West Bengal

Birbhum

CC/30/2018

Ishita Dutta, D/O Nikhilranjan Dutta - Complainant(s)

Versus

1.Sri Minal Kanti Chatterjee, - Opp.Party(s)

Sanjit Kr. Acharya

10 Aug 2023

ORDER

Shri Sudip Majumder.   President in Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the petitioner Ishita Dutta, D/O Nikhil Ranjan Dutta, permanent resident of Rampurhat, Shibtolapara, P.O. and P.S. Rampurhat, District-Birbhum, Pin. 731224, intended to purchase for her employment a shop room and a godown measuring 144 sq. ft. and 240 sq. ft. including super built-up area respectively at Rampurhat vide Baiyanama deed between the complainant and OP Nos. 1 and 2 being No. 8657/2015, registered before the A.D.S.R. Rampurhat, Birbhum.

            It is the further case of the complainant that the total value of the schedule property was Rs. 10,00,000/ out of which the complainant paid Rs. 5,00,000/ on 04/11/2015 with a stipulation that the balance will be paid within 15/05/2016 and the OPs of the agreement for sale will be bound to excecute cobala deed in favour of the complainant.

            Thereafter the OPs did not give the possession of the schedule property to the complainant with in stipulated time and as such the complainant sent legal notice through Ld. Advocate Subrata Banerjee Advocate of High Court Calcutta on 06/09/2016.

            As per Baiyanamama Deed between the complainant and the OPs being No. 8657/2015 registered before the A.D.S.R. Rampurhat, Birbhum it was mentioned that the OPs will hand over the possession of

 

 

 

 

the said property to the complainant within 15/05/2016 failing which the OP No. 2 will be compelled to make the payment of Rs. 500/ per day as compensation to the complainant from 15/05/2016 till the date of hand over the possession of the said shop room as well as godown after the competition as useable condition.

            It is the further allegation of the complainant that the OPs did not serve the relevant papers of the said development job i.e. the copy of the developer’s agreement, sanction plan issued by Rampurhat Municipality, no objection certificate of Rampurhat Municipality, registered power of attorney etc.

            Thereafter the OPs handed over the possession of the said shop room and godown to the complainant through a registered deed of sale being deed No. 4297 of 2017 by violating the terms and condition as per the registered deed of agreement for sale being deed No. 8657 of 2015.

            The OP receiving the aforesaid legal notice of Ld. Advocate Subrata Banerjee executed a deed of sale in favour of the complainant being deed No. 4297 of 2017. But the OP No. 2 gave no demurrage @ Rs. 500/ per diem for the period between 15/05/2016 and 12/05/2017. Though demand was made by the petitioner.

            Hence, after finding no other alternative the complainant is compelled to file this case before this Forum/Commission for proper relief prays for:

            She is entitled to get back demurrage of Rs. 500/ per diem from the date of 15/05/2016 as per registered deed of agreement for sale being the deed No. 8657 of 2015 from OP No. 2.

            And she also prays for compensation of Rs. 1,00,000/- for her mental agony  and harassment from the OPs and litigation cost of Rs. 20,000/ and other reliefs.

            The OPs filed their written version and denied all the complaint against them.

            Ultimately the Ops prayed for dismissal of the case.

            It appears from the case record that by virtues of order No. 18 dated 02/03/2020 the case has been running exparte against both the OPs, though we have given attention to the view of the OP members from their written version.

Complainant’s side submitted evidence-in-chief and written notes on argument. Some documents have also been filed by the complainant compared with the original ones. Thereafter, Ld. Advocate for the complainant made oral argument in support of her case.

            Heard Ld. Advocate for the complainant.

            Considered.

            Perused all the documents.

 

 

 

            

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            We find in Lucknow Development Authority Vs. M.K. Gupta (1994) 1 SCC 243.....          “When a person hires the services of a builder or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is ‘service’ as defined by Sec 2(o) of the Act.”

In this case, the complainant purchased a shop room and godown from the OP members by Sale Deed No. 4297/2017 dated 12/05/2017. Thus the complainant is a consumer under the OP members and the OP members are the service providers. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/. OP/Oriental Insurance Co. Ltd., Suri Branch is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 16/05/2016 and the case has been filed on 08/05/2018 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence in the case record that the OP members were agreed with the complainant vide deed No. 8657/2015 dated 04/11/2015 to hand over the possession of the said shop room and godown within 15/05/2016 failing which the OP No. 2 would be compelled to make payment of Rs. 500/- per day as compensation from the date of 15/05/2016 till the date of handing over the possession of the said shop room and godown after the completion in useable condition. But, the OP members handed over the possession of the said shop room and godown through sale deed No. 4297/2017 dated 12/05/2017 before the A.D.S.R. Rampurhat, Birbhum by violating the terms and conditions as per registered deed of agreement vide No. 8657/2015 dated 04/11/2015.

 

 

 

 

 

It is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove her case beyond all reasonable doubts.

Point No. 4:

            From the documentary evidence as available in the case record it is crystal clear that the complainant purchased the shop room and godown and the OP members registered the same through sale deed vide No. 4297/2017 dated 12/05/2017 before the A.D.S.R. Rampurhat, Birbhum by violating the terms and condition as per registered agreement No. 8657/2015 dated 04/11/2015.

We find in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra II (2019) CPJ 29 (SC) ...“The purchaser cannot be made wait indefinitely for delivery of possession.”

It is also necessary to mention that the OP members have stated in their written version that the complainant issued cheque being No. 561525 amounting of Rs. 1,00,000/ in favour OP before the registration of the said property. The OP No. 2 deposited the same cheque in his Bank Account for encashment. But the said cheque was dishonored and OP No. 2 inform the complainant of the matter by sending a legal notice through his lawyer dated 18/08/2017. A case has been pending regarding the same before Ld. A.C.J.M, Rampurhat under N.I. Act, U/S 138 being case No. 828/17.

In this context, we are to opine that, the OPs have already executed sale deed in favour of the petitioner. They have admitted that they had received the consideration money by cheques. Now, if there is any trouble with any cheque after execution of the sale deed, it would be altogether a different thing.   Of course, the OP have taken shelter of court of Ld. A.C.J.M., Rampurhat. We cannot take a different view or action in this regard. The petitioner is in the better side.

We find in Wg. Cdr. Arifur Rahman Khan and Aleva Sultana & others v. DLF Southern Homes Pvt. Ltd. (Now Known As Begur Omr Homes Pvt. Ltd.) (2020) SCC OnLine SC 667 ...  “The Supreme Court observed that failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. In cases where there is a gross delay in the handing over the possession beyond the contractually stipulated period, the jurisdiction of the Consumer Forum to award just and reasonable compensation is not constrained by the terms of a rate in builder agreement.”

 

 

 

 

 

We also find in Sanjay Gupta v. Three C Shelters 2020 SCC OnLine NCDRC 178 ...      “The Court held that the OPs clearly had time to deliver possession of properties to the respective Complainants in time as per the allotment letter and the agreement. Thus, the allottees should have the right to ask for refund if the possession is inordinately delayed and especially beyond a year. The court observed that the instalments had been prayed up to reasonable time and the payment only stopped later when there was no progress in construction. Thus, there cannot be said to be in any breach. A delay of 42 months is a long period and would be considered as inordinate delay and thus the Commission directed the companies to refund approx. 12 crore to the buyers.”

In the light of observation made by their Lordships in the above decisions we find us safe to follow them and apply the ratio in the present dispute.

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complainant is sufficiently stamped and proved beyond all reasonable doubts.

• In ICICI Bank Ltd. Rep. By Its. vs. Mr. Kateka Sudhakar,S/O K.J… on 5 March, 2018 the Hon’ble State Commission, Hyderabad stated in para 16 as follows:

“16. The Supreme Court held that the compensation to be awarded is to be fair and reasonable.          In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer  and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.”

            Keeping the view of the Hon’ble Apex Court in mind in respect of the manner of the compensation and quantum of compensation as per fact and circumstances of the present case this Commission is of opinion that in the instant case the loss of the complainant would be served in just way in terms of money and the quantum of compensation will be just and proper if the OP is directed to pay Rs. 500/ per diem to the petitioner or complainant as compensation.

 

 

 

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 30/2018 be and same is allowed  exparte against both the OP members with cost.

The petitioner do get compensation @ 500/ per diem from OP No. 2 from the date of 15/05/2016 till 12/05/2017 i.e. for 363 days = Rs. (500 × 363) = Rs. 1,81,500/ (One lakh eighty one thousand five hundred only).

The OP No. 2 also directed to pay Rs. 3000/- (Three thousand only) as mental agony and harassment to the complainant and Rs. 2000/- (Two thousand only) as cost of litigation to the complainant.

The entire decree will be complied by the OP No. 2 within 45 (Forty five) days from this date of order, in default the complainant would be entitled to get interest on entire decreetal amount @ 9% p.a. from the date of default till realization.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.