DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. NO- 47/2016
Date of Filing: Date of Admission: Date of Disposal:
22.01.2016 25.01.2016 23.08.2018
Complainant :- 1. Smt. Sanjukta Mitra (Ghosh),
D/o Late Bimal Krishna Ghosh,
W/o Sri. Samiran Mitra,
Avinandan Apartment, 5th Floor, 870,
Lake Town, Block-A,
Kolkata-700 089.
=Vs=
Opposite Parties:- 1. M/s. A.S.G. Construction,
P-870, Lake Town, Block-A
Kolkata-700 089.
2. Smt. Soma Mukherjee,
W/o Sri. Goutam Mukherjee.
3. Sri. Goutam Mukherjee,
S/o Late Roma Pati Mukherjee,
26, Rajani Gupta Row, Kolkata.
4. Sri. Asoke Kumar Sawoo.
5. Ela Kabasi, W/o Soumen Kabasi, 26B,
Mahatma Sisir Sarani (Galif Street),
Kolkata-700 003 and also at-
A-102, Flat no-20, Saporji Complex,
New Town, Area-III,
Kolkata-700 156.
6. Sri. Hiran Kumar Sawoo, All sons of
Late Pulin Behari Sawoo,
26B, Mahatma Sisir Sarani (Galif Street),
Kolkata-700 003 and also at-
Flat no-2B & 2C, Abhinandan, 870,
Block-A, Lake Town,
Kolkata-700 089.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ………………………Member.
Final Order
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not execute and register the deed of conveyance in her favour in respect of the flat along with the garage and did not take any step to finish the unfinished works till filing of this complaint.
Cont…………….2
:2:
The brief fact of the case of the Complainant is that the OP-1, 2 & 3 are the developers and the OP-4, 5 & 6 are the land owners. The OP-2 and 3 are the partners of the OP-1. Development agreement was executed by and between the said OPs being the landowners and developers. Power of Attorney were given in favour of the OP-1, 2 & 3 by the OP-4, 5 & 6 by which strength the OP-1, 2 & 3 were entitled to enter into an agreement for sale with the intending flat purchasers from the developer’s allocation. Accordingly the developers started to construct the building over the land of the land owners. Subsequently the developers invited the intending buyers to purchase the flats, garages, spaces etc. under the developer’s allocation as well as the land owners did similarly. Due to dire need of own residential accommodation one Mr. Somnath Ghosh visited the developers, expressed his intention to purchase a flat and accordingly Mr. Ghosh wanted to purchase the flat measuring more or less 1350 square feet on the 5th floor of the building. After perusal of the copies of development agreement, power of attorney and certain deeds, documents Mr. Ghosh intimated the developers that he is agreed to purchase the said flat and he was intimated by the developers that the total consideration of the flat is for Rs.60,000/- along with further price of construction. Accordingly both parties have entered into an agreement for sale on 03.01.1994 and according to the said agreement Mr. Ghosh paid the entire consideration amount of Rs.4,95,000/- in installments by way of cheques and demand drafts. Upon receipt of the said amount the developers issued money receipts accordingly in the name of the purchaser. But as per the terms and conditions of the agreement the developers have failed and neglected to deliver possession of the flat within the stipulated period and the purchaser on several occasions requested the developers to perform their part as per the terms of the agreement. However the developers ultimately delivered the possession of the said flat in favour of Mr. Somnath Ghosh, possession certificate was also issued in his favour on 05.03.1994, although entire construction work was not completed in terms of the agreement as well as in accordance with the sanctioned building plan. As Mr. Ghosh had to invest huge amount of money, so he took delivery of possession in the said flat under compelling circumstances and since then he is in possession of the schedule flat. Since possession Mr. Ghosh requested the OPs to complete the building as per the sanctioned building plan and to obtain completion certificate from the concerned Municipality, but the OPs did not pay any heed to his request and did not bother to take any step to complete the building by taking on false pretext one after another. Due to such inaction of the developers Mr. Ghosh became disgusted and made several written correspondences with the said OPs, but the OPs harassed him without taking any step. Due to non-completion of construction of the building the OPs could not obtain completion certificate and for this reason Mr. Ghosh could not execute and register the deed of conveyance in his favour. Hence he had to pass his days with great mental agony, harassment and pain.
Cont…………….3
:3:
As per the agreed terms the OPs delivered a separate covered car parking space measuring 144 square feet carpet area at the cost of Rs.75,000/- extra in excess and possession letter dated 02.12.1995 was duly issued in his favour. After getting the car parking space the developers was requested by Mr. Ghosh to execute and register the sale deed in his favour in respect of the schedule flat and car parking space, but to no effect. Ultimately flat owners association requested the OPs for execution and registration of the sale deed in favour of the purchasers and to complete the entire incomplete works, but as the OPs did not take any step then they agitated the matter before the Chairman of South Dum Dum Municipality with a request to do the needful by issuing a letter date 17.11.2005. Subsequently with the consent of the OPs possession in the said property was delivered in favour of one Samiran Mitra, brother-in law of Mr. Ghosh on the ground that he was not in a position to purchase the flat due to his financial crisis and the same was duly accepted by the developers. Mr. Samiran Mitra intimated the same to the OP-2 and 3 by issuing letter dated 24.05.2007. Thereafter Somnath Ghosh died on 14.06.2007 leaving behind his only sister-Complainant as his legal heir and representative. Then continuous request was made for execution and registration of the flat and car parking space to the OPs and the OPs asked to pay a sum of Rs.62,500/- for purchasing stamp and registration charges as well as fees and charges for execution and registration of the deed of conveyance of the flat and the car parking space. Accordingly the said amount was paid. But inspite of specific knowledge and consent the developers did not take any step for registration in favour of the present Complainant being the sole and only legal heir of the deceased Somnath Ghosh and flatly refused to accept the present Complainant as purchaser in respect of the scheduled flat and car parking space. Legal notice was issued, but the developers denied the status of the Complainant in respect of the said property. The Complainant approached to the OPs for registration of the sale deed, but the OPs did not pay any heed to her request illegally and arbitrarily asked the Complainant to vacate the schedule flat and garage on the ground that as none has come forward to show his or her legal right or authority to claim the schedule property by showing an order from the competent Court of law or by submitting Succession Certificate. The Complainant has mentioned that telephone and electric connections have been provided by the concerned department in her favour at the schedule property after being satisfied with the documents submitted by the Complainant, hence the OPs have no right to deny the status of the Complainant and cannot deny the fact that the Complainant is the beneficiary and only legal heir of the original purchaser Somnath Ghosh, since deceased. So the OPs are jointly liable to execute and register the deed of conveyance in her favour in respect of the flat and car parking space, when the OPs have allowed her to occupy, possess and enjoy the said flat and garage, not only that the Association is realizing the monthly maintenance charges and other charges from this Complainant. Without discharging their liabilities the OPs are claiming the present market price of the said flat and garage from her.
Cont…………….4
:4:
The Complainant realized that the OPs are trying to evict her from the said flat and garage and transfer the same in favour of any third party at a higher rate, then only having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to execute and register the deed of conveyance in her favour in respect of the flat and garage space, to obtain completion certificate in respect of the aid building from the concerned Municipality, to hand over the same to her, to finish the entire unfinished works, to refund the amount of Rs.62,500/- along with interest, to pay compensation to the tune of Rs.5,00,000/- due to mental agony, pain and harassment and litigation cost of Rs.25,000/- to her.
After admission of this complaint notices were issued to the OPs. The notices were duly served upon them and the OPs appeared before this Ld. Forum and prayed time for filing written version. But thereafter they did not turn up to contest the complaint either orally or by filing written version. Hence this Ld. Forum was pleased to fix the complaint exparte against the OPs as the OPs did not file their written version within the statutory period. The Complainant has adduced evidence on affidavit and also filed brief notes of argument.
We have carefully perused the record; documents annexed by the Complainant and heard argument at length advanced by the Ld. Counsel for the Complainant at length. It is seen by us that admittedly one Mr. Somnath Ghosh purchased one flat in the building constructed by the developers on the land of the land owners-the flat was purchased by the said person from the developer’s allocation, the total cost of the questioned flat of Rs.4,95,000/-, entire amount was paid by him through some installments, one car parking space was also allotted to him for a consideration price of Rs.75,000/- as extra amount, payment receipt issued in favour of the purchaser, possession certificate was provided by the developers to the said purchaser, due to non-completion of the building the OPs could not obtain the completion certificate from the concerned Municipality, inspite of getting possession in the said flat the OPs did not take any step to execute and register the deed of conveyance in respect of the flat along with car parking space in favour of the purchaser, through several verbal requests was made and written correspondences along with legal notices were also issued to this effect, as Somnath Ghosh was suffering from urinal bladder carcinoma on 14.06.2007 he expired, during his life time the present Complainant being his sister and her husband used to reside at the said flat along with her only brother, after demise of Somnath Ghosh his sister being the Complainant is still residing therein, she got telephone and electric connection in her name at the said building, she used to pay monthly maintenance charges along with other charges to the flat ownership association on a regular basis. The allegation of the Complainant is that the OPs did not take any step for registration of the sale deed in her favour in respect of the flat and the garage space till filing of this complaint inspite of several verbal requests along with legal notices to the OPs.
Cont…………….5
:5:
In reply to the legal notice she was intimated by the developers through legal notice that until and unless appropriate legal step is taking to prove her legal status according to law and if she shall be able to prove her legal status, the developers are not in a position to register the sale deed in her favour and in this respect order from the competent Court is necessary. As the grievance of the Complainant have not been redressed by the OPs before coming to the Court of Law, hence by filing this complaint the Complainant has sought for certain reliefs.
Be it mentioned that though in the petition of complaint the Complainant has mentioned several names of the unfinished works in the said building, but as the Complainant did not make any application for appointment of one Ld. Engineer Commissioner with a view to ascertain the gravity of the unfinished works in the said building, hence we are not inclined to allow the prayer for direction to the OPs for completion of entire unfinished works. In this respect it is pertinent to mention until and unless entire works are completed as per the sanctioned plan in the entire building, the OPs cannot obtain the completion certificate from the appropriate authority. Therefore if the OPs cannot obtain the same, then question does not arise to provide the completion certificate to the Complainant as sought for.
Now question is cropped up as to whether the OPs are under the obligation to execute and register the deed of conveyance in favour of the present Complainant or not. Documents speak that the purchaser namely Somnath Ghosh has already expired on 14.06.2007 as the death certificate issued by the concerned Hospital wherein he was under the treatment and breathed his last as well as the cremation certificate issued by the Kolkata Municipal Corporation. From the affidavit as made by the Complainant before the First Class Judicial Magistrate, Seladah it is apparent to us that before the death of Somnath Ghosh his father and mother died and Somnath Ghosh and the instant Complainant are the son and daughter of their parents. As Somnath Ghosh has expired, now at this juncture apart from his sister-Complainant none is there in this world as the legal heir and representative of the deceased Somnath Ghosh. The Complainant being the only legal heir of the deceased has prayed for before the Magistrate, Seladah so that she can get the flat registered. In this respect we are of the view that as none has yet been approached before the appropriate authority claiming himself/herself being the another legal heir of the deceased, hence in our opinion there is nothing to disbelieve the statement as made by the Complainant on affidavit.
In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’
Cont…………….6
:6:
The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notices and their appearance, the OPs chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.
In our opinion the Complainant is entitled to get compensation and litigation cost from the OP-1, 2 & 3 as the said OPs did not bother to take appropriate step for registration of the sale deed for a prolonged period inspite of several requests and written correspondences. Due to such inaction the Complainant had to face harassment, mental agony and pain for which she is entitled to get compensation and by filing this complaint the Complainant has to incur some expenses, for this reason she is also entitled to get litigation cost.
In our opinion as the Complainant has successfully proved her case by adducing cogent material, hence the complaint succeeds.
Going by the foregoing discussion hence it is ordered that the consumer complaint being no-47/2016 is hereby allowed in part exparte with cost. The OPs are directed to execute and register the deed of conveyance in favour of the Complainant in respect of schedule flat and car parking space within a period of 45 days from the date of this order, in default the Complainant will be at liberty to get it register through the machinery of this Ld. Forum. The OP-1, 2 and 3 are directed either jointly or severally to pay compensation to the tune of Rs. 3,000/- to the Complainant due to unnecessary harassment, mental agony and pain and litigation cost of Rs. 2,000/- to the Complainant within a period of 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire order in execution as per provision of Law.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member President
Dictated & Corrected by
