DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

C. C.  CASE  NO.30/2016

  Date of Filing:                       Date of Admission                       Date of Disposal:

 19.01.2016                             21.01.2016                              06.03.2017   

 Complainant                                     = Vs. =                                          O.P.

Shri Swapan Kumar Aich,                                                1). Gems Construction,

S/o. Late B. L. Aich, E-942,                                              represented by its sole

Second Floor,                                                                      proprietor Shri Debajit Banik,

Chittaranjan Park,                                                                         S/o. Shri Gopal Ch. Banik,

New Delhi-110019.                                                           126/2/2, Nagendra Nath Road,                                                                                                 P.S. Dum Dum, Kolkata-28.

                                                                                                2). Smt. Mita Dutta,

                                                                                                D/o.Late Manasha Chand Dutta

                                                                                                1/22, Milan Pally,P.O.Italgacha,

                                                                                                P.S. Dum Dum, Kolkata-79,

                                                                                                Dist- North 24 Pgs.

P R E S E N T :- Pradip Kumar Bandyopadhyay…President                          

                       :- Sri. Rabideb Mukhopadhyay ….….Member

J U D G E M E N T

This case has been filed by the complainant- Shri Swapan Kumar Aich, on 19.01.16 under Section 12 of the C.P. Act, 1986 against Gems Construction and another.   

The facts of the case, to put in a nutshell are as below:-

The complainant Shri Swapan Kr. Aich has filed this case against two O.Ps namely Gems Construction represented by Sri Debajit Banik and Smt. Mita Dutta. The complainant is the intending purchaser of a flat measuring 730 Sq.ft as described in the Schedule of Property at page 6 of the complaint. The consideration money was settled at Rs. 10, 95,000/-. O.P. No.2 entered into a development agreement on 03.10.12 with OP-1 and a power of attorney was given by O.P. No.2 to O.P. No.1. On O.P. No.1’s insistence a sum of Rs. 6, 00,000/- was advanced by the complainant to OP-1 on condition that the residual money would be paid at the time of registration and delivery of possession of the flat. O.P. No.1 is not inclined to deliver possession and to register the flat in favour of the complainant, rather he has been trying to transfer the said flat in dispute to a 3^rd party. The cause of action arose on 26.05.15 when the parties entered into the Agreement for Sale. Hence, direction to discharge contractual obligation towards the complainant has been prayed along with compensation of Rs. 50,000/- and litigation cost of Rs. 15,000/-.

The O.P. No.2 has filed W.V. on 10.05.2016.

Challenging the contentions of the complainant and maintainability of this case being the owner of the property OP-2 stated that she entered into a development agreement on 03.10.12 with OP-1 and the power of attorney was executed. It was agreed in the development agreement that 50% of the property would go in favour of the O.P. No.1 and the rest 50% would go to O.P. No.2. O.P. No.1 violated all the terms and conditions of development agreement and transferred the six flats to S. K. Aich, one flat to Mr. Joy Raj Dhar and Puspendu Chakraborty each as per chart given at para16 of WV by OP-2. O.P. No.1 has also issued five possession certificates in favour of Smt. Mita Dutta as stated at chart of para-17 of the WV. The flats mentioned above are of different measurements. Taking advantage of absence of O.P. No.2 (as she has to frequently stay with her cancer patient son in Bombay and who subsequently died and her brother Bhaskar Dutta had to represent her case in the Forum), the O.P. No.1 managed to receive the money from different purchasers without the knowledge and consent of O.P. No.2. Thus, no relief can be claimed by the complainant against O.P. No.2. A petition was filed by O.P. No.2 on 03.01.17 with a prayer for filing questionnaire against the affidavit-in-chief of the complainant. But the same was not pressed (vide order No. 12 dated 03.01.17).

O.P. No.1 did not turn up to contest the case.

From the pleadings of the parties the following points have been framed for decision:-

1). Is the complainant a consumer?

2). Is the O.P deficient in service?

3). What relief the complainant is entitled to get?

Reasoned Decision

All the points are taken up together for the sake of brevity and convenience. Before we discuss the points in dispute, let us look at the documentary evidence.

The following documents have been filed by the complainant:-

1). Notarial Certificate.

2). Money receipt dated 06.05.2014.

3). Money receipt dated 19.05.14

4). Money receipt dated 07.05.2014.

5). Cremation Certificate dated 12.02.2016.

6). The report of Jewel Endoscopy Centre dated 24.01.2017.

The evidence-in-chief was filed by the complainant on 22.06.2016. The O.P.

No. 2 filed the Evidence-in-chief on 09.08.16.

The written argument was filed by the complainant and O.P. No.2 on 24.01.2017.  

From the brief notes of argument of the complainant we find that the complainant wanted to establish that O.P. No.1 is the service provider and O.P. no.2 is the land owner who conferred her power of attorney as well as entered into development agreement on //03.10.12. The complainant has also pressed for compensation as he has been suffering from mental agony.

In the BNA of O.P. No.2 we find that several allegations have been made against the O.P. No.1. From perusal of other records it appears at para 8 of E/ Chief of O.P. No.2 that in the Regd. General Power of Attorney (page 2, para-2) the O.P. No.2 is entitled to receive from intending purchaser or purchasers any earnest money and / or advance or advances and also the balance of purchase money after executing or signing such sale deed or deeds and to give good valid receipt and discharge for the same which will protect the intending purchaser or purchasers in my name and on my behalf and to take valid receipt from me.

It has been stated at the para-21 of E/Chief that no money was received by O.P. No.2’s bank a/c and no Money Receipt has been taken from O.P. No.2 by anybody. The O.P. No.2 asserted that for the complainant’s case O.P. No.1 is only responsible, not the O.P. No.2 who has also been deprived and cheated by O.P. No.1.

Moreover, as stated at para 3 of Development Agreement dated 03/10/2012, O.P. No.1 agreed to pay Rs. 8000/- per month to O.P. No.2 for alternate accommodation till possession of owners’ allocation is given but it appears that such assurance proved false.

O.P. No.2’s views to complainant as observed:-

Complainant is not a consumer under O.P. No.2. O.P. No.2) did not sign the Sale Agreement dated 26.05.2015 between O.P. No.1 (Developer being also her constituted Attorney) and the complainant. She (O.P. No.2) did not receive any money from any purchaser, all booking moneys were received by OP-1 and even she does not know the instant complainant. So, no case can lie against the O.P. No.2.

In a nutshell, O.P. No.2 prayed ….….….…..and such prayer seems logical and justified.............. to be expunged from any liability towards the complainant who seemingly dragged O.P. No.2 into the case.

O.P.No.1’s conduct to complainant:-

O.P. No.1 did not come forward to contest the case in spite of good service of summons and to contest the points of allegation leveled by the complainant against him. O.P. No.1 in spite of receiving advance money of Rs. 6,00,000/- out of total consideration money of Rs. 10,95,000/- for one flat as described in the SCHEDULE at page 6 of complaint and at page 5 of the Application u/s 13(3B) of the C.P. Act, 1986.

The complainant stated that O.P. No.1 refused to hand over possession and registration of the flats in question after receiving the balance consideration money even after lapse of agreed 12 months as averred at para-4 and 8 of complaint and para 4, 8 and 9 of Application u/s 13(3B). Taking the advantage of complainant’s residing in New Delhi, O.P. No.1 is trying to create 3^rd party interest and even in presence of the complainant, (when O.P. No.1 is contacted by complainant apart from making numerous tele-calls) unknown persons are inspecting the flat in question for purchase at the behest of O.P. No.1 who refused to obey contractual obligations depriving the complainant.

As per Sale Agreement clause 2, page 4, the Purchaser made advance of Rs 600000/- and the rest was to be paid within 12 months from the date of execution of the Agreement (i.e. by 26/5/2016) as per payment schedule which states at page 13 of the Agreement that balance amount has to be paid at the time of possession or registration, which has not yet been effected by OP-1.The complainant stated, as referred to above in the preceding paragraph that he repeatedly tried to contact physically and telephonically with the OP-1 but the latter did not respond to him with the intention to allegedly sell the flat to 3^rd party.

We have to rely on the unchallenged testimony of complainant’s version

of non-accepting of the balance consideration (Rs 4, 95,000/-) by the OP-1 from the complainant, as OP-1 did not take the opportunity of controverting the points of deficiency of OP-1 by way of taking part in the proceedings.

It is, therefore, clear from above analytical discussions that the complainant

is a consumer under OP-1 and not under OP-2; the OP-1 is deficient of rendering promised services of giving possession of the flat in question to the complainant in specified time after taking balance consideration money and for such lapse on the part of OP-1, the complainant suffered physical harassment and mental agony together with the apprehension of the transfer of his intended flat to any other 3^rd party by the OP-1.

In the circumstances of what have been analytically discussed above, we are constrained to pass

                                                      ORDER

1) That the complaint be and the same is allowed exparte under section 13(2)(b)(ii) of the Consumer Protection Act, 1986 as amended so far, against OP-1 represented by Debajit Banik; and OP-2 is expunged on contest from any liability towards the complainant;

2) That the OP-1 is directed to deliver possession and arrange registration in favour of the complainant, of the flat as per SCHEDULE of Flat given at page 11 of the Agreement for Sale dated 26^th May, 2015 read with the SCHEDULE OF PROPERTY  given at page 6 of the complaint, within 30 days from the date of this judgement , on receiving the balance consideration money of Rs 495000/- with 9% interest on the amount from 26^th May, 2016 till date of payment plus Rs 15000/- as electric meter charges, as per clause 8(n) of Agreement,  from the complainant;

3) That the complainant is directed to hand over/render the balance consideration money (Rs 4,95,000/-) with 9% interest to OP-1 as directed at later part of serial 2 of above order, within 30 days from the date of this order;

4) That OP-1 is directed to pay Rs 20,000/-(Twenty Thousand) as compensation for physical harassment and mental agony and Rs 5000/- (Five Thousand) as litigation cost, to the complainant within 30 days from the date of this order;

5) Non-compliance of above orders within the stipulated time by OP-1 shall attract punitive damage @ Rs 100/-(One Hundred) per day to be calculated after the expiry of stipulated time and deposited with the related State Govt. Account.

Let copies of the judgement be handed over to parties when applied for.

            Member                                                                            President

Dictated and Corrected by me.