DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _331_ OF ___2015_
DATE OF FILING : 22.7.2015 DATE OF PASSING JUDGEMENT: 18.09.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Amarjyoti Roy, son of late Priyanath Roy.
- Smt. Sutapa Roy, wife of Sri Sujoy Roy
Both of 3/10, Poddar Nagar, Kolkata -68, P.S Jadavpur,
-VERSUS -
O.P/O.Ps : 1. M/s D.B.D Enterprise of F-5, Katju Nagar, Kolkata – 32, P.S Jadavpur
2. Sri Dilip Dey, son of late Gobardhan Dey of F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
3. Sri Biman Dey, son of late Gobardhan Dey, F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
4. Smt. Pushpa Dey, wife of late Gobardhan Dey of F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
5. Smt. Aruna Dey, daughter of late Gobardhan Dey of F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
6. Smt. Sampa Dey, daughter of late Gobardhan Dey of F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
7. Smt. Purnima Dey, son of late Gobardhan Dey of F-5, Katju Nagar, Kolkata- 32, P.S jadavpur.
______________________________________________________________________________
J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act 1986 filed by complainant on the ground that Developer O.P nos. 1 to 3 entered into an agreement for developing a land being premises no. F-5, Katju Nagar, P.S Jadavpur, Kolkata – 32 with the land owners O.P nos. 4 to 7.
Complainant also made an agreement for sale on 15th day of May, 2013 with the O.P nos. 1 to 3 by paying valuable consideration money against agreed amount of Rs.18,00,000/- only. It has also stated that in terms of the agreement developer promised to complete the entire consideration within 18 months from the date of agreement for sale. But the developer instead of delivery of the said flat is giving threat that if the complainant failed to pay the remaining amount then he will sell the said flat to the new purchasers. Complainant has already paid Rs.8,50,000/- out of Rs.18 lacs by cheque on different dates. Developers have also issued money receipt to that effect. Hence, this case for non-delivery of the possession and registration of the deed of conveyance and he has admitted that in terms of the agreement Rs.9,50,000/- will be paid as per mutual settlement in between the parties along with the progress of the construction, but before delivery of khas possession in favour of the purchasers herein as per agreement dated 15th May, 2013. He has filed this case with a prayer to deliver possession of the flat and to execute and register the deed of conveyance in respect of the flat , Rs.50,000/- compensation and cost , permanent injunction not to alienate the said flat to any other stranger purchasers.
The O.Ps are contesting the case by filing written version and have denied all the allegations leveled against them. It is the positive case of the O.Ps that there was no agreement as to which flat and/or on what floor the flat will be handed over to the complainant and complainant inspite of several requests failed to pay the balance consideration money within the time causing entire breakdown of the project. It has been claimed by the complainant for separate portion which has not been agreed to be sold at all. So, complainant violated the terms and conditions of the agreement and failed to discharge their liabilities and hence prays for dismissal of the case.
Points for decision in this case is whether the O.Ps acted deficiency in service or unfair trade practice not handing over the flat to the complainant or not.
Decision with reasons
Before entering into the merits of the case we have perused the agreement for sale in between the complainant and O.P nos. 1 to 3 wherein we find that terms of the payment has been specifically mentioned in para 2 at page 6, wherein we find that Rs.9,50,000/- will be paid as per mutual settlement in between the parties along with the progress of the construction but before delivery of khas possession. This terms is not specific, but evasive ,for which only complainant will take benefit of non-payment of the said Rs.9,50,000/- on a plea that there is no letter of khas possession etc.
Apart from that it has also mentioned that developers will hand over possession of the flat within 24 months from the date of execution of the agreement for sale. The agreement for sale was admittedly made on 15th day of May, 2013. So, can developer show any letter to the effect that he has informed the complainant in writing within 24 months from the date of the agreement that flat is in ready and pay entire money and take possession. Answer is no. Thus O.Ps have violated the contract and will not get benefit of the agreement for sale.
Now let us see which flat was agreed to be handed over. From the Schedule B at page 12 of the said agreement it has mentioned “Description of the said flat to be conveyed – all that piece and parcel of the flat on the first floor/ second floor south open flat measuring 750 sq.ft be and the same little more or less super built up area comprising two bed rooms ,one drawing room, dining room, two bath room, one kitchen, one balcony in the newly constructed building together with proportionate share etc.”.
Thus it has been specifically mentioned that flat measuring 750 sq.ft has to be delivered or handed over to the complainant either in the first floor or in the second floor but it should be south open comprising which we have stated above. Moreover, floor plan of the proposed building has already been handed over to the complainant and complainant has relied the same. So, the averment of the O.Ps in the written version is really unfortunate at para 20 that there was no agreement as to which flat and what floor is required to hand over. This averment of written version in para 20 clearly destroyed the case of the O.Ps particularly when we have already discussed the schedule of the agreement, wherefrom it can be safely presumed that O.P developer made deficiency of service and unfair trade practice.
Hence,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest against the O.Ps .
The O.P nos. 1 to 3 are hereby directed to get ready and hand over south open flat either in the first floor or in the second floor measuring 750 sq.ft comprising of two bed room, one drawing cum dining room, two bath rooms, one kitchen, one balcony ,having its as usual proportionate share of common areas stair case, entrance facilities terrace, sewerage water reservoir overhead water tank and amenities attached to the premises as per schedule of the agreement within 30 days from the date of the order subject to payment of balance amount of Rs.9,50,000/- through Bank Draft before the office of this Forum in the name of O.P nos.1,2 and 3 and after the bank draft is deposited before this office, the developer firstly hand over possession of the flat and on the same date collect the bank draft from the office of the Forum.
All the O.Ps including the land owners are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant within 45 days from the date of this order.
If any departure is made within the stipulated period, then O.P nos.1,2 and 3 are directed to pay compensation to the tune of Rs.30,000/-and litigation cost of Rs.10,000/- to the complainant and if the land owners failed to cooperate in the matter of registration even by handing over the photocopy of the Pan Card, since photocopy of Pan Cards of the O.Ps are mandatory for registration, then the land owners are jointly and/or severally liable to pay compensation to the tune of Rs.20,000/- and to pay cost of Rs.10,000/- to the complainant, failing which complainant is at liberty to approach before this bench for appointment of machinery of the Forum for registration of the deed of conveyance ,otherwise not.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P 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 the O.Ps .
The O.P nos. 1 to 3 are hereby directed to get ready and hand over south open flat either in the first floor or in the second floor measuring 750 sq.ft comprising of two bed room, one drawing cum dining room, two bath rooms, one kitchen, one balcony ,having its as usual proportionate share of common areas stair case, entrance facilities terrace, sewerage water reservoir overhead water tank and amenities attached to the premises as per schedule of the agreement within 30 days from the date of the order subject to payment of balance amount of Rs.9,50,000/- through Bank Draft before this bench in the name of O.P nos.1,2 and 3 and after the bank draft is deposited before this bench, the developer firstly hand over possession of the flat and on the same date collect the bank draft from the office of the Forum.
All the O.Ps including the land owners are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant within 45 days from the date of this order.
If any departure is made within the stipulated period, then O.P nos.1,2 and 3 are directed to pay compensation to the tune of Rs.30,000/-and litigation cost of Rs.10,000/- to the complainant and if the land owners failed to cooperate in the matter of registration even by handing over the photocopy of the Pan Card, since photocopy of Pan Cards of the O.Ps are mandatory for registration, then the land owners are jointly and/or severally liable to pay compensation to the tune of Rs.20,000/- and to pay cost of Rs.10,000/- to the complainant, failing which complainant is at liberty to approach before this bench for appointment of machinery of the Forum for registration of the deed of conveyance ,otherwise not.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
h
Member Member President
