West Bengal

South 24 Parganas

CC/45/2015

Smt. Rita Banerjee, Wife of Sri Ratan Kumar Banerjee. - Complainant(s)

Versus

1. Sri Tarun Kanti Roy, S/O Late Gopal Das Roy. - Opp.Party(s)

Apares Pal.

05 Aug 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

         C.C. CASE NO. _45_ OF ___2015_

 

DATE OF FILING : 22.1.2015                        DATE OF PASSING JUDGEMENT:  5.8.2015___

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT              :  Smt. Rita Banerjee,w/o Sri Ratan Kumar Banerjee of 5/37A, Netaji Nagar,

          P.S. Netaji Nagar, Kolkata – 40.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.     Sri Tarun Kanti Roy, s/o late Gopal Das Roy of   5/37A, Netaji Nagar,

          P.S. Netaji Nagar, Kolkata – 40.

 

                                              2.     Sri Ashish Banerjee,s/o Juran Banerjee of 5/44, Netaji Nagar, P.S. Jadavpur,

          Kolkata – 40. 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Jinjir Bhattacharya, Member

 

            The complainant agreed to purchase a flat from the O.P no.2 in the second floor in a habitable condition in the prospective three storied building on the landed property owned by the O.P no.1 at 5/37A, Netaji Nagar, P.S. Netaji Nagar, Kolkata – 40 in terms of a verbal agreement at a valuable consideration of Rs.6,00,000/- . The ‘Suit flat’ has been fully described in Schedule B of the complaint petition. The complainant paid the entire amount of consideration on different dates in installments with effect from 09.05.2000. She was given possession of the suit flat in the year 2005. Since then she has been continuously reminding the O.P-1 and the O.P-2 to get the deed of conveyance in respect of the suit flat executed and registered in her favour but the O.Ps have been avoiding to comply with the requests of the complainant. Lawyer’s notice issued on 14.07.2014 to the O.P for execution and registration of the Deed of Conveyance in respect of the suit flat in favour of the complainant also yielded no result. Hence, this case.

            The O.P-1 did not take part in the proceedings and the case proceeded exparte against him. The O.P-2 ,however, contested the case by filing a written version challenging all material allegations against him and submitting that he has complies with the terms and conditions of the agreement with the complainant and he is willing and ready to get registration of the deed of conveyance in respect of the suit flat as confirming party. The O.P-2 further submits that he is not liable for registration of deed of conveyance in favour of the complainant and everything goes to the O.P-1 for registration of deed of conveyance. Denying any deficiency on his part, the O.P-2 has prayed that he is not liable to pay any compensation  or litigation cost to the complainant.

            In the BNA filed by the complainant it is contended that the O.P-1 is the absolute owner of the suit property and in order to develop the said property by way of construct6ion of a new building thereon, the O.P-1 entered into an agreement with the O.P-2, the Proprietor of a firm namely C.B CON. The O.P-1 also

 

 

executed a Notarial Power of Attorney on 11.09.1997. By a verbal agreement the complainant agreed to purchase and the O.Ps agreed to sell entire second floor of three storied building in the landed property of O.P-1 at a total consideration of Rs.600,000/- which the complainant started to pay with effect from 9.5.2000 and the complainant paid entire consideration money by June, 2005. Entire consideration money of Rs.600,000/- was paid to the O.P-2 on different dates and installments being the constituted attorney of O.P-1 and since the general power of attorney is not registered, the onus  of completion of the transaction lies equally on both the O.Ps. The complainant having been in possession of the suit flat since 2005 and consuming all services rendered by the KMC and paying KMC taxes since 2005 and paying CESC bills against electric meter in her name ,continuously reminded the O.Ps for executing and registering the deed of conveyance n her favour in respect of the suit flat . It has further been submitted that the complainant requested the O.Ps for execution and registration of the deed of conveyance through her advocate Sri Aparesh Pal on 14.7.2014. It is argued that under the C.P Act, 1986, the complainant is entitled to the reliefs sought for because there is deficiency in service on the part of the O.Ps.

            The O.P no.2 who is the developer of the landed property of O.P-1 and who hold general power of attorney from the O.P-1 with effect from 11.9.1999 has not filed any BNA , but took part in the argument. The O.P-2 submitted  that he is ready and willing to execute and cause registration of the deed of conveyance in favour o the complainant in respect of the suit flat as a confirming party. It is further submitted that he has done in his duties according to the terms and conditions between him and the complainant.

            Considered the submissions of the complainant and the O.P-2. Perused the petition of complaint and written version of O.P-2 and seen the documents filed by the complainant.

            We find that there was no agreement in writing  between the complainant and the O.P . It is the admitted position that in  terms of a verbal agreement, the complainant agreed to purchase entire flat in the second floor of a three storied building proposed to be constructed in the landed property of the O.P-1 by the developer O.P-2 on payment of consideration money of Rs.600000/- . It is also an admitted position that the complainant has already paid full consideration money of Rs.600000/- . it is a further admitted position that possession of the suit flat was given to the complainant sometimes in the year 2005 and that the complainant obtained electric meter from the CESC in that flat and has been paying municipal taxes since 2005 to the KMC. But the O.,Ps are avoiding execution and registration of the deed of conveyance in favour of the complainant. Thus, there was deficiency in rendering services to the complainant on the part of the O.Ps and for the negligent acts of the O.Ps, the complainant had to suffer a lot from mental agony and harassment. The complainant is required to be compensated by the O.Ps for the mental agony and harassment caused to her.

            In the light of the findings as above, we hold that the petition of complaint shall be allowed and

 

 

 

 

 

 

 

 

 

Hence,

                                                                                    ORDERED

That the petition of complaint is allowed on contest against the O.P no.2 and exparte against the O.P-1 in part.

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the suit flat within 45 days from this order.

The O.Ps are directed jointly and severally to pay Rs.1,00,000/- to the complainant as compensation by account payee cheque in favour of the complainant  within 30 days from the date of this order failing which interest @8% p.a shall be payable thereon from the date of default till realization.

In the circumstances of the case, there will be no order as to costs.

Let a plain copy of this order be supplied to the parties free of cost.

 

Member                                                           Member                                               President

Dictated and corrected by me

 

                        Member

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

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

 

ORDERED

That the petition of complaint is allowed on contest against the O.P no.2 and exparte against the O.P-1 in part.

The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant in respect of the suit flat within 45 days from this order.

The O.Ps are directed jointly and severally to pay Rs.1,00,000/- to the complainant as compensation by account payee cheque in favour of the complainant  within 30 days from the date of this order failing which interest @8% p.a shall be payable thereon from the date of default till realization.

In the circumstances of the case, there will be no order as to costs.

Let a plain copy of this order be supplied to the parties free of cost.

 

Member                                                           Member                                               President