DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 102/2022

Date of Filing:                Date of Admission                           Date of Disposal:

 07.04.2022                          21.04.2022                                          28.07.2023

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C.C. No. 102/2022

P R E S E N T                :-     Smt. Sukla Sengupta………………….President

 :-    Smt. Monisha Shaw …………………. M ember.                                              
                             JUDGMENT

This complaint is filed by the Complainant U/s 35  of the Consumer Protection Act, 2019 (as amended up to date) alleging deficiency in service as well as unfair trade practice against the OP as the OP did not take any step to redress his grievance till filing of this complaint.

The Complainant Nos. 1 and 2 are the husband and wife and wanted to purchase a flat from the O.P No. 1. The O.P. No. 1 is the representative of its partner O.P. No. 2 and 3. O.P. Nos. 1, 2 and 3 are developers. O.P Nos. 5 and 6 are the sons of Late Sibendra Nath Chakraborty. The O.P. No. 4 and Smt. Laxmi Rani  Chakraborty who died during the period of construction leaving behind the O.P. Nos. 5 and 6 as her only legal heirs and representative. They are the land owners in respect of the land. On 04.11.2009 the O.P No.1,2,3 have entered into a development agreement of the ‘A’ schedule property for multistoried building with the O.P no.4,5,6 and Smt. Laxmi Rani Chakraborty.

 The O.P Nos. 4, 5 and 6 and the said Smt. Laxmi Rani Chakraborty since deceased got a sanctioned building plan from Kamarhati Municipality and accordingly the O.P No. 1, 2 and 3 started the said multi-storied building on the ‘A’ schedule property. As per building plan the O.P No. 1, 2 and 3 developed the said building on the basis of power of attorney and the said O.P (i.e. O.P. Nos. 1,2 and 3) intimated to the purchaser, invited the intending buyers to purchase flat / flats, garage, garages, commercial space and other spaces.

The Complainants stated that they intend to purchase a residential flat being no. 3A on the 3^rd floor, measuring 670 sq.ft. more or less, specifically described in schedule ‘B’ and the total consideration amount of that flat Rs.8,71,000/- @ Rs. 1,300/- per sq.ft. Accordingly, the O.P. No. 1, 2 and 3 drafted and prepared the agreement for sale through their Ld. Advocate and the said agreement for sale was registered in the Office of Additional District Sub Registrar, Cossipore, Dum Dum, North 24 Parganas, Kolkata on 14/08/2012 Executed on 17/07/2012 and the said agreement for sale was numbered as 08468 for the year 2012 and the same was recorded in Page No. 886 to 922 of C.D. Volume No. 21 of Book No. 1. As per agreement for sale the Complainants paid the amount of Rs. 8,71,000/- to the Opposite Party Nos. 1, 2 and 3 and the O.Ps issued money receipt.

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C.C. No. 102/2022

In terms of the agreement for sale the O.P. Nos. 1, 2 and 3 were liable to deliver the complete flat in all respects to the Complainants within 12 months from the date of execution of the agreement but the O.P Nos. 1, 2 and 3 failed and neglected to deliver the possession of the ‘B’ schedule flat within the said period and as a result the Complainant had to pass their days with mental agony, pain and anxiety. Accordingly the Complainants demanded the possession of the flat in question. In the meantime, the O.P Nos. 1, 2 and 3 agreed to deliver the possession of the ‘B’ schedule flat in favour of the Complainants without any Possession Certificate and Completion Certificate.

The Complainant further stated after taking the possession of the ‘B’ scheduled flat the month of August, 2014 the Complainants had to request in several times to the Opposite Party to execute and register the proper deed of conveyance in respect of ‘B’ scheduled property in favour of the Complainants. But the Opposite Party Nos. 1 and 2 tried to convince the Complainants that until and unless they were getting completion certificate in respect of the building in question from the municipality concern they were not in a position to execute and register the deed of conveyance in favour of the Complainants who were requested by the Opposite Parties to wait for some time and it was assured that within a very short time they will get the completion certificate from the concerned municipality but in vein.

As per Complainant’s version the acts and activities of the Opposite Parties is deficient, negligent, unjust and unfair and the Opposite Parties jointly or severally are liable to compensate to the Complainant with adequate compensation as prayed for and the Complainants also entitled to get compensation.

Prayer of the Complainants:-

1. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to execute and register the proper deed of conveyance in respect of ‘B’ schedule flat with undivided proportionate land out of ‘a’ schedule property along with all facilities amenities as privileges as mentioned in the agreement for sale dated 17/05/2011 in favour of the complainants.
2. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to hand over the possession and completion certificate in respect of the flat in question as well as in respect of the building in question respectively to the Complainants.

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C.C. No. 102/2022

3. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to bear the enhanced cost of registration of the deed of sale comparing the cost as on the date of expiry of the stipulated period and the effective date of execution and registration of the deed of sale in respect of the flat in question.
4. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to pay an amount of Rs. 5,00,000/- as compensation on account of mental agony, pain anxiety and unnecessary harassment to the Complainants.
5. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to pay an amount of Rs. 50,000/- to the Complainants as litigation cost.
6. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 be punished with maximum punishment as prescribed in law.
7. The Opposite Party no. 1, 2 and 3 and 4 , 5 and 6 jointly and severally be directed to pay punitive damage in monetary terms to the Complainants.
8. Interim order / orders.
9. Any other relief to which the Complainants are entitled to get under law equity and natural justice.

SCHEDULE OF THE     “A”    PROPERTY

ALL THAT piece and percel of bastu  land measuring an area of 02 cottahs 10 chittaks 25 Square Feet, more or less together with building standing there upon comprised in C.S.. Dag No. 3391 (p) under plot no 170,Mouza-Ariadaha, Kamarhati, J.L. No. 1, R.S. No. 12 Touzi No.173, Holdind No.- 830, Municipal Premises No.170, Ramkrishna pally, P.S – Belghoria, Kolkata – 700057, within the local limit of Kamarhati Municipality, Ward No.11 District – 24 Parganas(N).

BUTTED AND BOUNDED BY

On the North : Municipal Road

On the South : House of Jivan Krishna Chakraborty

On the East   : House of Haripada Saha.

On the West  : House of Nisikanta Bala.

SCHEDULE OF THE FLAT

All that the said one self – contained and independent one residential ownership flat on Third Floor, North-East-South side, being Flat No. 3A consisting of 2(two) Bed Rooms, One Dining cum Drawing space, Kitchen, balcony, One Toilet includes super built up area for which saleable super built-Up area is 670 Sq.ft. be the same a little more or less delineated in the plan annexed here with red colour together with undivided proportionate share of land underneath the building being Municipal Premises No.170, Ramkrishna pally, P.S – Belghoria, Kolkata – 700057, within the local limit of Kamarhati Municipality, Ward No.11 District – 24 Parganas(N).

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C.C. No. 102/2022

Having no other alternative the Complainant filed this complain. Notices were served upon the O.Ps. The O.P Nos. 1 and 3 have filed W/V on 28/09/2022. In the W/V, O.P. stated that the instant complaint is not maintainable, it is harassing, motivated and frivolous. O.P. Nos.  4, 5, 6 also filed written version.

But at the time of argument neither the Opposite Parties nor their advocate are present. They are found absent without any steps.

          In written version O.P. Nos. 5 and 6 admitted some of the paragraphs of complaint. They also submits that O.P. Nos. 1, 2, and 3 violated the master plan without consent of O.P. Nos. 5 and 6. In W/V of O.P. No. 1and3 admitted the agreement for sale, admitted and confirmed the payment of entire consideration amount by the Complainant. O.P. No. 1 and 3 also submitted that O.P. No. 2 is not in a position to execute and register deed of conveyance. O.P. No. 4 submits in his W/V that O.P. No. 4 has no knowledge about transaction. Some of the paragraphs are admitted and rest are denied.

Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?
2. Whether the Complainants are entitled to get relief / reliefs in this case.

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points of considerations are taken up together for the sake of brevity and convenience.

On perusal of the materials along with the supporting affidavit related to documents available in the case record as well as hearing of argument made by the Ld. Advocate for the Complainants., it is revealed that the Complainants paid full consideration amount to the Opposite Party no 1to3 for purchasing a flat i.e. said suit property.

It is evident from the record that the Complainant paid full consideration amount i.e Rs.8,71,000/- to the O.P no. 1to3 for purchasing a 670 Sq. ft flat, no.3A. The O.P 1 to 3 also admitted in their W/V and they also supply money receipt against the payment .From which it is revealed that the status of the OP no.1to3 and other O.Ps are service provider and the Complainants are  customer as per Consumer Protection Act, 2019.

The Complainant resides  40 Thakur Das Chatterjee Road, Thakar Bagan, Kamarhati, P.S. – Belghoria, District – North 24 Parganas, Kolkata – 700058, at present residing at Flat No. 3A, 3^rd Floor, 170 Ramkrishna Pally, P.S. – Belghoria, P.O. – Ariadaha, District – North 24 Parganas, Kolkata – 700057and the claimed amount does not exceed the pecuniary limit of this Commission. Therefore, this Commission has ample jurisdiction to try this case.

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C.C. No. 102/2022

We have perused the petition of complaint as well as Examination-in-Chief and all documents  filed by the parties to this case. Wherefrom it is found that it is admitted fact that the Complainants paid full amount and the Complainant got possession of the subject flat as per their submission.

The discussed points bear positive results. As such we are of the view that the Complainant is entitled to get relief/reliefs and that will be reflected in the ordering portion. There is gross negligence in the part of the O.Ps.

The Complainants are the consumer as per provision of Consumer Protection Act, 2019 as they paid money for purchasing the said flat and the Opposite Parties are service provider. The Opposite Parties deliver the possession of the suit property but they did not execute and register deed of conveyance and did not handed over the Completion Certificate (C.C.) and Possession Letter, therefore, the attitude of Opposite Parties would be treated as deficiency in service on their part.

 The Complainant proved his case and entitled to get the relief prayed for.

Thus all the points are disposed of accordingly.

The case is properly stamped.

Hence,

It is Ordered

That the case being no.C.C.-102/2022 be and the same is allowed on contest against the O.Ps with cost of Rs.10,000/-.

The Complainants do get the decree as prayed for.

The O.Ps are directed to execute and register the deed of conveyance of said suit property either jointly and severally within 2 months from the date of the delivery of the judgment and also directed to hand over the Possession Certificate and Completion Certificate to the Complainant within 3 (three) months from the date of the delivery of judgment.

Failing  which the Complainant is at liberty to file execution case as per law.

Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Dictated & Corrected by

        Member

                                                                                                                   Member         President