West Bengal

South 24 Parganas

CC/282/2015

Sri Biswanath Naskar, S/O Late Narendra Nath Naskar. - Complainant(s)

Versus

1. Sri Himadri Sekhar Saha, S/O Sri Himangshu Kumar Saha. Proprietor of M/S. M.S. Construction. - Opp.Party(s)

Debarshi Sarkar.

16 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _282_ OF ___2015_

 

DATE OF FILING : 12.6.2015                     DATE OF PASSING JUDGEMENT:  16.09.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Sharmi Basu 

                                                                             

COMPLAINANT        :    Sri Biswanath Naskar, s/o late Narendra Nath Naskar, 69, Banerjee Para Lane, Kolkata – 31, P.S. Kasba.

 

-VERSUS  -

 

O.P/O.Ps                            :     1.    Sri Himadri Sekhar Saha,s/o Sri Himangshu Kumar Saha , Prop. Fo M/s. M.S. Construction of 188/78, Pricne Anwar Shah Road, P.S. Lake, Kolkata – 45.

                                               2.     Smt. Alaka Ghosyh,w/o late Prakash Chandra Ghosh

                                               3.    Sri Prabir Ghosh,s/o late Sarat Chandra Ghosh

                                               4.    Sri Prasanta Kumar Ghosh,s/o late Sarat Chandra Ghosh

                                               2 to 4 are of 12, Dhakuria Station Lane, P.S. Jadavpur, Kolkata – 31.

Proforma O.P                     :    5.    Dhakuria Co-operative Bank, 68, Tanupukur Road, P.S. Garfa, Kolkata – 31.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Sharmi Basu, Member

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the allegation that O.P-1 is the developer ,who developed the land of the O.P nos. 2 to 4, measuring 3 cottah 3 chittak and 23 sq.ft at premises no.12, Dhakuria Station Lane, Kolkata -31, on the basis of a Development agreement dated 22.1.2010 . The O.P nos. 2 to 4 also authorized the O.P-1 to enter into agreement for sale with the third party. Accordingly complainant entered into an agreement for sale with the O.Ps on 27.10.2010 in the respect of the schedule flat on the south side of ground floor measuring 275 sq.ft at a consideration of Rs.2,65,000/-,out of which complainant paid Rs.80,000/- and he is ready and willing to pay Rs.1,85,000/- at the time of execution and registration of the deed of conveyance of the schedule flat. Complainant also paid Rs.95000/- to the O.P-1 as per instruction of the O.P-1. Complainant requested the O.p-1 to execute and register the deed of conveyance in respect of schedule flat after taking Rs.90,000/- ,but the O.P-1 delay the matter. Complainant also sent legal notice dated 9.4.2015  for handing over possession and registration of the flat taking the balance amount but the O.Ps failed and neglected to perform their part as per agreement for sale. The O.P-1 in reply to the said legal notice informed the complainant that the said property was mortgaged to the O.P-5 and schedule property has already been encumbered by the O.P-1 with the O.P-5 for which it is not possible for the complainant to purchase the flat in its present state. So, the act of the O.P-1 is an unfair trade practice. Hence, this case praying for direction upon the O.P-1 to repay the loan and to convey the property in his favour, alternatively to refund Rs.1,75,000/- with interest 24% , compensation of Rs.2 lacs and cost.

Proforma O.P-5 filed written version  denying all the allegations ,contending inter alia that case is not maintainable against this O.P. The positive case of the O.P-5 is that O.P-1 had never taken loan from that bank  and complainant made false allegations in the complaint. Accordingly O.P-5 prays for dismissal of the case.

            The other O.Ps did not contest the case filing written version, for which case is running against them in exparte.

           

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.

Before entering into the merits of the case it is needed to be mentioned here that even after valid service of summon to all the O.Ps none appears to move the case and this Forum has no other alternative but to proceed the instant case in exparte against all the O.Ps.

From the record in its entirety after hearing the case of the complainant from the Ld. Advocate of the complainant it is crystal clear that complainant has booked a flat within the territorial jurisdiction of this Forum and paid in installments Rs.1,65,000/- towards the consideration of the flat in question as per agreement for sale dated 27.10.2010  . But till today even after repeated requests followed by legal notice the O.P nos. 1 to 4 neither handed over possession nor executed and registered the deed of conveyance in respect of the flat in favour of the complainant.

Complainant booked the flat from the O.p-1 by paying consideration towards the flat in question and therefore, he is a consumer under section 2(1)(d)(ii) of the C.P Act and O.P nos. 1 to 4 are service providers under section 2(1)(o) of the C.P Act 1986.

It is well settled principle of law that delay in delivery of possession and/or delay to execute and register the deed of conveyance in respect of the flat or plot in question in fovaur of the complainant/consumer amounts to deficiency in service and without hesitation it is opined that the O.P nos. 1 to 4 are jointly and/or severally liable for deficiency in rendering services . It is also beyond doubt that due to the deficiency in rendering services of the O.P nos. 1 to 4 complainant has to suffer tremendous mental agony, harassment and also financial loss and he is eligible to be aptly compensated by the O.P nos. 1 to 4.

Regarding the relief towards the complainant it is observed that complainant has prayed for direction upon the O.Ps to hand over the possession and to execute and register the deed of conveyance or to refund the paid amount of Rs.1,75,000/- towards the consideration of the suit flat. In this regard we are of the opinion that to avoid further complication it is decided by this Forum to give order upon the O.P no.1 to refund the consideration amount as he being the developer has received the consideration amount of the flat in question from the complainant.

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

 

 

 

 

            Hence,

                                                            Ordered

That the case be and the same is allowed in part in exparte with cost against the O.P no. 1  and without cost against O. nos. 2 to 5 .

O.P no.1 is directed to refund Rs.1,75,000/- to the complainant and to pay compensation of Rs. 2 lacs (two lacs) , cost of Rs.5000/- to the complainant  within 45 days from the date of this order, failing which interest will carry @10% p.a upon the total decreetal amount from the date of default till its realization.

No effective order is passed against the other O.Ps except O.P-1.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       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 in part in exparte with cost against the O.P no. 1  and without cost against O. nos. 2 to 5 .

O.P no.1 is directed to refund Rs.1,75,000/- to the complainant and to pay compensation of Rs. 2 lacs (two lacs) , cost of Rs.5000/- to the complainant  within 45 days from the date of this order, failing which interest will carry @10% p.a upon the total decreetal amount from the date of default till its realization.

No effective order is passed against the other O.Ps except O.P-1.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                       Member                                                                President