DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./424/2017
Date of Filing Date of Admission Date of disposal
09.08.2017 21.08.2017 25.04.2024
- :- Shri Daman Prosad Biswas……..President.
- Shri Abhijit Basu…………Member
Complainant:- Dr. Paritosh Kumar Ray, S/o. Rathindra Nath Ray,
5/1, Old Calcutta Road, 1st Lane, Anandapuri, Barrackpore,
P.S. Titagarh, Dist-North 24 Parganas, Kolkata 700122.
-Vs-
Opposite Party(s):-1. Bhattacharyya Enterpris, A proprietorship firm, having its previous
Office at -24C/2, K.N. Mukherjee Road, P.O. Talpukur, P.S. Titagarh,
Dist- North 24 Parganas, Kolkata-700123, presently at 87(47)A-Road
Anandapuri, P.O. Nonachandanpukur, Barrackpore , T.S. Titagarh,
Dist- North 24 Parganas, Kolkata-700123.
2.Sri Sankar Bhattacharyya, S/o. Late Bholanath Bhattacharya,24C/2,
K.N. Mukherjee Road, P.O. Talpukur,
P.S. Titagarh, Dist- North 24 Parganas, Kolkata-700123.
3. Sri Shibananda Bhowmick, S/o. Phani Bhusan Bhowmik,
24C/2, K.N. Mukherjee Road, P.O.Talpukur,
P.S.Titagarh, Dist-North 24 Parganas, Kolkata-700123.
4. Sri Sankar Bhattacharyya, S/o. Late Bholanath Bhattacharyya,
5. Smt. Sumita Bhattacharyya, W/o. Sri Sankar Bhattacharyya,
24C/2, K.N. Mukherjee Road, P.O. Talpukur, P.S. Titagarh,
Dist-North 24 Parganas, Kolkata-700123.
Judgment / Final order
Complainant above named filed this complainant under sections 13/14 of C.P.Act, 1986 against the aforesaid opposite parties praying for direction upon the O.P. No.5 to delivery of lawful possession of the’ B’ schedule garage carried in favour of complainant and to execute and register sale deed in respect of ‘B’ schedule garage in favour of the complainant, hand over the license of the lift, direction to pay enhanced registration cost, compensation amounting to Rs.2,00,000,litigation cost amounting to Rs. 25,000/- and other reliefs.
He alleged that O.P. No.1 and 2 are the promoters/developers and O.PNo.3-5 are the land owners, consideration of the said garage was fixed Rs.5,40,000/- and complainant was liable to pay Rs.140,000/- + Rs. 150000/-as earnest money. Ultimately total cost was fixed Rs. 7,62,000.Compainant executed the aforesaid agreement for sale but opposite parties not yet obeyed the same.
O.P.Nos 1,2,4 and 5 filed W.V. They denied the entire allegation. They admitted that consideration of the ‘B’ schedule garage was fixed to Rs. 5,40,000
and complainant was liable to pay Rs. 1,40,000 as earnest money. He denied that complainant was told to pay Rs. 1,50,000/- as part payment and ultimately the total cost of the garage was fixed to Rs. 7,62,000/-.
They further stated that after payment of Rs. 2,90,000/- by the complainant, the answering opposite parties called upon the O.P.nos.3 to execute
Contd/-2
C.C. No./424/2017
:: 2 ::
and register the deed of conveyance in favour of the complainant but O.P. Nos.3
verbally denied to do so. They further denied the other allegations and prayed for dismissal of the case.
Trial
During trial complainant filed affidavit –in-chief. O.P. Nos. 1, 2,4,5 filed questionnaire and complainant gave answer.
Documents
Complainant filed the following documents at the time of filing of this case.
- Copy of agreement executed in between complainant and land owners on 02.05.2014. (one set Xerox).
- Copy of power of attorney dated 02.06.2015.
- Copy of agreement for sale dated 21.09.2014.
4.Copy of money receipt dated 21.09.2014. amounting to Rs.1,40,000/-.One sheet Xerox.
5.Copy of money receipt dated 19.03.2016 of Rs.1,50,000/-. …..One sheet Xero
6. Copy of plan …..one sheet Xerox.
BNA
Complainant filed BNA.
Decision
Complainant filed copy of following decisions reported in.
2015 (3) CPR 629.
2018(2)CPR 777.
2015(4)CPJ128
2016(3)CPR 147
2021(4)CPR 372
2022(1) CPJ 1.
2016(1)CPR 256
2020 (4)CPJ 10.
2013 (3)CPJ 59
2016 (2)CPR 33.
Decision with reasons
We have carefully gone through the aforesaid documents. We have heard the Ld. Advocate . We have carefully considered the documents on record. On perusal of agreement for sale dated 21.09.2014, we find that said document was
Contd/-3
C.C. No./424/2017
:: 3 ::
prepared relating to the sale of garage of comprising covered area of 150 sq.ft with consideration of Rs. 5,40,000/-. At the time of execution of said document complainant paid Rs. 1,40,000/-.
Complainant stated in the petition of complaint that consideration money of aforesaid garage was fixed to Rs.5,40,000/-
O.P. Nos.2 to 5 in their written version stated that total consideration money was fixed to Rs. 5,40,000/-. They denied the total cost of the garage was fixed as Rs.7,62,000/-. From the aforesaid discussion it is clear before us value of the garage was fixed to Rs. 5,40,000/- and not in Rs. 7,62,000/-.
From the aforesaid discussion it is clear before us that value of the garage was Rs. 5,40,000/-. It is also admitted position that at the time of execution of the said agreement complainant paid Rs. 1,40,000/-.Said fact has noted in the agreement. Moreover, complainant filed money receipt in respect of Rs. 1,40,000/- dated 21.09.2014.
From the aforesaid discussion it is clear before us that complainant has paid Rs. 1,40,000/- out of the total value of the garage.
During hearing Ld. Advocate for the complainant further argued that he paid another amount of Rs. 1,50,000/- on 18.03.2016. The complainant filed Xerox copy of one receipt dated 18.03.2016. On perusal of receipt dated 18.03.2016, we find that the complainant paid Rs. 1,50,000/- in favour of O.P. No.1.
We have carefully gone through decision reported in 2015 (3) CPR 629 we find that Hon’ble National Commission held that appellants by not delivering the legal, physical possession of the apartment within prescribed period are not only deficiency in rendering service but are also guilty of indulging into unfair trade practice.
On perusal of decision reported in 2018 (3) CPJ 216we find that Hon’ble NCDRC held:-From this it is evident that till date there is no completion certificate issued in respect of the project of which subject flat is the part. Therefore, even if any offer of possession was given by the builder without obtaining completion certificate it cannot be taken as genuine offer for delivery of possession.
Hon’ble NCDRC in the decision reported in 2015(4) CPJ 128 held hard earn money of consumer cannot be allowed to be grabbed.
Contd/-4
C.C. No./424/2017
:: 4 ::
Hon’ble NCDRC in a decision reported in 2016(3) CPR 147 directed the O.P to pay jointly or severally Rs. 16039790/- along with 18% interest as well as cost of Rs. 50,000/-.
Hon’ble NCDRC in another decision reported in 2021(4) CPR 372 held that a person cannot be made to wait indefinitely for the possession of the flat allowed to him /her.
Hon’ble NCDRC in another decision reported in 2022(1) CPJ 1 held that since it is admitted fact that possession of plot into question has not been delivered to the complainant by the date, this complaint has been filed or even thereafter, as such there is a continuing cause of action in his favour to file this compliant in view of decision AIR 99 SC 380 and IV (2012) CPJ 12 (SC).
On perusal of decision reported in 2018(3) CPJ 216 we find that Hon’ble NCDRC Held:- From this, it is evident that till date there is no completion certificate issued in respect of the project of which the subject flat is the part. Therefore, even if any possession was given by the builder without obtaining completion certificate it cannot be taken as genuine hand over of delivery of possession. It is admitted fact that possession of the flat in question has not been given to the complainant.
Hon’ble NCDRC in a decision reported in 2016(4)CPR256 directed the O.P to pay 15% interest for delay period and to give occupancy certificate.
Hon’ble Supreme Court in a decision reported in 2020(4)CPJ 10 that held failure to provide promised amenities, compensation has to be paid.
Hon’ble ) NCDRC in a decision in 2016(2) CPR 33 held unscrupulous buiders like appellant who are taking substantial cost of apartment do not perform their part of obligation should not be spared.
On perusal of record we find that the complainant is a consumer and opposite parties are the service providers.
From the aforesaid discussion it is clear before us aforesaid act of the opposite parties are deficiency in service and unfair trade practice and necessary direction should be given to the O.Ps.
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, the present case succeeds.
Contd/-5
C.C. No./424/2017
:: 5 ::
Hence,
Ordered
that the present case be and the same is allowed on contest against the O,P. Nos. 1,2,4,5 and allowed exparte against O.P. No.3with cost of Rs.5,000/- to be paid in favour of the complainant by the O.Ps.
O.P. Nos.1-5 are directed to execute and register the sale deed in respect of the garage mentioned in the schedule B’ of the complaint after taking Rs. 2,50,000/-( Rs. Two lac fifty thousand) from the complainant within 45 days from this day failing which complainant shall have liberty to put this order into execution.
O.P. Nos. 1to 5 jointly or severally are directed to deliver the lawful possession of ‘B’ schedule property in favour of the complainant along with completion certificate relating to the said property wihin 45 days in favour of the complainant failing which complainant shall have liberty put this order into execution.
O.P. Nos. 1 to 5 jointly or severally are directed to pay compensation amounting to Rs. 30,000/- in favour of the complainant within 45 days from this day 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 the CPR, 2005.
Dictated & Corrected by
President
Member President
