DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 218/2019
Date of Filing Date of Admission Date of Disposal
10.07.2019 16.07.2019 22.12.2023
Complainant/s:- | Sri Shyamal Kumar Biswas, S/o. Late Surendra Nath Biswas, C/o. Sri Chanchal Sarkar, Riya Apartment Government Colony, P.O Nabapally, P.S. Barasat, Dist-North 24 Parganas, Kolkata-700126 |
O.PS v | 1.Sri Arabinda Chakraborty, S/o. Late Abani Mohan Chakraborty, 1397 Deshapriya Road, P.O. Nabapally, P.S. Barasat, Dist-North 24 Parganas, Kolkata-700126. 2.Sri Badal Chakraborty, S/o. Late Abani Mohan Chakraborty, 1397 Deshapriya Road, P.O. Nabapally, P.S. Barasat, Dist-North 24 Parganas, Kolkata-700126. Legal Heirs and Successors Smt. Sritanuka Chakraborty, W/o Kaushik Chakraborty, D/o Sri Badal Chakraborty, residing at Parbati Enclave, Rashdanga, Chopragali, P.O. & P.S. Asansol, District – Paschim Burdwan, Pin - 713301. 3. M/s. Mousam Enterprise, represented by its sole proprietor Jayanta BS/o. Late. Shyamal Baran Bose, C/o. Mousumi Sengupta, Lichutala , P.O. Noapara, P.S. Barasat, Dist-North 24 Parganas, Kolkata-700126. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named filed this complaint U/s 12 of the Consumer Protection Act, 1986 against the Opposite Party praying for relief such as direction to the opposite parties to finish the unfinished work of the flat mentioned in the schedule ‘B’ of petition of complaint, hand over the physical possession of the flat mentioned in the schedule ‘B’, issue the C.C., compensation amounting to Rs. 3,00,000/- litigation cost amounting to Rs. 1,00,000/- and other reliefs.
He alleged in the petition of complaint that mother of O.P. Nos. 1and 2 namely Smitiprava Dey was the erstwhile owner of the land mentioned in the ‘A’ schedule of the petition of complaint byy virtue of a registered deed of partition being No. 1110 /1990.She died leaving behind O.P. Nos. 1 and 2 and one daughter namely Dipali Chatterjee alias Chakraborty and her legal heirs and successors. Subsequently O.P. Nos. 1 and aforesaid Deepali Chatterjee jointly gifted their share in favour of the O.P. No.2 by a registered deed of gift being No..06307/2008. Subsequently O.P. No.2 and Smt. Depali Chatterjee jointly gifted and transferred rest portion in favour of O.P. No..1by registered deed of gift being No. 07275 for the year 2008. O.P. Nos. 1 and 2 by this way became owner of ‘A’ schedule property. Subsequently O.P. Nos. 1 and 2 executed one development agreement in favour of O.P. No.3 for construction of a multistoried building over the said land by his fund. In terms of the said development agreement dated 03.03.2013 O.P. Nos. 1 and 2 granted and executed unregistered general power of attorney in favour of O.P. No.3 as their true and lawful constituted attorney and there by entrusted the O.P. No.3 to do certain acts and deeds as embodied therein. In terms of the development agreement one building plan was prepared for constructing of a multistoried building and it was placed before Barasat Municipality for sanction of the building plan for erecting the G+3 and over the ‘A’ schedule property. Thereafter construction of the said building was started. Observing the said construction complainant expressed his desire to purchase a self contained flat measuring 950 Sq.ft. which has specifically mentioned in the schedule ‘B’ with the consideration of Rs. 14,25,000/-. Out of the said amount complainant paid Rs.7,40,000/- subsequently paid further amount of Rs. 1,00,000/-.. By this way the complainant paid total amount Rs. 8,40,000/- and there is a due amounting o Rs. 5,85,000/ and complainant was ready to pay the said amount at the time of execution of sale deed. But opposite parties declined to register the sale deed in respect of the aforesaid flat.
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Thereafter, the complainant issued one legal notice on 28.05.2019 through his Ld. Advocate Ananda Mohan Kundu addressing the opposite parties to arrange registered sale deed in respect of ‘B’ schedule property in favour of the complainant.In spite of receipt of receipt of the aforesaid notice opposite parties did not pay any heed. Hence the complainant filed this case praying for aforesaid reliefs.
O.P. Nos. 1and 2 filed W.V. they denied the entire allegation made in the petition of complaint. They further contended that the aforesaid property is the property of the developer and the complainant have no knowledge about the same. Present complainant did not give any money in favour of the opposite parties no.1-2.
TRIAL
Power of Attorney of the Complainant Sri Chanchal Sarkar filed affidavit-in-chief.
O.P No. 1 filed a petition on 20/10/2022 praying for treating the W/V of O.P No. 1 as evidence of O.P No. 1.Said petition has allowed on 20/10/2022.
Documents
Complainant at the time of filing of this case filed the following documents. These documents were verified at the time of hearing argument:-
- Copy of three money receipts dated 12/02/2018, 13/03/2018 and 01/03/2018 for the amount of Rs. 5,00,000/-, Rs. 1,00,000/- and Rs. 2,40,000/- i.e. Rs. 8,40,000/-….xerox.
- Copy of Advocate Letter dated 28/05/2019…….xerox.
- Copy of Postal Receipts and Postal T.Rs…..xerox.
- Copy of Special Power of Attorney….1 set…..xerox.
- Copy of agreement for sale……..1 set…..xerox.
- Copy of General Power of Attorney dated 04/03/2013…..1 set….xerox.
- Copy of another Power of Attorney dated 04/03/2013…1 set…..xerox.
O.P. did not file any document at the time of Trial.
BNA
Complainant filed BNA. O.P No. 2(a) filed BNA.
Decision with Reasons
Complainant alleged in the petition of complaint that agreement for sale with the O.P No. 3 was executed on 12/02/2018 who is developer and also represented himself as constituted Power of Attorney of the land owners i.e. O.P No. 1 and 2. Complainant paid Rs. 8,40,000/- as consideration price out of Rs. 14,25,000/-. They are ready to arrange the sale-deed in respect of the said flat after making payment of balance consideration amount of Rs. 5,85,000/-. Complainant on 27/05/2019 made verbal request to the Opposite Parties to execute the registered deed of sale in his favour. Complainant also sent a letter dated 28/05/2019 through their Ld. Advocate to the Opposite Parties with a request to arrange registration of deed of sale in respect of the ‘B’ schedule property in his favour.
Main contention O.P No. 1 and 2 is that Complainant is dealing with the business of lending money in lieu of high rate of interest. In the present case O.P No. 1 and 2 executed the aforesaid agreement for sale at the time of taking the aforesaid amount as loan.
We have carefully gone through the agreement for sale dated 23/02/2018. It is not the contention of O.P No. 1 and 2 that said document is forged one or said document was prepared without the knowledge of O.P No. 1 and 2. So, it is clear before us that O.P No. 1 and 2 are well aware that the said document has been executed the same in favour of the Complainant. On perusal of the said document we find that this is an agreement for sale relating to the aforesaid flat.
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We also find that aforesaid document has been executed in favour of the Complainant on behalf of the O.P No. 1-3. So in absence of any counter evidence we cannot disbelieve the said document.
Accordingly, it is clear before us that said document i.e. agreement for sale / Bynanama dated 23/02/2018 is valid and legal document and same is binding upon the O.P No. 1-3.
Accordingly, the contention of O.P No. 1 and 2 as well as contention of O.P No. 3 denying the aforesaid agreement for sale is not acceptable in the eye of law.
Accordingly, it is clear before us that O.P No. 1-3 cannot disobey the aforesaid agreement for sale.
We have carefully gone through the decision of Hon’ble N.C.D.R.C, Consumer Case No. 1337 of 2018 Dt. 02/06/2022 (Deepika Chaudhury Chandra and another Vs. Emaar MGF Land limited). We find that Hon’ble N.C.D.R.C observed that Complainant is entitled to compensation for delay in delivery of possession.
We have also carefully gone through the principles of law enunciated in the decision reported in (2016) 8 SCC 429 and Civil Appeal No. 1065 of 2021 dated 07/12/2021 (M/s Janapriya Buildestate Pvt. Ltd. Vs. Amit Sone and Others.)
On perusal of record we find that value of the flat was settled in between Complainant and Opposite Parties as Rs. 14,25,000/- out of which Complainant has paid Rs. 8,40,000/-. During the trial Complainant produced money receipts for the amount of Rs. 8,40,000/- issued on different dates. Accordingly, it is clear before us that Complainant has paid Rs. 8,40,000/- in favour of the O.Ps and O.Ps will get Rs. 5,85,000/- from the Complainant as value of the aforesaid flat.
On careful perusal of record we find that Complainant is the consumer and O.P No. 1-3 are the service provider.
Having regard to the aforesaid discussion it is clear before us that Complainant has able to established his grievance by sufficient documents beyond reasonable doubt and he is entitled to relief as per his prayer.
In the result present complaint succeeds.
Hence ,
It is ordered,
That the present case vide no. C.C./218/2019 be and the same is allowed on contest against the O.P No. 1-3 with cost of Rs. 5,000/- to be paid by O.P No. 1-3 in favour of the Complainant.
O.P No. 1-3 jointly or severally are directed to execute the sale-deed in respect of the flat mentioned in the schedule ‘B’ of the petition of complaint in favour of the Complainant after taking Rs. 5,85,000/- from the Complainant within 45 days from this day failing which Complainant shall have liberty to put this order into execution.
O.P No. 1-3 jointly and severally are directed to pay Rs. 2,00,000/- as compensation in favour of the Complainant within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
