West Bengal

South 24 Parganas

CC/215/2015

Mehebubul Haque, S/O Anarul Haque. - Complainant(s)

Versus

1. Sri Krishnendu Dey Sarkar, S/O Late Dr. Gurudas Dey Sarkar , Sole Proprietor of M/S Nirman. - Opp.Party(s)

Md. Liakat Ali.

09 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _215_ OF ___2015_

 

DATE OF FILING : 6.5.2015                       DATE OF PASSING JUDGEMENT:  9/08/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Subrata Sarker

                                                                             

COMPLAINANT             :  Mehebubul Haque,s/o Anarul Haque of Sekh Para, Ranar, Aakunjipada, Ward no.9 , Bishnupur, Bankura Pin-722122

 

-VERSUS  -

 

O.P/O.Ps                            :  1. Sri Krishnendu Dey Sarkar,s/o late Dr. Gurudas Dey Sarkar ,Sole Prop. Of M/s Nirman Construction of 3, North Sreerampore Road, Garia,P.S. Jadavpur, now Patuli, Kolkata – 84

                                              2.     Smt. Jaya Dutta, w/o late Shyamal Dutta of 69A, Bansdroni Park, P.S. Regent park, Kolkata – 70.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            The short case of the complainant is that he made an agreement for sale which was executed by the O.Ps on 10.2.2014 ,wherein developer agreed to sell a flat measuring 550 sq.ft on the  ground floor of the building at premises no.127, Bansdroni park, Kolkata – 70  at a total consideration of Rs.10 lacs and the complainant was also agreed to the said consideration and complainant also paid a sum of Rs.2 lacs through cheque no. 543221 of Canara Bank and Rs.1 lac by cash on 10.2.2014 to the O.P-1. Thus the balance amount is Rs.4,80,000/- which was agreed to be paid to the developer within 45 days from the date of payment as second installment by the complainant. It has further stated that complainant also requested the O.P-1 to hand over the photocopy of the documents like completion certificate granted by the KMC , power of attorney executed by the legal heirs of Shyamal Dutta  ,since deceased, building sanctioned plan, up to date tax clearance certificate for the purpose of getting the clear picture of the aforesaid flat as well as for applying for loan from the Bank . But the developer did not comply the same and he is in dark about the activities of the developer which amounts to deficiency of service . Hence, this case with a prayer to the developer , O.P-1 to refund the consideration money of Rs.5,20,000/-  which he has already paid as per agreement dated 10.2.2014 as well as directing the O.Ps to pay compensation to the tune of Rs. 3 lac for suffering serious mental agony and litigation cost of Rs.25000/-.

            The case is running in exparte against the O.P-2 , the substituted land owner.

            The O.P-1 filed written version and has denied all the allegations leveled against them. It is the contention of the O.P-1 that the complainant failed to pay the agreed amount in terms of the agreement. So, there is no deficiency of service and prays for dismissal of the case.

            Points for consideration in this case is whether there is any deficiency in service on the part of the O.Ps or unfair trade practice adopted by the O.ps or not.

 

 

                                                                        Decision with reasons

            At the very outset we find from the brief notes of argument filed by the O.P-1 that O.P-1 is ready to sell the said flat at the cost of Rs.10 lacs which was agreed but the complainant will not get any opportunity of taking loan from any financial institution. So, if the complainant paid the balance amount in cash then O.P-1 is ready and willing to execute the same.

            Here in the instant case we find that for the reasons best known to the complainant he did not pay the entire money to the O.P. Probably he was not able to pay the balance consideration money without taking assistance from the financial authority, wherein the O.P has objection . Probably the O.P-1 had or have no such satisfactory documents ,which will be verified by the financial institution at the time of disposing of the loan amount ,that is why O.P-1 filed Brief Notes of Argument and at the time of argument expressed their willingness to execute the deed of conveyance subject to payment of cahs amount of Rs.4,20,000/-. But fact remains prayer of the complainant is only for refund of consideration money which they have paid i.e. Rs.5,20,000/- . No alternative prayer is there in order to get the deed of conveyance.

            This circumstances clearly suggest that complainant is aware that this building constructed by the O.P has no proper title  ,that is why, complainant wanted to get back the amount already paid for getting the flat in dispute.

            Considering all circumstances we find non-submission of the required documents which was asked by the complainant to the O.P-1 amounts to deficiency of service, for which, complainant has rightly wanted to get back Rs.5,20,000/- and in order to satisfy this Bench , complainant has relief a decision of the Hon’ble National Commission reported in 2010(2) CPR in connection with the amount of compensation , wherein the Hon’ble National Commission has observed that  Consumer in arriving at the assessment of compensation has to first assess the gravity of deficiency and thereafter calculate loss, mental agony, harassment that a complainant may have undergone as a direct consequence of the said deficiency.

            Here, in the instant circumstances we also find that one innocent complainant wanted to get his shelter and thereby already handed over Rs.5,20,000/- and thereafter demanded the documents which are required for getting the loan from any financial organization. But the O.P withheld the same, may be , the O.P has no such legal documents so that the loan can be sanctioned by the financial authority. But it ought to have disclosed before executing the agreement for sale and accepting the money from the complainant. But inevitable part was not acted upon or performed by the O.P-1 to grab the good money of the complainant. This is undoubtedly the gravity of deficiency of service which has been observed by the Hon’ble National Commission and if we overlook all these circumstances and impose very minimum compensation, then this type of act of unruly O.P/developer will be prevailed in the society at large, that is why, we find that due to non-supply of the documents as asked for by the complainant  undoubtedly he has to undergone a direct consequence of the said deficiency and as a result he did not get the said flat and also restrained himself from demanding the said flat which was the hope and shelter of the complainant. But instead of that he only demanded money paid by him as well as compensation and litigation cost.

 

 

            Considering the totality of the circumstances it is,

                                                                                                            Ordered

That the application under section 12 of the C.P Act,1986 is allowed on contest against O.P-1 and dismissed exparte O.P-2.

O.P-1 is directed to refund Rs.5,20,000/- along with interest @9% p.a on and from 10.2.2014 till its realization, within 30 days from this date.

O.P-1 is hereby directed to pay compensation to the tune of Rs. 3 lacs for causing serious mental agony and harassment suffered by the complainant as well as litigation cost of Rs.2000/- to the complainant within 30 days from this date, failing which, complainant is at liberty to execute the order through this Bench in a separate execution proceedings.

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                                               Member                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,         

 

Ordered

That the application under section 12 of the C.P Act,1986 is allowed on contest against O.P-1 and dismissed exparte O.P-2.

O.P-1 is directed to refund Rs.5,20,000/- along with interest @9% p.a on and from 10.2.2014 till its realization, within 30 days from this date.

O.P-1 is hereby directed to pay compensation to the tune of Rs. 3 lacs for causing serious mental agony and harassment suffered by the complainant as well as litigation cost of Rs.2000/- to the complainant within 30 days from this date, failing which, complainant is at liberty to execute the order through this Bench in a separate execution proceedings.

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                                               Member                                                                       President