, P.S. Regent Park, Kolkata-84.

 

-VERSUS  -

 

O.P/O.Ps                                :     1.   Sri Gautam Maity,s/o late Aswini Kumar Maity of D/7, Katju Nagar, P.S. Jadavpur, Kolkata – 92.

                                                   2.   Sri Krishnakanta Sarkar,s/o late Santi Ranjan Sarkar of 230-T-61, Subhas Pally, Garia, P.S. Regent Park, Bansdroni, Kolkata – 84.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainants is that complainant no.1 is a co-sharers (owners) of the property situated at Mouza Kamdahari, Dist. South 24-Parganas at premises no.27, Subhas pally, Kolkata – 84 and as per development agreement he is entitled to get a shop room measuring 60 sq.ft but the O.P has not arranged for registration of the said shop room.

            The complainant no.2 is also exclusive owner of 90 sq.ft shop room together with other facilities .

            Accordingly the complainants entered into the Development Agreement on 24.5.2007 along with power of attorney given to the O.P-2 for all purpose. Since O.P-1 failed to complete the construction within 18 months stipulated, another agreement was executed between them on 8.5.2009 with a new clause regarding payment of compensation @Rs.25000/- to the owners.

            The O.P-1 without completing the transfer of owners’ allocation in the said building had been transferring some flats to the intending purchasers . Hence , this case praying for direction upon the O.P-1 to pay compensation amounting to Rs.3,36,000/- out of which complainant would get his dues and to hand over possession of shop room measuring 90 sq.ft , to arrange registration of shop room measuring 60 sq.ft in favour of the complainant no.1 and other prayers.

            The O.p-2 contested the case by filing written version denying all the material allegations contending inter alia that O.P-1 has already handed over the possession of the said flat to the O.P-2 and he has no knowledge regarding the above mentioned complaint case and O.P-2 wants to strike out his name from this case. Thus, O.P-2 prays for dismissal of the case.

            The O.P-1 contested the case by filing written version denying all the material allegations contending inter alia that As per agreement the complainants are entitled to get two self contained flats and four shop room in the building as owners allocation and therefore, the developer has have no power and authority to register the deed of conveyance in favour of the co-owners and their portions have already been handed over. The O.P-1 prays 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. 

            After scrutinizing the complaint, written version and other evidences , documents brought before this Forum by the parities, it is admitted fact that the complainants being co-sharers of a land entered into a development agreement on 8.5.2007 with the O.P-1 for getting two self contained flats and two shop rooms in the building as owners’ allocation. O.P-2 is one of the land owner of the aforesaid land.

            It is also admitted fact that as per that agreement the O.P-1 has failed to complete the building in question within the above mentioned development agreement and the subsequent agreement was signed between the O.P-1 with the land owners on 8.5.2009 , in which, it was agreed between the parties that the compensation to the tune of Rs.25000/- would be paid to the land owners and it was also agreed in the second agreement that Rs.25000/- per month being the compensation would be paid to the land owners. If the developer failed to complete the construction within four months from the date of new agreement in case of shop rooms and two years in case of the whole building, but the O.P-1 though handed over the shop room measuring 60 sq.ft to the complainant-1 but has not yet taken proper steps to register the deed of conveyance with respect to that shop room in favour of the complainants.

            It is also fact that complainant-2 though lawfully should get possession of a shop room of 90 sq.ft as per agreement as mentioned above, but o.P-1 did not deliver the same till the date of hearing of argument.

            Ld. Advocate for the O.P-1 in the written version has stated that the complainants  along with other 9 co-owners (stated in para 7 of the written version that complainant along with other 9 co-owners) are jointly entered into the Development Agreement and as per that agreement they are entitled to get two self contained flats and four shop rooms in the building as owners’ allocation. Therefore, the developer shall have no power and authority to register the deed of conveyance in favour of the co-owners.

            Considering the facts and circumstances firstly we are of the opinion that the cause of action and the schedule of property and the prayers of the complainant nos. 1 and 2 are different . It is settled principle of Law that a complaint case should be filed by a single complainant and single complaint case filed by more than one complainants are allowed when cause of action, the goods or the services in question and the prayers are same. As the C.P Act 1986  is a benevolent legislation to protect the consumer against the deficiency in service and unfair trade practice of the unscrupulous service providers and/or seller, therefore,  considering the balance of convenience and inconvenience we have decided to consider the case of the complainant -2 only. It is also pertinent to mention that the complainant on the date of hearing of argument prayed for aforesaid part relief.

                        Now, to consider the case of the complainant-2 admittedly the shop room allocated for the complainant-2 has not been delivered to him within the stipulated period nor even till the date of hearing of argument of this case. Moreover, being he Power of Attorney holder for all the landowners execution and registration have not been performed with respect to the property in question.

            In this regard we are highlighting the landmark judgment of the Hon’ble Apex Court against Lucknow Development Authority where the Hon’ble Apex Court has been pleased to observe that delay in delivery of possession and also delay to execute and register the deed of conveyance in favour of the intending consumer amounts to deficiency in rendering services of the developer and also delay to execute and register the deed of conveyance by the developer and the land owners is also deficiency in service and complainant is eligible to be aptly compensated for this delay.

            In the complaint case, the case is only filed against developer O.P-1 and one of the land owners is O.P-2 namely Sri Krishnakanta Sarkar. But to execute and register the deed of conveyance  of the shop room in question allotted for the complainant-2, all the land owners are necessary parties as vendors. But it is also fact that O.P-2 has given power of attorney for the same. However, being the District Consumer Forum which is under the C.P Act, 1986,a benevolent legislation, we are of the opinion to give relief to the complainant-2 in the complaint case as developer entered into an agreement with the complainant -2 and other land owners to hand over the shop room in question and as such he cannot shrug off its responsibility to give possession of the shop room in question measuring 90 sq.ft and also he has responsibility to take proper initiation to execute and register the deed of conveyance in fovaur of the complainant no.2 as an absolute owner of that shop room.

            Therefore, considering the four corners of the instant case we have no hesitation to hold that the O.P-1 was duty bound to delivery possession and to take action to execute and register the deed of conveyance so that the  complainant-2 can be the absolute owner of the shop room in question and being one of the land owners O.P-2 should not shrug off his responsibility to put his signature to execute and register the deed of conveyance and to initiate the proper action so that the deed of conveyance in question could be executed and registered in favour of the complainant-2 as he has the Power of Attorney of other co-sharers.

            Another point should be discussed regarding compensation as per agreement dated 8.5.2009 and compoainant-2 is entitled to receive 1/9^th share of that compensation as agreed between the parties in that agreement dated 8.5.2009.

            Therefore, we have no hesitation to hold that O.P nos. 1 and 2 are liable for deficiency in rendering services towards the complainant no.2. It is needless to be mentioned here that for the inaction and deficiency in service of the O.P-1, complainant has to suffer financial loss, tremendous mental agony and harassment and he is liable to be compensated aptly by the developer ,O.P-1.        

            Thus all the points are discussed and the case of the complainant no.1 is dismissed without cost for want of power to adjudicate his case by this Forum in this complaint case and the case of the complainant-2 is allowed in part with cost.

            Thus all the points are discussed and the same are in favour of the complainant no.2 and complaint case succeeds in part.

            Hence,

                                                                                    Ordered

That the case  of the complainant no.2 be and the same is allowed on contest against the O.Ps and the case of the complainant-1 is dismissed without cost against the O.Ps with liberty to file separate case afresh before this Forum or any competent court of Law on self same cause of action.

The O.P-1 is directed to pay the amount of proportionate share of compensation amount as agreed between the parties to the complainant no.2 and also directed to hand over possession of the shop room of 90 sq.ft as per agreement dated 8.5.2009 by and between the parties within 45 days from the date of this order.

The O.P-1 is also directed to pay compensation to the tune of Rs.20,000/- and cost of Rs.5000/- to the complainant no.2 within 45 days from the date of this order.

Both the O.Ps are directed to take necessary steps to execute and register the deed of conveyance in favour of the complainant-2 in respect of the allocated shop room in question so that complainant-2 be the sole owner of the same.

All the order should be complied with within   45 days from the date of this order, failing which, both the O.Ps jointly and/or severally shall pay Rs.50/- per day after the completion of the stipulated period till the full and compliance of this order in its entirety.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

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

 

Member                                   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  of the complainant no.2 be and the same is allowed on contest against the O.Ps and the case of the complainant-1 is dismissed without cost against the O.Ps with liberty to file separate case afresh before this Forum or any competent court of Law on self same cause of action.

The O.P-1 is directed to pay the amount of proportionate share of compensation amount as agreed between the parties to the complainant no.2 and also directed to hand over possession of the shop room of 90 sq.ft as per agreement dated 8.5.2009 by and between the parties within 45 days from the date of this order.

The O.P-1 is also directed to pay compensation to the tune of Rs.20,000/- and cost of Rs.5000/- to the complainant no.2 within 45 days from the date of this order.

Both the O.Ps are directed to take necessary steps to execute and register the deed of conveyance in favour of the complainant-2 in respect of the allocated shop room in question so that complainant-2 be the sole owner of the same.

All the order should be complied with within   45 days from the date of this order, failing which, both the O.Ps jointly and/or severally shall pay Rs.50/- per day after the completion of the stipulated period till the full and compliance of this order in its entirety.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

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

 

Member                                   Member                                                                                   President