West Bengal

South 24 Parganas

CC/416/2015

Smt. Kalpana Kar, Wife of Late Sushil Kar. - Complainant(s)

Versus

1. Sri Narayan Chandra Saha. S/O Late Bhuban Mohan Saha. - Opp.Party(s)

Apares Pal.

20 Sep 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _416   OF ___2015____

 

DATE OF FILING : 15.9.2015     DATE OF PASSING JUDGEMENT:  20.09.2016 __

 

Present                        :   President       :   Udayan Mukhopadhyay                           

 

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

 

COMPLAINANT                  :  Smt. Kalpana Kar,w/o late Sushil Kar of 11/E, Deshbandhu Road, P.S. Netaji Nagar (formerly Jadavpur thereafter Patuli), P.O Jadavpur, Kolkata – 92. At present residing at Flat on the First Floor of 2/62, Vidyasagar Colony, P.S. Netaji Nagar, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                                :     1.   Sri Narayan Chandra Saha

                                                     2.   Sri Khitish Chandra Saha

                                                     3.    Sri Samiran Chandra Saha

                                                     4.     Sri Sakti Pada Saha

                                                    All sons of Bhuban Mohan Saha of 69/1/2/59, Raja S.C. Mullick

     Road, P.S. Netaji Nagar, Kolkata – 47.

     5.      Smt. Uma Saha,w/o Sri Tapan Saha of E/19, Bapuji Nagar, P.S. Netaji Nagar, Kolkata – 92.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that by dint of an Indenture dated 10.3.1989 O.P nos. 1 to 4 become the owner of the property being premises no. 2/62, Vidyasagar Colony, P.S. Netaji Nagar, Kolkata -92. The O.P nos. 1 to 4 entered into a Development Agreement with the O.P-5 for development of the said property  and also executed a General Power of Attorney in favour of the O.P-5 on 2.3.2007 . Thereafter, coming to know of the said prospective building on the said property the complainant entered into an agreement for sale on 12.8.2008   with the O.P-5 for purchasing a flat on the first floor south eastern side of the said building measuring an area 1200 sq.ft super built up area at a total consideration of Rs.12, 50,000/- which the complainant paid to the O.P-5 and complainant is in possession of the said flat . Complainant requested several times to the O.Ps for execution and registration of the deed of conveyance in respect of the said flat for transferring the suit property in her favour but it yielded no result. Hence, this case, praying for execution and registration of the deed of conveyance in her favour , compensation of Rs.5 lacs, cost of Rs.25000/- etc.

            Inspite of serving summons upon the O.P nos. 1 to 4, none appears to contest the case, for which case is proceeding in exparte against them.

            O.P-5 contested the case by filing written version denying all the material allegations contending inter alia that she is always ready  and willing to execute and register the deed of conveyance in favour of the complainant. O.P-5 prays for rejection of the complaint with cost.

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

            Before entering into the merits of the case it is pertinent to mention here that even after valid service of notices upon O.P nos. 1 to 4 they have not turned up and this Forum has no other alternative but to adjudicate the case in exparte against O.P nos. 1 to 4 and all the documents brought by the complainant before this Forum and the allegations as raised against the O.P nos. 1 to 4 by the complainant have been considered as true being unchallenged piece of testimony.

            All the points are taken together as they are interlinked.

             We have perused the records in its entirety and heard in full from the Ld. Advocates for the complainant and the OI.P-5  and it appears from the records that admittedly complainant has entered into an agreement for sale with the O.P-5 ,developer, for purchasing a flat in a premises situated at the land of O.P nos. 1 to 4. It is also admitted fact that the complainant has paid full consideration money towards the suit flat amounting to Rs.12,50,000/-  and complainant is in possession of the said flat.

            However, from the above discussion it is crystal clear that complainant is the intending consumer of the O.Ps under section 2(1)(d)(ii) of the C.P Act, 1986. Thus point no.1 is discussed and the same is in favour of the complainant.

            From the record and also hearing at full length from the Ld. Advocates of the complainant and the O.P-5 it is clear that the O.Ps have not executed and registered the deed of conveyance in respect of the flat of the complainant till the date of hearing of argument.

            In this regard it is needed to be mentioned that it is settled principle of Law as the Hon’ble Apex Court has been pleased to observe in the case against Lucknow Development Authority that when any developer and/or the land owners have received consideration as a whole or in part from any intending purchaser towards the flat or developed plot ,they are duty bound to execute and register the deed of conveyance in favour of that intending purchaser and delay in performing the same amounts to deficiency in rendering services on their part towards the complainant/intending consumer.

            Keeping in mind the aforesaid remarkable decision of the Hon’ble Apex Court we have no hesitation to hold that  in the instant case even after receiving the entire consideration money for the suit flat from the complainant since the developer has not taken proper initiative to execute and register the deed of conveyance in favour of the complainant we find that the developer is obviously liable for inaction and deficiency in rendering services towards the complainant/consumer and for this inaction and deficiency in services on the part of the O.P-5 complainant has not only faced tremendous mental agony and harassment but also financial loss as he has to bear expenses much more amounts for stamp duty at the time of execution and registration of the deed of conveyance and as per above discussion complainant should be aptly compensated by the O.P-5 developer.

            It is also pertinent to mention that being land owners giving selling power to the developer O.P-5  for the flat in question  in the premises situated at the land of the O.P nos. 1 to 4, they are also duty bound to execute and register the deed of conveyance in favour of the complainant and they have also committed deficiency in rendering services  by not doing the same.

            In light of the above discussion we have no hesitation to hold that complainant has successfully established his complaint case and she is eligible to get relief as prayed for in part.

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

            Therefore, the complaint case succeeds.

            Hence,

                                                                        Ordered

That  the case be and the same is allowed on contest against O.P-5 with cost and exparte without cost against O.P nos. 1 to 4.

All the O.Ps are directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant,  as per scheduled of the subsequent agreement for sale within 30 days from the date of this order.

O.P-5 is also directed to pay Rs. 3 lacs  and cost of Rs.5000/- to the complainant within 30 days from the date of this order, failing which each of the O.Ps have to pay Rs.50/- per day  ,out of which 50% of the amount will be paid to the complainant and 50% amount will be deposited in the Consumer Legal Aid Fund.

Complainant is at liberty to execute the order through execution case after the stipulated.

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 be and the same is allowed on contest against O.P-5 with cost and exparte without cost against O.P nos. 1 to 4.

All the O.Ps are directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant as per subsequent agreement for sale within 30 days from the date of this order.

O.P-5 is also directed to pay Rs. 3 lacs  and cost of Rs.5000/- to the complainant within 30 days from the date of this order, failing which each of the O.Ps have to pay Rs.50/- per day  ,out of which 50% of the amount will be paid to the complainant and 50% amount will be deposited in the Consumer Legal Aid Fund.

Complainant is at liberty to execute the order through execution case after the stipulated.

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

 

Member                                   Member                                                                                   President