DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./168/2021
Date of Filing Date of Admission Date of Disposal
26.08.2021 16.12.2021 10.05.2024
Complainant/s:- | IVA GHOSH, wife of Pranab Kumar Ghosh alias Mantu Ghosh, C/o Jaganath Sarkar presently residing at Flat S1, Second floor, Aurobindo Apartment, Shyamkhristan Bagan, Kolupukur Main Road, P.O and P.S. Chandannagore, Hooghly – 712136. Vs. |
Opposite Party/s:- | - M/s Goutam Ghosh, a sole proprietorship firm represented its sole proprietor having its registere office at Talbagan Main Road, PO Nonachandanpukur, Barrackpore, North 24 Parganas.
- Goutam Ghosh, son of Jagadsh Chandra Ghosh of Talbagan Main Road, PO Nonachandanpukur, Barrackpore, North 24 Parganas.
- Sova Rani Ghosh, wife of Late Sachindra Chandra Ghosh of 34/1, Justice Manmatha Mukherjee Road, PS Muchipara, Kolkata – 700009.
- Bidhan Chandra Ghosh, son of Late Brojendra Nath Ghosh of 13, Talbagan Road (West), PO Nonachandanpukur, Barrarkpore, P.S. Titagarh, Kolkata – 700122.
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P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainant above named filed this complaint against the aforesaid Opposite Parties praying for direction to the O.Ps to deliver possession in respect of subject flat after supplying completion certificate from the appropriate authority and to execute deed of conveyance alternatively O.P No. 1 and 2 be directed to refund the advance amount of Rs. 29,00,000/-, compensation amounting to Rs. 5,00,000/-, litigation cost amounting to Rs. 5/0,000/- and other reliefs.
He alleged that he O.P No. 1 is a proprietorship firm and O.P No. 2 is a proprietor of the said firm. O.P No. 3 and 4 are the land owners. They executed general power of attorney in favour of O.P No. 2. Complainant booked one flat and consideration price of the said flat is Rs. 30 lakh. Relating to said transaction one written agreement dated 26/03/2013 was executed in between Complainant and O.P No. 2. On that time Complainant paid Rs. 12,00,000/-. Subsequently Complainant paid Rs. 17,00,000/- on different occasions and by this way Complainant paid Rs. 29,00,000/- in favour of O.P No. 1 and 2.
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C.C. No./168/2021
During the payment of advance money Developer changed the flat allocation from Flat No. B to Flat No. A. O.P No. 2 failed to deliver the aforesaid flat in favour of the Complainant till 26/09/2014. Inspite of several requests O.P No. 2 failed to deliver the aforesaid flat in favour of the Complainant. Hence, the Complainant filed this case. O.P No. 1-3 after receipt of the notice not yet appeared before this Commission. Case is running ex-parte against O.P No. 1-3.
O.P No. 4 appeared in this record and filed W/V on 08/08/2022. He denied the entire allegation of the Complainant and further contended that he is unaware about the allegation of the Complainant mentioned in the petition of complaint. He does not know about the fact of deed of conveyance between Complainant and O.P No. 1. O.P No. 3 died on 13/07/2021. After the death of O.P No. 3 namely Sovarani Ghosh Development Power of Attorney have been automatically cancelled so the O.P No. 1 and 2 have no right to sell the property after the death of aforesaid Sovarani Ghosh. O.P No. 4 never indulged the Complainant to sing agreement for sale in respect of the subject flat. He prayed for dismissal of the case.
Decisions with Reasons:-
We have carefully gone through the petition of complaint filed by the Complainant, W/O filed by the O.P No. 4, copy documents filed by the Complainant, affidavit-in-chief filed by the Complainant and BNA filed by the Complainant.
On the date of hearing argument O.P No. 4 was not present. We have heard the argument from Ld. Advocate for the Complainant.
Complainant filed affidavit in chief. No questionnaire was filed on behalf of O.P No. 4.
On careful perusal of the petition of complaint and affidavit in chief, we find that Complainant alleged that he booked one flat with the consideration of Rs. 30 lakh and out of the said amount he already paid Rs. 20 lakh but O.P No. 1-4 inspite of several requests not yet handed over the said flat nor refunded the aforesaid money. Hence, the Complainant filed this case.
On perusal of copy of deed of agreement dated 26/03/2013 we find that Complainant and O.P No. 2 entered into an agreement for sale of a flat with the consideration of Rs. 30 lakh and out of the said amount sum of Rs. 12 lakh was paid in favour of the O.P No. 2 on the said date. On perusal of money receipt we find that Complainant paid further sum of Rs. 17 lakh, so it is clear before us that Complainant paid total sum of Rs. 29 lakh in favour of the O.P No. 2 but O.P No. 2 not yet delivered the said flat in favour of the Complainant nor took any initiative for registration of the deed.
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C.C. No./168/2021
We do not find sufficient reason to disbelieve the aforesaid evidence of the Complainant i.e. affidavit in chief. We also do not find sufficient reason to disbelieve the copy of documents filed by the Complainant at the time of filing of this case.
Placing reliance upon the aforesaid documents it is clear before us that the aforesaid act of the O.Ps are nothing but deficiency in service. We also find that O.P No. 3 has expired. Knowing the said fact Complainant did not take any steps for substitution. In this situation we think that O.P No. 2 should be asked to refund the aforesaid sum of Rs. 29 lakh in favour of the Complainant. Complainant could not produce the development agreement as well as development power of attorney. We also find that aforesaid deed of agreement dated 26/03/2013 has been executed by the Complainant and O.P No. 2 only. There is no signature of other O.P over the said document.
Complainant failed to produce any document in support of the fact that O.P No. 3 and 4 were involved in the said transaction. Even Complainant failed to produce copy of development agreement executed by O.P No. 3 and 4 in favour of the O.P No. 1 and 2. Complainant also failed to produce any development power of attorney executed by O.P No. 3 and 4 in favour of the O.P No. 1 and 2. In this situation we do not find any involvement of O.P No. 3 and 4 relating to the disputed transaction. Accordingly we find that no relief should be granted against O.P No. 3 and 4.
We also find that only the O.P No. 1 and 2 are involved in the aforesaid transaction. The aforesaid act of O.P No. 1 and 2 are nothing but deficiency service.
On perusal of record we find that Complainant is a consumer and O.Ps are the service provider.
Having regard to the aforesaid discussion it is clear before us that Complainant has able to established his grievance by sufficient document beyond reasonable doubt and he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence ,
It is
Ordered,
That the present case be and the same vide no. C.C./168/2021 is allowed ex-parte against O.P No.1 and 2, dismissed on contest against the O.P No. 4 and dismissed ex-parte against O.P No. 3 with cost of Rs. 5,000/- to be paid by O.P No. 1 and 2 in favour of the Complainant.
O.P No. 1 and 2 jointly or severally are directed to refund the sum of Rs. 29,00,000/- (twenty nine lakh) in favour of the Complainant along with interest @ 12% p.a. from the date of receipt of the said amount to till the date of refund positively within 45 days from this day failing which Complainant shall have liberty to put this order into execution.
O.P No. 1 and 2 jointly or severally are further directed to pay compensation amounting to Rs. 1,00,000/- (one lakh) in favour of the Complainant positively within 45 days from this date failing which Complainant shall have liberty to put this order into execution.
Case is dismissed against O.P No. 3 & 4.
Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
