West Bengal

South 24 Parganas

CC/255/2015

1. Sri Avishek Mukherjee, S/O Late Gorachand Mukherjee. - Complainant(s)

Versus

Amit Chatterjee One of the Director and Assignor of M/S. R.D.M.L. Creations (P) Ltd company incorpor - Opp.Party(s)

Susmita Bera.

09 Feb 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _255   OF ___2015____

 

DATE OF FILING : 4.6.2015     DATE OF PASSING JUDGEMENT:_09.02.2016 __

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu                    

 

COMPLAINANT                  :  1. Sri Avishek Mukherjee,s/o late Gorachand Mukherjee of 5B, Kedar Bose Lane, Kolkata – 25.

2.     Sukla Mitra,d/o late Gorachand Mukherjee ,w/o Joydeb Mitra of 1A, Girish Mukherjee Road, Kolkaqta -25
3. Smt. Shubhra Mukherjee,d/o late Gorachand Mukherjee ,w/o late Shyamal Mukherjee of 38B, Chakraberia Road, Kolkata – 25.
4. Smt. Anubha Mukherjee,w/o late Gorachand Mukherjee of 5B, Kedar Bose Lane, Kolkata – 25.

 

-VERSUS  -

 

O.P/O.Ps                                :     Amit Chatterjee, One of the Director and Assignor of M/s R.D.M.L Creations (P) Ltd. of 46E, Rafi Ahmed Kidwai Road, Kolkata – 16 and residing t 13, Balram Bose Ghat Road, P.S. Kalighat, Kolkata – 25.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that Gora Chand Mukherjee ,who happened to be the predecessor of the complainants, during his life time with his other co sharers in the respect of the property measuring about 28 cotahs of land at 17, Bhattacharjee Para Road, P.S Thakurpukur, Kolkata – 65   , entered into a registered Development agreement on 15^th day of June, 1992  and as per clause 6 of the said development agreement the owners jointly are entitled to get 14000 sq.ft covered area in different floors with undivided proportionate share of land underneath with all common facilities and roof of the top floor   and owners were given the opportunity to choice their accommodation within the said 14000 sq.ft covered spaces amicably. As per the said Development agreement the construction was to be completed within three years. After the demise of Gorachand Mukherjee ,his legal heirs, the complainants of this case  came into an amicable settlement regarding distribution of flat with other co-owners but on several requests to  the O.P to deliver possession of the owners’ allocation along with completion certificate from KMC the O.P each and every time deferred the date of delivery of possession on various pleas. As per amicable settlement among the owners, the complainants are entitled to get delivery of possession of flat measuring 682 sq.ft covered area in the First floor in Middle Block being flat no.G as mentioned in Schedule B of the petition of complaint but the O.P did not hand over the two flats inspite of several requests and reminders. Hence, this case for delivery of possession fo the flat to the complainant ,cost and compensation, Completion Certificate etc.

            The O.P though appeared in this case but did not file written version inspite of giving opportunity to file Written version on 30.10.2015, 17.12.2015 . Hence the case proceeded exparte against the O.P.  

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 going into the merits of the case it is needed to be mentioned as the O.P has not cared to  contest the case nor even filed written version to negate  the allegations of the complainant, raised against the O.P, all the documents filed by the complainant being unchallenged piece of testimony are considered as true.

All the points are taken together as they are interlinked.

            In the instant case, predecessor of the complainants entered into a development agreement with the O.P to construct a building at his land and a major share of the abovementioned flats having number of flats would be owned by the O.P and rest flats should be considered as owners’ allocation. Therefore, being legal heirs of late Gorachand Mukherjee, they are the consumer of the O.P being landowners and the land should be considered as “Consideration” . Therefore, complainants of the instant case are the “Consumer” under the purview of the Section 2(1)(d)(ii) of the C.P Act, 1986.

            After scrutinizing vividly the record in its entirety and hearing the case of the complainants from their Ld. Advocate ,it is crystal clear that complainants are entitled for the flat in question specifically (Schedule B of the complaint) . But , though as per agreement dated 15.6.1992 the O.P should hand over the possession of the suit flat within a legitimate time but O.P did not hand over the possession of the suit flat to the complainants ( owner’s allocation ) till the date of final hearing of argument nor the O.P handed over the completion certificate.

            In this regard it is pertinent to mention that though the development agreement was signed in the year 1992  and the instant case was filed in the year 2014 but as per remarkable decision of Hon’ble National Commission “Cause of action” shall be continued till the completion of handing over of possession and supply of completion certificate. In the light of the above observation we have no hesitation to hold that the case is not time barred by limitation.

            From the record it is also beyond doubt that being legal heirs of the deceased late Gorachand Mukherjee as per agreement for sale and subsequently, they are claimant for the flat. Therefore, considering the four corners of the instant case in the light of the above discussion we have no hesitation to hold that O.P being developer due to his inaction and intentional laches has failed to deliver possession of the flat in question to the complainant and this inaction of the O.P amounts to deficiency in rendering services to the complainant /consumer and he is duty bound to delivery possession of the suit flat in question to the complainant from owner’s allocation as per owners ‘settlement in the suit premises and also to deliver authenticated copy of completion certificate.

Regarding the prayer of the complainant for awarding compensation from the O.P following discussion is advanced . It is beyond doubt that though development agreement was signed between the predecessor of the complainants and the developer long ago, but due to deficiency in service of the O.P being legal heirs, the complainants are deprived from enjoying the property in question and for this they have to suffer not only tremendous mental agony but a huge financial loss. Therefore, considering the four corners of the above discussion, it is strongly opined that for the above reason complainants are entitled to be aptly compensated by the O.P.

Thus all the points are discussed and all are in favour of the complainant and complaint case succeeds.

Hence,

                                                                        Ordered

That the case be and the same is allowed on contest with cost.

The O.P is directed to hand over possession of the flat and authenticated copy of completion certificate to the complainant within 45 days from this date.

The O.P is directed to pay compensation to the tune of Rs.4.5 lacs and litigation cost of Rs.5000/- to the complainant within 30 days from this date, failing which, interest will carry @10% p.a from the date of default till realization.      

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

 

                                    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 case be and the same is allowed on contest with cost.

The O.P is directed to hand over possession of the flat and authenticated copy of completion certificate to the complainant within 45 days from this date.

The O.P is directed to pay compensation to the tune of Rs.4.5 lacs and litigation cost of Rs.5000/- to the complainant within 30 days from this date, failing which, interest will carry @10% p.a from the date of default till realization.      

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

 

                                    Member                                                                                   President