DATE OF FILING : 06-03-2012.
DATE OF S/R : 05-04-2012.
DATE OF FINAL ORDER : 31-08-2012.
Sri Bivekananda Mayur,
son of Rabindranath Mayur,
of CT.I. Dasnagar, P.O. Dasnagar, P.S. Jagacha,
District –Howrah-------------------------------------------------------------- COMPLAINANT.
- Versus -
1. K.C. Panja & son,
represented by its proprietor Susanta Panja,
having its office at Ichapur Canal Side ( Purbapara ),
P.O. Santragachi, P.S. Jagacha,
District – Howrah.
2. Sri Samar Kr. Pallay,
3. Sri Murari Mohan Pally,
4. Sri Parashnath Pallay,
5. Sri Sushil Kr. Pallay,
6. Sri Ashok Kr. Pallay,
7. Sri Subrata Kr. Pallay,
all residing at 21/1, Kantapukur 3rd bye Lane.
P.S. Bantra, District – Howrah.---------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the o.ps. to make over the possession of the schedule property ( flat ) in favour of the complainant in habitable condition, to execute registration of sale deed in favour of the complainant together with compensation to the tune of Rs. 4 lacs plus litigation costs of Rs. 25,000/-.
2. The complainant as per written agreement for sale dated 10-08-2009 of
the schedule flat at 1st floor in flat no. 104 measuring more or less 840 sq. ft. situated
at 62/11/1, Ichapur Road, P.S. Bantra, District – Howrah, and paid Rs. 3,60,000/- on several dates to the o.p. no. 1 out of total consideration amount of Rs. 8,40,000/-. Subsequently the o.p. nos. 1 & 2 in collusion with the rest of the o.ps. sent another agreement dated 27-01-2010 to the complainant seeking the consent of the complainant for enhancing the total consideration amount from Rs. 8,40,000/- to Rs. 8,63,000/-. The o.p. no. 1 by sending one advocate’s letter on 29-03-2010 demanded the rest amount within 15 days failing the agreement would be terminated deducting 20% of the paid amount. Against such one-sided gesture of the o.ps. the complainant filed one Civil Suit being no. 104 of 2010 wherein the Ld. Civil Judge granted one interim order in the form of statuesquo. Subsequently the o.ps. filed one application under Order 7 Rule 11(d) C.P. Code which was allowed by the ld. Civil Judge with the observation that Civil Court has no jurisdiction and directed the plaintiff to file the identical case U/S 6 of the West Bengal Building ( Regulation and Protection Act) 1993 before the appropriate Forum. Hence the complaint.
3. The o.p. no. 1 by filing written version challenged the maintainability of the complaint as one appeal is pending before the Civil Forum ; that this Forum has no jurisdiction to try this case and it requires to be filed before the appropriate authority West Bengal Building ( Regulation and Protection Act ) 1993 ; that the instant complaint is barred by limitation ; that the instant complaint is filed upon an unregistered agreement for sale dated 10-08-2009. So the complaint should be dismissed.
4. Notices were served upon the rest of the o.p. nos. 2 to 7 who refused to accept the notice. Hence the complaint is heard ex parte against them.
5. Upon pleadings of both parties three points arose for determination :
i) Whether the complaint is maintainable or whether it is barred by limitation ?
ii) Is there any deficiency in service on the part of the O.Ps. ?
iii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
6. POINT No. 1.
Ld. Lawyer for the o.p. no. 1 submitted that the case is not maintainable before this Forum in view of the decision reported in 2012 (1) WBLR ( CPSC ) page 662. He further submitted that this dispute being between the purchaser and the developer, it should be referred before the Officer of the State Government for adjudication and this Forum has no jurisdiction to entertain such disputes. In support of his claim he cited one decision reported in 2007(3) WBLR ( Cal ) page 98.
7. We have gone through the decision as reported in (2012)1 WBLR ( CPSC) 662. But the fact remains that mere pendency of a civil suit between the parties cannot disentitle the complainant from praying speedy relief as per the C.P. Act, 1986. In the Title Suit No. 104 of 2010 the complainant has prayed declaration that the plaintiff ( complainant ) is the bonafide purchaser as per agreement dated 10-08-2009 with further prayer for a direction upon the defendants restraining them from transferring the suit property to any 3rd party. In the title suit the complainant never prayed for direction upon the o.p. no. 1 for execution of the sale deed in respect of the suit property. So the citations cannot have any application in the instant case.
8. The other decision as reported in (2007) 3 WBLR ( Cal ) 98 cannot also be applicable in the instant case. This is because the o.ps. very cleverly took refuse to two sets of agreement, the earlier being repudiated and the later being unilaterally enforced. Though the Section 12A (1) of the West Bengal Building ( Regulation and Protection of Construction and Transfer by Promoters ) Act, 1993 ousts the jurisdiction of the Civil Court to entertain any question regarding the purchaser and promoter dispute, cannot disentitle the complainant from preferring the instant Forum which is a creature of another statute namely Consumer Protection Act, 1986. The provision of the instant statute is for getting speedy remedy from this quasi Civil Forum.
9. With respect to the point of limitation we are of the view that the cause of action first arose on 29-03-2010 when the ld. Lawyer for the o.p. no. 1 sent a letter to the complainant stating unilateral deduction of 20% of the paid amount. The cause of action is bundle of facts. If we discard the subsequent two dates namely 06-04-2010 or 04-03-2012, we trace only 23 days delay in filing the case. But this delay is further substantiated by the G.D.E. dated 06-04-2010 lodged with the Bantra P.S. by the complainant being no. 347 of 2010 against the one sided high handed gesture on the part of the o.p. no. 1. Naturally we are of the view that the complaint is not barred by limitation. The point no. 1 is accordingly disposed of.
POINT NOS. 2 & 3 :
Both the points are taken up together for consideration. As per the agreement for sale dated 10-08-2009 the complainant paid Rs. 3,60,000/- which it is apparent from the enclosures of money receipts. The total consideration money was fixed at Rs. 8,40,000/- for a flat measuring 840 sq. ft. situated at 62/11/1, Ichapur Road, P.S. Bantra, Howrah. If the greed for money of the o.ps. dislodged them from the earlier stipulations, the complainant is not to blame. The subsequent agreement dated 27-01-2010 cannot be designated to be an agreement as the complainant never recorded his signature there. It was sent to the complainant for ratification and obtaining his signature towards approval of the enhanced amount to the tune of Rs. 23,000/-. Therefore, the complainant has already paid Rs. 3,60,000/- out of the agreed amount of Rs. 8,40,000/- for a 840 sq. ft. flat. The o.p. no. 1, therefore, cannot have any respite from the rigours of law. It appears from the conduct of the o.ps. that they left no stone unturned to deprive a bonafide intending purchaser. Since a chunk amount though not 50% of the total amount, has been paid to the o,ps, they have no way out to deliver the flat in complete and habitable condition and to execute the deed of conveyance in favour of the complainant, subject to the payment of the rest amount of Rs. 4,80,000/-. Therefore, we are of the view that this is a fit case for granting relief to the complainant. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 17 of 2012 ( HDF 17 of 2012) be and the same is allowed on contest with costs against the O.P. no. 1 and ex parte with costs against the o.p. nos. 2 to 7 .
The O.P. no. 1 be directed to deliver the flat no. 104 measuring 840 sq. ft. including 50% super built up area together with the proportionate undivided and impartible share in the land situated at 62/11/1, Ichapur Road, P.S. Bantra, Howrah, subject to the payment of the rest of the consideration amount of Rs. 4,80,000/- by the complainant and to execute the registration of the sale deed in favour of the complainant within 60 days from the date of this order.
The complainant is entitled to a compensation to the tune of Rs. 2,00,000/- for mental pain and prolonged harassment. He is further entitled to a litigation costs of Rs. 10,000/-.
The o.ps. be directed to pay the total amount aggregating Rs. 2,10,000/- within 60 days from the date of this order failing the amount shall carry interest @ 12% per annum.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
