DIST. CONSUMER  DISPUTES  REDRESSAL  COMMISSION

NORTH 24 Pgs., BARASAT

 C.C. No. 422/2018

Date of Filing:                                   Date of Admission:-                        Date of Disposal:

10.10.2018                                                  31.10.2018                                         20.09.2023

Complainant :-                               1. SHILPI NANDI, W/o Debabrata Nandi, Aged about 50 years, Residing at – Abdalpur, Badu Road, Madhyamgram, District – North 24 Parganas, West Bengal.

=Vs=

Opposite Parties :-     1.                     BENI MADHAB CONSTRUCITON

PVT. LTD. (DEVELOPERS)

A registered company having its office at Uttarayan Apartment, Ground Floor,

466, S.K.B. Sarani, Seth Bagan, Dum Dum, Kolkata-700030, Post Office- Gughudanga, Police Station- Dum Dum,

Dist- North 24 Parganas, West Bengal. Represented by its Managing Director.

                                                2.         SRI BENI MADHAB  KUMAR

                                                            Son of Late Birendra Nath Kumar

Residing at- Uttarayan Apartment, Ground Floor, 466, S.K.B. Sarani, Seth Bagan, Dum Dum, Kolkata-700030, Post Office- Gughudanga, Police Station - Dum Dum,

Dist.- North 24 Parganas, West Bengal

PROFORMA OPPOSITE PARTIES

3.         SRI NABA KUMAR DAS

            Son of Late Chittaranjan Das

Residing at- Rishi Arabinda Road

            Post Office- Madhaymgram Bazar

            Police Station- Barasat, Kolkata-700130

            District- North 24 Parganas, West Bengal.

4.         TAPASI BANERJEE

            Wife of Arup Kumar Banejee

            Residing at- Nabapally, Barasat

Post Office- Nabapally, Police Staton-Barasat, Kolkata-700126, District- North 24 Parganas, West Bengal.

5.         MONI GANGULY

            Wife of Late Bikash Ganguly

            Residing at- Rishi Arabinda Road,

Post Office-Madhaymgram Bazar,

Police Station-Barasat, Kolkata-700130,

Dist.- North 24 Parganas, West Bengal.

P R E S E N T               :- Smt. Monisha Shaw.…………… Member.

                                        :- Shri. Abhijit Basu…………………Member.

Judgment

This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.

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C.C. No. 422/2018

The brief fact of this case is that the Complainant Shilpi Nandi is the owner of the scheduled property (land) of the Complainant. The OP Nos. 1 and 2 both are the developers. The Complainant entered into a Registered Development agreement with the OP Nos. 1 and 2 on 25.07.2013 to promote her suit property by way of making residential construction over the suit property in accordance with sanctioned building plan approved by the Competent Authority. The Complainant executed registered power of attorney to O.P No. 1 and 2 being deed no. 5303 of 2013. As per terms of the agreement the O.P agreed to pay amounting Rs.10,00,000/- out of which the O.P paid Rs.6,00,000/- to the Complainant by cash and through cheque. But the O.Ps failed to pay the rest amount i.e. Rs. 4,00,000/-.

By executing registered General Power of Attorney being no.05303 in the year 2013 the Complainant entrusted the OP Nos.1 and 2 the right, and power to absolute sale, transfer, convey, alienate the constructed area by separate unit/flats that to the intending purchasers/buyers after taking consideration money from them.

The OP Nos.3,4 and 5 are the proforma OP parties against whom no relief is sought for.

As per terms and conditions of the agreement the completion of the construction is fixed for a period of 30 (thirty) months. But after expiration of stipulates period the OP Nos. 1 and 2 kept the unfinished construction of multistoried building over suit land though they have taken the area or flats of their allocation as per sanctioned building plan vide no.9435/no 806 dated 11.09.2014.

Though the OP Nos.1 and 2 are in possession over the suit property despite they did not finish the construction works and nor they paid the balance amount (Rs.4,00,000/-) to the Complainant, up till now inspite of her several requests both in oral and writing.

Therefore, having been constraint the Complainant took legal recourse by filing this case and prayed for direction upon OP Nos.1 and 2 to make payment of balance amount of Rs.4,00,000/- (four lacks) in her favour basing on the agreement dated 25.07.2013 and declaration-cum-agreement dated 07.07.2014 along with statutory interest on it and for direction upon the OP Nos.1 and 2 for making payment of Rs.4,00,000/- (four lacks) as compensation for her harassment and mental agony inter alia.

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C.C. No. 422/2018

Schedule of the Property

First Schedule

All that piece and parcel of Bastu land at present Bastu in nature admeasuring 10 (ten) Decimals equivalent to 6 (six) Cottahs more or less lying and situated at Mouza – Chakraghata, J.l. No.26, Touji No.146, Re. Su. No. 164, appertaining to C.S. Khaitan No.118, R.S. Khaitan No.401, comprised in C.S. 61 and R.S. Dag No.75 within the local limits of Madhyamgram Municipality in Ward No.5, Holding No.50 under Police Station – Barasat, A.D.S.R.P. – Barasat, within the District of North 24 Parganas South Bankimpally, Madhyamgram and which is butted and bonded in the manner of following :

On the North       :     Rabindra Nath Bhattacharjee

On the South       :     Dag No.61

On the East          :     Arabinda Road

On the West         :     Rasik Lal Das

Second Schedule   Reffered to above.

All that Shilpi Nandi will get Rs.10,00,000/- (Rupees ten lakhs) only in total and out of which paid Rs.6,00,000/- only.

As per postal track report S/R upon the OPs served. Despite O.P No. 1 and 2 appeared and other O.Ps did not appear before this Forum. Hence the case proceeded ex-parte against other OPs.

  Considering facts and circumstances as well as nature and character of this case the following points are necessarily come out for consideration to reach just decision of the case:-

1. Is the Complainant a consumer U/S 2(1)(d)(ii) of the consumer Protection Act,1986?
2. Has this Forum jurisdiction to entertain the instant case?
3. Have the OPs any deficiency in service as alleged by the Complainant?
4. To what other relief/reliefs the Complainant is entitled?

Decision with reasons

Considering the nature and character of the case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.

By executing the agreement dated 25.07.2013 between the Complainant and the OP Nos. 1 and 2 and by executing a registered General Power of Attorney in the year 2013 for the purpose of promoting the Scheduled Property by way of making residential construction thereon and by making part payment to that effect the relation between them became consumer and service providers respectively which falls under provision laid down u/s 2(1)(d)(ii) of the C.P. Act, 1986.

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C.C. No. 422/2018

Both the parties reside within the District of North 24 Parganas and the suit property is situated in the same district. The claim amount does not exceed the pecuniary limit of this Forum. Therefore, this Forum has both territorial and pecuniary jurisdiction to entertain this case.

We have perused the complaint as well as Examination-in-Chief on affidavit filed by the Complainant. We have perused the copy of the agreement, money receipts along with the supporting affidavit relating to documents filed by the Complainant. On perusal of the aforesaid materials it is revealed that the Complainant and OPs entered into an agreement regarding disputed suit property and the OPs did  not comply the terms and conditions of the agreement by non making of payment of the balance amount of Rs.4,00,000/- to the Complainant and it is the deficiency in service of the OP side.

As the Complainant deliver the possession of land for developing the construction which would be treated as consideration on the part of the Complainant, therefore, the Complainant is a consumer and O.Ps are service provider but the O.Ps failed to provide their service as promised. So, it would be treated as deficiency of service on the part of the Opposite Parties. So this case is fit for try before this Commission as per Consumer Protection Act.

Considering the positive results of the foregoing discussed points point no 4 bears also positive result and that will be reflected in the ordering portion.

Thus all the points are disposed of accordingly.

The instant case has achieved its success.

In drawing conclusion we have followed the decision of the Hon’ble Apex Court passed in Civil Appellate Jurisdiction, Civil Appeal No.3302 of 2005 in case of Faquir Chand Gulait Vs. Uppal Agencies Pvt. Ltd. and Anr. Delivered on 10.07.2008.

Fees not required as the claim amount is not exceeded Rs.5,00,000.

Hence, for ends of justice

It is Ordered

That the instant case being no.CC-422/2018 be and the same is allowed  with contest against O.P No. 1 and 2 as they filed the Written Version and ex-parte against other O.Ps. The Complainant Shilpi Nandi do get a decree of her balance amount of Rs.4,00,000/- with 8% interest from the date of promised of the agreement till recovery.