DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 642/2014
Date of Filing: Date of Admission Date of Disposal:
27.11.2014 01.12.2014 23.06.2015
PETITIONERS = Vs. = O.Ps.
1. Mr. Uttam Banik 1. Ganpati Group, of AE-23,
S/o. Lt. Nandalal Banik Rabindrapally, Kestopur,
2. Mrs. Ratna Banik P.O.-Prafullakanan, P.S.-Rajarhat
W/o. Sri Uttam Banik presently Baguiati, Kolkata-700101
both are residing at Dist-North 24 Parganas.
Aman Apartment, 2. Rajesh Jaiswal,
Krishnapur, Kamalpark, sole proprietor of Ganpati Group
Rabindrapally, S/o. Lt. Bhagwan Prasad Jaiswal
P.O.-Prafullakanan, of AE-23, Rabindrapally, Kestopur
Flat No-CD on the 2nd floor, P.O.-Prafullakanan, P.S.-Baguiati,
P.S.-Baguiati, Kolkata-700101, Kolkata-700101.
Dist-North 24 Parganas. 3. Sri Bablu Ghosh
W/o. Lt. Sachindra Ghosh
4. Smt. Malina Ghosh
W/o. Sri Swapan Ghosh
Both are residing at 53, Jubleepark
P.S.-Jadavpur, Kolkata-700033.
J U D G E M E N T
Facts of the case, in short, is that the OP No-1 is the proprietorship firm and the OP No-2 is proprietor of the said firm and developer by profession. The OP No-3 and 4 is the landlord in respect of the land as written specifically mentioned in the schedule-A.
Complainants stated that the OP No-3 and 4 being the landowners were jointly entered into an agreement for development of the land with the OP No-1 and 2/developer under certain terms and conditions mentioned in the said development agreement. Accordingly for the purpose of smooth running construction said landowners i.e. the OP No-3 and 4 executed a general power of attorney in favour of the said developer, the OP No-1 and 2.
Dictated and corrected Contd. ….2/-
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Complainants also stated that by virtue of said developer agreement as well as by dint of General power of attorney the OP No-1 and 2 have completed the building namely Aman Apartment in a accordance to the sanctioned building plan being serial no-832/2001/2002 which was issued by the local Rajarhat Gopalpur Municipality and thereafter said OP No-2 being the proprietor of the GANPATI GROPUP (OP No-1) as developer and with the strength of power of attorney he invited the intending buyers to purchase the flats under Developers allocation and his own allocation and this complainant having heard the same, visited the OP No-1 and 2 and expressed their intention to purchase making initial payment towards booking of the flat, the complainants told the OP No-1 and 2 assured to supply copy of entire document in respect of the project as well as the schedule flat and it is further assured that he would be co-operate in all respect for completion of purchased of the schedule flat accordingly these complainants agreed to purchase the flat specifically described in the schedule.
Complainants further stated that on being satisfied with the assurance of the OP No-1 and 2 the complainants entered into an agreement for sale dated 21.01.2005 with the OP No-1 and 2/developer under certain terms and conditions mentioned therein. In terms of the said sale agreement dated 21.01.2005 the “B” schedule flat and garage being flat no-“C” and “D” of the 2nd floor of the Aman Apartment measuring and found 1300 sq. ft super built up area more or less and one covered garage space measuring about 200 sq. ft super built up area settled of consideration of Rs 10, 75,000/- and accordingly the complainants jointly paid a sum of Rs 5, 00, 000/- by cash as earnest money to the developer which received and acknowledged by the developer.
Complainants stated that although it is obligatory duties of the said GANPATI GROUP and its proprietor the OP No-1 and 2 to register deed of conveyance after payment of full consideration of the “B” schedule property and accordingly in the said sale agreement dated 21.01.2005 these complainants already paid entire consideration of the flat and garage in favour of the OP No-1 and 2/developer, but the developer did never take any steps to perform his duties upon the complainants by delivering all relevant documents in respect of the “B” schedule property.
Complainants further stated that there is a gross negligence on part of the OP No-1 and 2 in rendering their service to the complainants and also high deficiency in nature due to such deficient and negligent act and conduct of the OPs these complainants suffered a lot and received harassment for that reason the OPs are liable to compensate the complainants.
Dictated and corrected Contd. ….3/-
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OP No-4 contested the case by filing written version and denied all the allegations of the complainants. Other OPs did not turn up to contest the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both complainant and OP No-4 have filed affidavit in chief in support of their contention. We have perused the affidavit in chief of the complainant and the OP No-4 and also heard the submission of the Ld. Lawyer of both the parties at length. OP No-4’s only defense is that OP No-2 who is the sole proprietor of the OP No-1 died long ago and complainant did not substitute the legal heirs of the OP No-2 in this case. So, without impleading the heirs is the OP No-2 and 3 this case is not maintainable and should be dismissed. In Paragraph-7 of the written version the OP No-4 has alleged that OP No-3 Bablu Ghosh, died on 24.02.2005 and OP No-2 Rajesh Jaiswal, sole proprietor of the OP No-2, died sometimes in the year 2013 but complainant did not meet their legal heirs’ party in this case. Hence the case should be dismissed. Though complainants has filed an affidavit in chief after the filing the written version by OP No-4, complainants did not controvert that fact in his affidavit in chief. Besides, complainants did not take any steps to implead the legal heirs of the OP No-2 and 3 in this case inspite of knowing that they died long ago. Hence we are of the view, that when complainants knowingly the death report of the OP No-2 and 3 did not implead the legal heirs of OP No-2 and 3, the case should be abated against the OP No-2 and 3 and should be dismissed.
Hence
Ordered,
that the case be and the same is dismissed against all the OPs.
However, complainants are at given liberty to file fresh case against the legal heirs of the OP No-2 and 3.
Complainants and OP No-4 bear their own cost.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
