West Bengal

South 24 Parganas

CC/439/2015

Sri Anil Chandra Das, S/O Late Baikuntha Das. - Complainant(s)

Versus

1. Sri Susovan Guha, Proprietor of Samprity Enterprise. - Opp.Party(s)

01 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _439_ OF ___2015_

 

DATE OF FILING : 30.9..2015                    DATE OF PASSING JUDGEMENT:  _1.3_.2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :    Sri Anil Chandra Das, s/o late Baikuntha Das of 98/3, Regent Colony, P.S. Jadavpur, Kolkata – 40.

 

-VERSUS  -

 

O.P/O.Ps                            :     1. Sri Susovan Guha, Prop. Of Samprity Enterprise of 8, Babu Ram Ghosh Road, P.S. Regent Park, Kolkata – 40.

 

Proforma O.Ps                   :  2.    Sri Goutam Kumar Ghosh

                                              3.    Sri Pradip Kumar Ghosh

                                              4.    Debashis Kr. Ghosh

                                               5.   Sri Bidrohi Kumar Ghosh

                                             All sons of late Pradyot Kumar Ghosh

                                               6.   Smt. Keya Ghosh

                                                7.   Smt. Sikha Ghosh Chowdhury, both daughters of late Pradyot Kumar Ghosh

                                              All of 3/1, Babu Ram Ghosh Road, P.S. Regent Park, Kolkata – 40.

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that O.P-1 is the developer and the O.P nos. 2 to 7 are the land owners and complainant was using and occupying a shop room measuring about 84 sq.ft on the ground floor of premises no.3/1, Babu Ram Ghosh Road, P.S. Regent Park, Kolkata – 40  as a lawful tenant initially under the predecessor in interest of the present landlords and after his demise under them. From the said shop room complainant carried on tailoring business which is the only source of earning his livelihood. It is the further case of the complainant that  in the month of July 2014 O.P-1 approached the complainant and represented that he has entered into a development agreement with the landlords i.e.O.P nos. 2 to 7 for development of the subject premises and further represented that after construction of the proposed building they will hand over a shop room of equal measurement to the complainant and would also register a deed of conveyance in favour of the complainant for a nominal consideration, to which complainant agreed and entered into an agreement for sale on 1.8.2014 with the O.P-1 ,duly registered before the ADSR Alipore. Under the said agreement for sale O.P-1 will sell a shop room of equivalent measurement and at the same location in the proposed building for a total consideration of Rs.10,000/- which complainant duly paid to the O.P-1 and complainant handed over possession of his shop room ot the O.P-1 on 19.11.2014 and O.P-1 demolished the same for new construction. It is the further case of the complainant that prior to handing over possession of the said shop room O.P-1 specifically agreed that they would provide temporary accommodation at his own cost for keeping the goods and running complainant’s shop at the backside o the said shop room of the complainant. O.P-1 also agreed to pay damages which may be suffered by the complainant for change of accommodation. It has alleged by the complainant that O.P-1 did not comply the said terms and conditions of the agreement for sale for which complainant is unable to run his shop which is the only source of his livelihood which was expressed in writing on 22.12.2014 with a request to hand over possession of the shop room but O.P-1 did not pay any heed to it. Accordingly complainant claims that he is a bonafide consumer afer payment of consideration money of Rs10,000/-. The registered agreement was entered into on 1.8.2014 but it appears from annexure B that on 17.11.2014 the proprietor of O.P-1 Susovan Guha in writing undertakes to provide temporary possession so that complainant can run his business . But nothing was arranged. Hence, this complaint .

O.P nos. 2 to 7 are not contesting the case inspite of serving summon upon them.

The O.P-1 contested the case by filing written version denying all the material allegations leveled against him. It is the case of the O.P-1 that case of the complainant is partly true and partly denied since registered portion of the shop room is approximately 84 sq.ft but total area of the shop room is approximately 125 sq.ft and it is committed by the complainant to pay the extra amount as per market price to the O.P for about 50 sq.ft It is the further case of the O.P-1 is that he is a peace living and Law abiding innocent person and has honest intention to comply the shop room of the complainant but due to sudden financial crisis the O.P could not complete the same in time and undertake to hand over the complete possession of the shop room to the complainant within 2 months from the date of filing of the written version i.e. 2.3.2016 and prays for passing necessary order otherwise O.P-1 shall suffer irreparable loss and injury.

This written version is supported by an affidavit.

Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.

                                                            Decision with reasons

Admittedly complainant was a tenant in the shop room and admittedly registered deed of agreement was executed on 1.8.2014 between the parties wherein the land owners were made a confirming party. So, the terms of the agreement is binding upon the parties , particularly when this is a registered instrument ,that is why probably land owners are very much reluctant to appear in this case as the case of the complainant is now unchallenged testimony at least for the land owners. But fact remains O.P-1 b y filing written version made a concocted story that although the measurement was 84 sq.ft but at the commitment of the complainant it was 125 sq.ft . But there is no document to prove the same. So, it was the duty of the O.P-1 to confine himself with the terms and conditions of the registered deed of conveyance and we find from page 25 of the agreement for sale i.e memo of consideration which clearly demonstrates that full and final consideration money has already been received to the tune of Rs.10,000/-.  If that be so, O.P-1 had or have no claim against any excess sq.ft whatsoever and if the shop room is measuring more than 84 sq.ft ,then it is the voluntary desire of the O.P-1 to help the tailoring shop owner herein the complainant since the complainant is suffering for a considerable period for not getting the shop room inspite of his written undertaking after execution of the deed of conveyance.

After comparing the signature in Annexure B and the registered instrument we find in a naked eye that both the signatures are identical, that is on a moment scrutiny we find that complainant has been able to prove the case of deficiency of service and unfair trade practice of the O.P-1 for not complying the terms and conditions of the agreement for sale ,specially 7.1 which is binding upon the O.P-1 ,that is why, O.P-1 fled away after filing written version and he was debarred from filing questionnaire inspite of giving several opportunities and cost was also imposed against him to the tune of Rs.1000/- but the said cost was also not paid. This is another unfairness of the O.P-1 by not complying the direction of the Bench which is a judicial proceedings under section 13(5) of the C.P Act, 1986 .

In this backdrop when the O.P-1 fled away after filing written version , in a summary trial we have no other alternative but to give opportunity to the complainant for filing BNA to cut short the litigation of the complainant who is suffering for not getting the shop room and for not maintaining his livelihood being a tailor. So, tailoring shop is required for the livelihood of the complainant and by the act of the O.P bread and butter of the complainant has already been snatched away and sitting in a consumer court we cannot shut our eyes on the realities regarding the unruly activities of the developer/promoter prevailing in this city ,that is why, taking advantage from the poor complainant with the false assurance to hand over the shop room which has appeared in this case, amounts to deficiency of service.

Hence,

                                                                        Ordered

That the case is allowed on contest against O.p-1 and in exparte against O.P nos. 2 to 7.

The O.P-2 is hereby directed to hand over the peaceful possession of the shop room to the complainant within 30 days from the date of this order and thereafter to execute and register the deed of conveyance in respect of the said shop room in favour of the complainant within 15 from the date of possession of the shop room wherein the O.P nos. 2 to 7 , if not given registered power of attorney to the O.P-1, have to execute and register the deed of conveyance in favour of the complainant and in that deed O.P-21 shall stand as a confirming party. Thus all the episodes should be completed within 45 days .

The O.P-1 is directed to pay damages @ Rs.5000/- per month on and from 19.11.2015 till the date of handing over possession to the complainant within 45 days from the date of this order.

O.P-1 is also directed to pay compensation Rs.10,000/- and litigation cost Rs.5000/- to the complainant within 45 days from the date of this order.

If the O.P nos. 2 to 7 failed to execute and register the deed of conveyance within the time, then O.P nos. 2 to 7 has to pay litigation cost of to the tune of Rs.2000/- and compensation to the tune of Rs.10,000/- to the complainant but if the land owners O.P nos. 2 to 7 cooperate in the matter of registration by executing and registering the deed of conveyance then cost and compensation will not be paid by them.

The complainant is at liberty to execute the order through this bench after stipulated period is over.

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

                               

                        President

 

 

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

 

            Ordered

That the case is allowed on contest against O.p-1 and in exparte against O.P nos. 2 to 7.

The O.P-2 is hereby directed to hand over the peaceful possession of the shop room to the complainant within 30 days from the date of this order and thereafter to execute and register the deed of conveyance in respect of the said shop room in favour of the complainant within 15 from the date of possession of the shop room wherein the O.P nos. 2 to 7 , if not given registered power of attorney to the O.P-1, have to execute and register the deed of conveyance in favour of the complainant and in that deed O.P-1 shall stand as a confirming party. Thus all the episodes should be completed within 45 days .

The O.P-1 is directed to pay damages @ Rs.5000/- per month on and from 19.11.2015 till the date of handing over possession to the complainant i.e within 45 days from the date of this order.

O.P-1 is also directed to pay compensation Rs.10,000/- and litigation cost Rs.5000/- to the complainant within 45 days from the date of this order.

If the O.P nos. 2 to 7 failed to execute and register the deed of conveyance within the time, then O.P nos. 2 to 7 has to pay litigation cost of to the tune of Rs.2000/- and compensation to the tune of Rs.10,000/- to the complainant but if the land owners O.P nos. 2 to 7 cooperate in the matter of registration by executing and registering the deed of conveyance then cost and compensation will not be paid by them.

The complainant is at liberty to execute the order through this bench after stipulated period is over.

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