DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No.138/2021
Date of Filing: Date of Admission: Date of Disposal:
16.08.2021 29.09.2021 02.06.2023
Complainant/s:- | 1.Sri Parswanath Biswas, S/o. Sri Lakshmi Kanta Biswas, LP.59/5/4, Dr. Lal Mohan Banerjee Road, Flat No.S-7, 2nd Floor, Moumi Apartment, P.O. Panihati, P.S. Khardah, Kollkata-700114. = Vs= |
Opposite Party/s: | 1.Housing Developer, 93, Raja Ram Chand Ghat Road, P.O. Panihati, P.S. Khardah, Dist- North 24 Parganas. Represented by its sole Proprietor:- 2.Sri Bholanath Mondal, S/o. Late Mahadeb Mondal, School Road, P.O. Sukchari Kalitala, P.S. Khardah, Dist- North 24 Pgs. 3.Gouranga Bandopadhyay. 4.Swapan Bandopadhyay. 5.Mrs. Sumita Sanyal (Bandopadhyay). 6.Mrs. Sujata Chatterjee ( Bandopadhyay) All sons and daughters of Late Hirendranath Bandopadhyay. 7. Samir Kumar Bandopadhyay, S/o. Late Anil Kumar Bandopadhyay. 8(a)Debal Chakrabort, S/o. Late Debasish Chakraborty. 8(b) Debomita Chakraborty, D/o. Late Debasish Chakraborty, 346A/1, Mahendra Banerjee Road, P.O. Parnasree, P.s. Behala, Kolkata-700060. 9.Partha Bandopadhyay. 10.Mrs. Joyashree Bandopadhyay 11.Mrs. Tanushree Bandopadhyay. 12.Mrs. Sutapa Bandopadhyay. 13.Mrs. Gopa Bandopadhyay. All sons and daughters of Late Surya Kumar Bandopadhyay. 14. Smt. Mousumi Bandopadhyay. 15.Smt. Mahuya Bandopadhyay. Both are daughter of Late Sudhir Kumar Bandopadhyay. 16.Sri Aditya Bandopadhyay. Contd/-2 C.C. No.138/2021 :: 2 :: 17.Sri Jayanta Bandopadhyay. Both sons of Late Sudhangshu Kumar Bandopadhyay. 18.Sri Sadananda Bandopadhyay. 19.Sri Nityananda Bandopadhyay, Both sons of Late Hemendra Kumar Bandopadhyay, O.P. Nos. 2 to 6 and 7 and 8 to 19 are residing at Dr. Lalmohan Banerjee Road, P.O. Panihati, P.S. Khardah, Dist- North 24 Parganas, Kolkata. |
P R E S E N T :- Smt. Sukla Sengupta………………….President
:- Smt. Monisha Shaw …………………. Member.
:- Sri. Abhijit Basu …………………. Member.
JUDGMENT
The complainant filed this case u/s. 35 of the Consumer Protection Act, 2019.
The facts of the case is as follows:-
The O.P. No.1 is a constructional Firm and O.P. No.2 is sole proprietor of O.P. No.1 and / or developer and O.P. No.3 to 19 are the land owners of the property. The said land owners and developer made an agreement for develop one multistoried building upon amalgamated holding No.133, Dag No. 1248, Khatian No. 984, R.S. Khatian No. 1929, Mouza- Panihati at Lalmohan Banerjee Road, Ward No.4, within Panihati Municipality, P.S. Khardah, Dist- North 24 Pgs, within the jurisdiction of this commission. O.P- developer sanctioned a building from Panihati Municipality being sanction plan No. 1116 dated 25.02.2002.
The O.P. No.2 of this case directly approached the complainant to purchase a flat of his said project. On good faith and oral agreement complainant agreed to purchase a flat being Nos.S -7, on the 2nd floor, South facing measuring about 721 Sq. ft. with all common amenities at amalgamated holding No. 133 (previously holding Nos. 133 to 139), Dag No. 1248, under Khatian No. 984, R.S. Khatian No. 1929, J.L. No.19, R.S. No. 32, Touzi No.155, Mouza-Panihati at Lal Mohan Banerjee Road, Ward No.4 within Panihati Municipality, P.S. Khardah, Dist- North 24 Parganas. The said project was named as ‘Moumi Apartment’. The said flat was booked for total consideration money of Rs. 3,69,100/-. The O.P deducted Rs. 2,100/- which mentioned in the slip of full and final payment). The complainant paid full consideration of Rs. 3,64,100/-. The complainant paid full consideration amount on different dates and in the pad of Housing Developer issued receipt of money for consideration and extra work of the flat since 09.06.2002 to 27.07.2003 as full and final payment.
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On 14.04.2003 the O.P. developer handed over the possession of the said flat. After payment of full consideration amount the complainant on several occasion went to the O.P. No.2 and/ or office of O.P. No.1 for registration the said flat (which is mentioned in ‘B’ schedule of complaint) but on every occasion the developer delayed the matter with plea of false pretext and some time for his personal inconveniences and delayed the matter for registration the Deed of Conveyance. Thereafter in the year 2005 O.P. developer orally informed that a civil litigation are pending before the competent court against land owners and also submits that the land owners cunningly failed and neglected to hand over the total land as per development agreement. Other O.Ps were never whisper about any litigation regarding the said matter. Suddenly complainant came to know that landlady Renu Bandopadhyay died on 01.12.2006 leaving O.P. Nos.7 and 8. Thereafter O.P. No.2 the developer refused to register the Deed of Conveyance. It is mentioned that the said complainant purchased the said flat from the allocation of the developer.
Latter, it was also heard from the developer that the said civil disputed matter with the developer and landlord was solved.
After died of one of the land lady Renu Bandopadhyay on 01.12.2006 the power of attorney being No. 315/2000 was seized and has lost its force. The present landowners directly shouted that due to unfair acts of O.P. Nos. 1 and 2 they are also badly deprived as such they have nothing to do. Complainant became the victim of circumstances and unfair acts of all the O.P. members who were / are individually selfish to gain their / its own profit. By that time one after another land owners died leaving behind the legal heirs and successors. On 19.09.2009 Surya Kumar Bandopadhyay died intested leaving behind present O.P. Nos. 9 to 13 thereafter on 26.12.2012 Hirendra Bandopadhyay died intested leaving behind the present O.P. Nos. 3 to 6 (as wife died on 16.12.2018) and thereafter on 04.11.2013 Sudhanshu Kumar Bandopadhyay died leaving behind O.P. Nos. 16 and 17 as legal heir and successors and on 26.10.2016 Sudhir Kumar Bandopadhyay died leaving his heir being O.P. Nos. 14 and 15.
Complainant along with other purchasers went to the developer many time for execute the deed of conveyance in respect of ‘B’ schedule property mentioned in the complaint and handed over completion certificate and every occasion the developer wants some time. But lastly complainant went to the developer in the last part of April, 2021 for execution and registration for Deed of Conveyance and handed over the completion certificate but O.P developer refused to do the same. Hence, the complainant filed this complaint case. The case is within the territorial and pecuniary jurisdiction of this commission. The notice served upon the opposite parties but they did not appeared before this commission. This is a continuous
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cause of action as the O.Ps are failed and neglected to fulfil the terms of agreement for sale or to invite to registration work and handed over completion certificate. It is negligence on the part of the developer and other opposite parties as it is breach of duty caused by omission to do execution for registration of deed of conveyance and hand over the completion certificate.
1.Whether the case is maintainable or not?
2. Whether the case filed within time or not?
3. Whether the complainant is entitled to get relief or reliefs or not?
Reason for Judgment
Complainant booked a flat being No.S-7 on the 2rd floor South facing which mentioned in schedule ‘B’ of the complaint for a consideration money of Rs.3,67,000/-. The complainant paid Rs.3,67,000/-as full and final payment and upon the pad of the opposite party No.1 issued receipts for full consideration amount andsigned by O.P. No.2 as owner of the firm and /or developer on 27.07.2003. Though in the year 2003 the O.P developer handed over the possession of the flat. But it was the duty of the developer and landowners to execute and register the deed of conveyance in favour of the complainant which is negligence on the part of the O.P. members and also deficiency of service on the part of opposite parties.
In this case complainant is a consumer and opposite parties are service provider as per Consumer Protection Act but the opposite parties failed and neglected to provide their service which will be treated as deficiency of service. Regarding limitation for filling the case we found that it is continuous cause of action shall run till registration of the Deed of Conveyance and handed over the completion certificate. The developer refused lastly on last part of April, 2021. Therefore, this case is filed within limitation period. As the developer received full consideration amount and handed over physical possession. The land owners made development agreement with developer therefore both are liable to execute and register the Deed of Conveyance and handed over the completion certificate.
The complainant proves his case hence he is entitled to get relief.
Hence,
it is ordered,
that the case being No. 138/2021 be and the same is allowed exparte as opposite parties did not appear this case.
It is hereby directed the opposite parties to execute the deed of conveyance of suit property and register the Deed of Conveyance of the suit property before competent
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authority and handed over completion certificate to the complainant with Rs. 10,000/- for litigation cost within two months from the date of judgment.
Failing which this complainant has liberty to file execute case as per law.
Let plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated & Corrected by me
Member
Member Member President
