12......28.03.2022...
The complainant is present today before the Learned Commission. Judgement/Final Order is ready. It contains 10 pages. It is sealed and declared in open Commission.
It is
ORDERED
That the complaint case be and the same is hereby allowed Ex-party against the opposite parties with a cost of 30,000=00 (thirty thousand) only.
The opposite parties are directed severally or jointly to pay Rs. 1, 00,000=00 (Rs. one lakh) only as compensation amount for their deficiency of service occurred under Section 2(11) and unfair trade practice occurred under Section 47 of the Consumer Protection Act 2019.
The O. Ps. are also directed to register the Deed of Conveyance of the said plot of land and provide possession with possession letter in favour of the complainant within 60 days from the date issuing this Order.
The complainant is directed to bear the charge of Registration for Deed of Conveyance.
Alternatively,
The O. Ps. are jointly or severally liable to bear Rs. 30,000=00 only as litigation cost.
The opposite parties are directed severally or jointly to pay Rs. 1,00,000=00 (Rs. one lakh) only as compensation amount for their deficiency of service occurred under Section 2(11) and unfair trade practice occurred under Section 47 of the Consumer Protection Act 2019.
The opposite parties are directed to refund to the complainant the paid amount of Rs. 1, 62,500=00 only with 10% simple interest from the date of Agreement for Sale signed on 25/9/2005.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAES
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700144
C.C.NO. 18 of 2021
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
18/2/2021 02/03/2021 28/3/2022
President in charge - :Hon’ble Sri Jagadish Chandra Barman
Member- Hon’ble Smt. Sangita Paul
Complainant: - Sri Anup Kumar Shaw
Son of Sri Prakash Lal Shaw
115, Ramkrishna Nagar,
P.O.- Laskarpur, Garia,
P.S.-Basdroni (formerly Regent Park)
Kolkata-700084
Versus
Opposite parties- 1) Broadway Realtors Pvt. Ltd.
(Registered under Companies Act, 1956)
Represented by its Board of Directors,
P- 593, Purna Das Road
P.S.- Lake, Kolkata-700029
Director under Agreement
2. Md. Anwar Ali Molla, Director
Son of Hazi Kousar Ali Molla
P- 593, Purna Das Road
P.S.- Lake, Kolkata-700029
Present Directors:-
3. Sri Arun Kumar Sarker, now deceased, Expunged
42A, Benia Pukur Road,
P.O. & P.S.- Entally
Kolkata-700014, West Bengal
4. Smt. Manisha Ganguli, Director
42A, Beniapukur Road
Near Islamia School
P.O. & P.S.- Entally
Kolkata-700014
Name of the advocate of the complainant- Dr. Jay Prakash Gupta
Name of the advocates of the O. Ps 1-Mr. Apurba Sautya
2. Mr. Prashanta Banerjee
FINAL ORDER/JUDGEMENT
Sri Jagadish Chandra Barman, President -in- Charge
The facts leading to the filing of the instant case by the complainant may be epitomized as follows:-
This is a complaint case under Section 35 of the Consumer Protection Act 2019. The Complainant Sri Anup Kumar Shaw was very much interested to purchase a piece of land to construct his house for dwelling purpose from the opposite parties mentioned above. The piece of land was under the running project of Ujjaini in the area vide Plot no- AF/6, measuring about 2.5 kothas (1800 sq. feet approximately, 30 ft. width x 60 feet dept) under J.L. No- 66, mouza- Jayenpur, Police Station- Sonarpur, district- 24 Parganas South, West Bengal mentioned in the scheme plan and the said land is butted as follow:
On the North: 20 feet wide road.
On the South : by plot no AF/15
On the East : By plot no AF/7
On the West : by plot no- AF/5
As per statement, the plot no. is AF/6, measuring about 2.5 kottahs (1800 sq. feet approximately, 30 feet width x 60 feet depth). Value of land was settled per kotha Rs. 65,000.00 only. Total consideration value was settled then Rs. 1, 62,500=00 only for 2.5 kothas. Accordingly, the complainant applied to the O. Ps. Vide application no-005249 and paid on 30/7/2005 Rs. 16,250.00 only by cheque no 868276 of the Punjab National Bank (PNB), Garia and Rs. 16,250.00 only by cash on 30/8/2005. In total, the complainant had paid 20% booking money Rs. 32,500 to the opposite parties. Thereafter, the complainant entered into an Agreement for Sale with O. Ps. on 25/9/2005. As per Agreement for Sale the remaining balance of money would be paid in 48 installments at the rate Rs. 2,708.00 only. The O.P. also issued receipts to the complainant against payment of Rs. 32,500 which is stated in the Agreement for Sale dated 25/9/2005.
As per para 3 of the page no-2 of the AGREEMENT FOR SALE “The FIRST Party here the service provider /O.P. shall have the right to develop the land mentioned in the 1st schedule after execution of this Agreement for Sale on behalf of the Second party by constructing metal road to reach the plot of land along with surface side drains and other necessary works pertaining to the basic infrastructure and shall have the right to divide the said land into small plot in terms of the said agreement and according to the scheme plan.”
As per para 16 of the Agreement for Sale,” the Deed of Conveyance of the said land mentioned in second schedule hereunder shall be presented by the first party for registration before the Registrar concerned within 30 days from the date of final payment of all installments and additional cost provided by the SECOND PARTY, approves draft and pay of all cost towards registration of Deed of Conveyance.”
According to the Agreement for Sale, the 48th installment of Rs. 2,708.00 was paid by cheque in the month of August 2009 and it is clearly mentioned in the receipt issued by the Broadway Realtors Pvt. Ltd.
According to the complainant’s statement mentioned in the complaint petition, the complainant had paid full amount to the O.Ps. but the O.P. neither developed the land nor did any other essential works mentioned in the Agreement for Sale. The O. Ps. also did not hand over the plot of land and performed the Deed of Conveyance in favour of the complainant till today.
Hence, the complainant sent a demand notice through a ld. advocate on 10/11/2020 to the O.Ps to register the Deed of Conveyance and hand over the plot to the purchaser here the complainant. But the O. Ps. did not pay any heed upon the anxiety, pension and agony of the Complainant. Hence, the complainant files this instant case before this ld. Commission on 18/2/2021. Accordingly, the show cause notices were served to the opposite parties. The Complainant has prayed in his petition for following reliefs:-
(1) To issue an order to the O. Ps. to execute and register the Deed of Conveyance and give possession;
(2) To issue an order to the O. Ps. to pay compensation amount Rs. 2,00,000=00 only to the complainant;
(3) To issue an order to the O. Ps. to pay Rs. 50,000=00 only as litigation cost
ORAlternatively the complainant has prayed:-
- To issue an order to the O. Ps. to refund the total paid amount Rs. 1,62,500=00 only to the petitioner with interest ;
- To issue an order to the O. Ps. to pay to the petitioner an amount equal to the present market price of the Schedule plot of land as may be assessed by the Concerned Deptt.;
- To issue an order to the O. Ps. to pay compensation amount Rs. 2,00,000=00 only to the complainant;
- To issue an order to the O. Ps. to pay Rs. 50,000=00 only as litigation cost and;
- To issue any other order as the Commission may deem fit and proper.
It is worthy to mention relating to delivery of show cause notices upon the O. Ps., that track reports were sent to the O. Ps. on 01/4/2021 and it is found that show cause notice upon O.P. No -1 is delivered on 5/4/2021.
In relation to show cause notice upon the O. P. No-2, postal remarks are mentioned as ADDRESSE LEFT WITHOUT INSTRUCTIONS. As per Judgement order of Hon’ble High Courtin FMA no. 42 of 2003 decided on 16.5.2005, LEFT means GOOD SERVICE.
In relation to show cause notice to O. P. No-3, postal remarks are mentioned as item returned as the O.P. No -3 deceased. It is thereafter, expunged from the cause list on the basis of written petition of the complainant.
In respect of show cause notice upon O. P. No- 4, ITEM RETURNED UNCLAIMED - means good service.
The opposite party no-1, though received the show cause notice on 5/4/2021, yet, O. P. No-1 did not appear and submit the written version within the limitation period of 45 days. So the instant case is declared by the Hon’ble Bench “Ex-parte” on 04/10/2021 means after six months from the date of receiving the show cause notice by the O.P. No-1.
On 25th day of November 2021, the O.P.No-1 appeared at 2.21 p.m. before the Ld. Commission with power as well as submitted W. V. It was heard and rejected by the HON’BLE BENCH on the ground that the written version was not filed by the O. P. No 1 even elapsing/within 6 months. So the instant case is remained unchallenged and it is proceeded Ex-parte.
Upon the averments of the complaint petition, the following points are formulated:-
POINTS FOR DETERMINATION
1]. Is the complainant a consumer?
2] Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainant?
3] Is the complainant entitled to get relief /relieves as prayed for?
EVIDENCE OF THE COMPLAINANT
The complainant filed evidences on affidavit on 25/11/221 and Brief notes of Argument on 16th February 2021. The complainant also requested The Learned Commission through the learned advocate that the Final Order may be issued on the basis of BNA. It is considered.
DECISIONS WITH REASONS.
Point no. 1, 2, & 3.
As per terms and conditions of the Agreement for Sale signed on, the complainant applied to the O. Ps. and paid on 30/7/2005 Rs. 16,250.00 only by cheque no 868276 of the Punjab National Bank (PNB), Garia and Rs. 16,250.00 only by cash on 30/8/2005. In total, the complainant had paid 20% booking money Rs. 32,500 to the opposite parties. Thereafter, as per Agreement for Sale the remaining balance of money had been paid in 48 installments at the rate Rs. 2,708.00 only. The O.P. also issued receipts to the complainant of all payments. Therefore, there is no doubt the complainant is a Consumer under definition of Section 2 (7) of the Consumer Protection Act 2019.
In relation to point for determination 2 ‘’Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainant?”,and to the point no-3 “ Is the complainant entitled to get relief /relieves as prayed for? ” it is relevant to say that the opposite party no. 1 did not pay any heed upon the concern, anxiety, harassment of the complainant. Even after receiving the demand notice from a advocate on behalf of the petitioner, the opposite party no. 1 did not response. It is clear to us that O. Ps. were interested to receive the money in time. In this instant case, the complainant had paid full consideration amount of Rs. 1, 62,500.00 only as per terms and condition of the Agreement for Sale. But the O. P.s. neither refunded the paid money nor done Deed of Conveyance in favour of the complainant. The O. Ps. did not develop the land mentioned in the 1st schedule . The O. Ps. also did not construct metal road to reach the plot of land along with surface side drains and other necessary works pertaining to the basic infrastructure etc.
Therefore, deficiency of service under Section 2(11) and unfair trade practice under Section 47 of the Consumer Protection Act have been occurred on behalf of the Opposite Parties. Hence, they are either severally or jointly liable to be penalized Rs.30, 000=00 only as litigation cost, Rs. 1 00,000=00 only as compensation amount to be paid to the complainant within 60 days from the date of issuing this order. Opposite parties are liable to register the Deed of Conveyance and to give possession of the booked plot of land in favour of the complainant within 60 days from the date issuing this order.
Alternatively,
The opposite parties are liable to pay Rs. 30,000 only as litigation cost and to refund the amount received from the purchaser here the petitioner RS. 1, 62,500.00 only with 10% simple interest from the date of agreement i.e. 25/9/2005 with compensation amount Rs. 1,00,000=00 only.
All the directions should be complied within sixty (60) days from the date of issuing this ORDER. The complainant shall bear the charge of registration for the Deed of Conveyance , if the O. Ps. give the Registration of the said plot of land in favour of the purchaser here complainant.
In the long run, the complaint case is succeeded.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed Ex-party against the opposite parties with a cost of 30,000=00 (thirty thousand) only.
The opposite parties are directed severally or jointly to pay Rs. 1, 00,000=00 (Rs. one lakh) only as compensation amount for their deficiency of service occurred under Section 2(11) and unfair trade practice occurred under Section 47 of the Consumer Protection Act 2019.
The O. Ps. are also directed to register the Deed of Conveyance of the said plot of land and provide possession with possession letter in favour of the complainant within 60 days from the date issuing this Order.
The complainant is directed to bear the charge of Registration for Deed of Conveyance.
Alternatively,
The O. Ps. are jointly or severally liable to bear Rs. 30,000=00 only as litigation cost.
The opposite parties are directed severally or jointly to pay Rs. 1,00,000=00 (Rs. one lakh) only as compensation amount for their deficiency of service occurred under Section 2(11) and unfair trade practice occurred under Section 47 of the Consumer Protection Act 2019.
The opposite parties are directed to refund to the complainant the paid amount of Rs. 1, 62,500=00 only with 10% simple interest from the date of Agreement for Sale signed on 25/9/2005.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
Dictated and Corrected by me.
