In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No. 351 / 2009 .
1) Sri Pinaki Halder,
201, Sairamsiri Sampad Apararts, 7-1-29/21, Leela Nagar,
Bagumpat, Hyderabad-500016. ---------- Complainant
---Versus---
1) M/s. Bibek Chatterjee,
B-281, Lake Gardens, Ground Floor, P.S. Lake, Kolkata-700045 and
Residing at :-11/C, T.N. Majumdar Street, P.S. Tollygunge, Kolkata-700029.
2) Sri Pulak Kumar Mitra,
175, Lake Gardens, P.S. Lake, Kolkata-700045.
3) Sri Aloke Kumar Mitra,
24/4K, Lake Road, P.S. Lake, Kolkata-700045.
4) Sri Tilak Mitra,
175, Lake Gardens, P.S. Lake, Kolkata-700045.
5) Sri Salak Mitra,
24/4K, Lake Road, P.S. Lake, Kolkata-700045
and also of : - 9A, Aswani Nagar, Regent Park, Kolkata-40.
6) Smt. Shovana Dutta,
175, Lake Gardens, P.S. Lake, Kolkata-700045
7) Smt. Bandana Ghosh,
175, Lake Gardens, P.S. Lake, Kolkata-700045
8) Smt. Aruna Bose,
175, Lake Gardens, P.S. Lake, Kolkata-700045 ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. A. B. Chakraborty, Member
Order No. 2 3 Dated 2 7 / 0 1 / 2 0 1 2 .
The petition of complaint u/s 12 of the C.P. Act, 1986 has been filed by Sri Pinaki Halder against o.ps. for execution of deed of conveyance and also for completion of her flat booked on payment of consideration.
The fact of the case, in brief, is that on 17.4.98 the complainant entered into an agreement for sale with o.p. no.1 and Smt. Snehalata (since deceased), mother of o.p. nos.2 to 8 for purchase of a proposed self contained flat at second floor measuring more or less 925 sq.ft. at premises no.175 Lake Gardens, Kolkata-45 for a total consideration of Rs. 7,20,000/-. The complainant took possession on 09/10/2007.
The entire consideration money of Rs. 7,20,000/- together with the cost of car parking space was paid to the o.p. no.1. But in spite of giving assurances the o.p. no.1 failed to perform his obligation and duties as per the said agreement and also did not take initiative to execute the deed of conveyance. As he constructional works could not be completed the building completion certificate was not also supplied. In spite of repeated request the o.p. no.1 turned a deaf ear to the problems of the complainant.
Finding no other alternative the complainant has filed the instant case with a prayer for issuing direction towards;
i) completion of building/flat in all respect by the o.ps. and handing over a copy of completion certificate to the complainant,
ii) execution of deed of conveyance,
iii) payment of a compensation of Rs.2,00,000/- for his mental agony and harassment,
iv) payment of a litigation cost of Rs.20,000/-.
D E C I S I O N W I T H R E A S O N S
Only o.p. no.3 contested the case and the case proceeded ex parte against other o.ps. We have perused the evidences, BNAs and other papers adduced by the contesting parties and have heard the arguments advanced by the o.p. no.3 and the ld. advocate of he complainant.
As per development agreement between Smt. Snehalata Mitra and o.p. no.1, Smt. Mitra will hand over the vacant possession of he premises having existing building to the o.p. no.1 the developer. After taking possession of the premises the o.p. no.1 will pay Rs.1,25,000/- towards cost of demolished material and will construct a five storied / five storied building thereon. The o.p. no.1 will construct eight residential flats out of his own fund of which four flats will be handed over to the owner for accommodating her four sons and the rest will be sold by o.p. no.1.
It has also been laid therein that all the occupants and/or owners of both the owners flat as well as developers’ flats shall register their flats with the competent authority under W.B. Apartment Ownership Act, 1972. Every flat shall have a separate electricity meter and the individual flat owners shall be liable to pay for their electricity consumed.
The developer was given the liberty to sell the flats in his share by the clause 18(d) Not to do any act, deed or thing whereby the developer may be prejudicially affected from the right of selling, transferring, dealing with and/or disposing of the developer’s share of the building. The conveyance of the flat earmarked for developers’ share shall be made and executed and registered by the owner in favour of the developer and/or developers’ nominee or nominees or the person or persons interested to purchasing or otherwise acquiring flat and proportionate share of the garage space in the developer’s area. It has been univocally expressed in the agreement that the project is not under a joint venture between the land owner and the developer.
It was also been expressedly agreed between the parties hereto that the developer shall not deliver possession of or execute any sale deed in respect of any flat to any purchaser without first offering the owner to take possession of the owners’ allocations in finished condition. A general power of attorney was also executed on 30.6.97 in favour of the developer.
The only contestant o.p. no.3 in his evidence has avered that the question for executing any conveyance to the complainant does not arise as there was no privity of contract between the complainant and o.p. nos.2 to 8 and that the building has not yet been completed in all respects. He has also contended that the flat of the complainant is attached by Andhra Bank.
In our opinion the contention of the o.p. no.3 is evasive as in the development agreement owner is deemed to include her four sons only to the exclusion of all others and such evasive evidence is not acceptable in the eye of law. O.p. nos.2 to 8 are occupying their flats on the strength of the said agreement. There is no documentary evidence that the flat of the complainant is under attachment. If there is an attachment for default of the developer the complainant is not liable to pay of the dues of the o.p. no.1.
The o.p. no.1 gave the possession of the self contained flat in the southern side of the second floor measuring more or less 925 sq.ft. by a letter dt. 09/10/2007 on a stamp paper. In this letter he declared that the entire consideration money had been received by him from the complainant and assured that the flat would be completed in all respect within a period of three months and thereafter deed of conveyance would be executed.
Though the possession was to be given after completion of the building in all respects, as per development agreement, it appears that the purchasers and also the owners have already taken possession of their respective flats. Recovery of khas possession is not possible at this stage.
It appears from a paper publication dt.23.4.11 in the Anandabazar Patrika that summons has been made through the publication to Shri Bibek Chatterjee in a case under D.R. Tribunal. In other words it may presume that o.p. no.1 may not be available or become absconding.
The o.p. no.1 has flouted almost all the terms and conditions of the agreement for sale. He is definitely a service provider and there is gross deficiency of service on his part. On the other hand the complainant who has paid the entire consideration money and abided by the terms and conditions is a consumer. Being a consumer he filed the instant petition under the Consumer Protection Act for speedy remedy. Moreover being a bona fide consumer he has the apprehension that his occupied flat may be transferred unlawfully to any other person. This Forum however given the interim order to the effect that the flat in question should not be transferred to any other person.
In view of the circumstances and also in consideration of the reality that the registration cost is going higher and higher and in order to mitigate the sufferings of the complainant and for establishing his lawful right over the flat we are of the opinion that the deed of conveyance in respect of the flat in question required to be executed and registered immediately in the present incompleted condition of the building.
Hence, ordered,
That the petition of complaint is allowed on contest against o.p. no.3 and ex parte against o.p. nos.1,2,4,5,6,7,8 and with cost to o.p. no.1 and without cost to other o.ps.
O.ps. are directed to execute the deed of conveyance in respect of the flat of the complainant in question within 45 days from the date of communication of this order.
If o.p. no.1 is not available the deed be executed by other o.ps. on service of notice to o.p. no.1.
The o.p. no.1 is also directed to complete the flat within 60 days from the date of communication of this order.
The o.p. no.1 is directed to pay a compensation of Rs.40,000/- (Rupees fifty thousand) only to the complainant for his harassment and mental agony and also a litigation cost of Rs.5000/- (Rupees five thousand) only, failing which the entire amount of Rs.45,000/- (Rupees fifty five thousand) only will carry an interest of 8% p.a. till realization .
The complainant is directed to send draft deed of conveyance to the o.ps. within 15 days from the date of communication of this order.
Supply certified copy of this order to the parties.
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MEMBER PRESIDENT
