Date of filing : 04.10.2018
Judgment : Dt.26.03.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of The C.P.Act, 1986 by Sri Koushik Deb alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) (1) M/s Nirman Enterprise, (2) Smt. Gopa Das, (3) Sri Rakesh Majumder, (4) Sri Satya Narayan Mukhopadhyay and (5) Sri Sujit Narayan Chowdhury.
Facts in brief, are that the OP No.5 being the absolute owner of a piece of land on the strength of a Deed of Gift executed in favour of him by the Governor of West Bengal entered into a Development Agreement with OP Nos.1 to 4 on 8.3.2002 for developing the said piece of land lying and situated at Mouza – Khanpur, J.L.No.46 in E.P. 710A, S.P.NO.380/1 in C.S.Plot No.288(P), P.S.-Netaji Nagar (Previously Jadavpur thereafter Patuli), Dist.-South 24 Parganas by constructing a building and executed a general Power of Attorney dt.1.4.2002 in favour of the OP Nos.1 to 4 and the OP Nos.1 to 4 constructed the building on the said piece of land being postal premises No1/66A, Netaji Nagar, P.S.-Netaji Nagar, Kolkata-700 092.
The Complainant has stated that he entered into a verbal agreement with OP Nos.1 to 5 in respect of a road facing flat on the 2nd floor of the said building at a consideration of Rs.6,00,000/- and paid entire consideration amount on different dates and possession of the said flat had been delivered to him by the OPs and since then the Complainant has been enjoying the said flat. It is further stated by the Complainant that while enjoying the possession of the said flat the Complainant on several times requested the OPs to execute and register the Deed of Conveyance in favour of him but the OP paid no heed to that request and, thereafter the complainant sent legal notice through his Ld. Advocate but that too yielded no fruitful result and, therefore, the complainant by filing the instant consumer complaint prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the Complainant, to pay a sum of Rs.5,00,000/- towards compensation to pay Rs.10,000/-towards cost of litigation, to handover possession letter and for other reliefs.
The Complainant annexed copy of Gift Deed dt.3.10.1989 Agreement dt.8.3.2002, General Power of Attorney dt.1.4.2002, Money Receipts dt.19.2.2003, 29.11.2003, 15.4.2004, Electricity Bill, documents of Consumer ID under H.P.Gas.
Notices were served but the OP did not turn up so the case proceeded ex-parte against OPs vide order No.6 dt.27.12.2018.
The Complainant adduced evidence also filed BNA.
Decision with reasons
The Complainant claimed to have entered into verbal agreement in respect of a flat to be constructed by OP Nos.1 to 4 at premises No.1/66A, Netaji Nagar, P.S.-Netaji Nagar and paid entire consideration amount of Rs.6,00,000/-.
On perusal of documents, on record, it appears that Sri Sujit Narayan Chowdhury (OP No.5 herein) became absolute owner of a piece of land, lying and situated at EP No.710 (SP 380/1), C.S.Plot No.288(P) Mouza – Khanpur, J. L. No.46, P.S.-Jadavpur, Dist.-South 24 Pargana, by virtue of a Gift Deed dt.3.10.1989 executed in favour of the OP No.5 by the Governor of the State of West Bengal and said OP No.5 entered into a Development agreement with OP Nos.1 to 4 for developing the said plot of land and executed a Power of Attorney in favour of the OP Nos.1 to 4.
It further appears from the Agreement dt.8.3.2002 that the Developers were entitled to get entire constructed area except one flat on the first floor measuring 737 sq.ft. built up area and one shop on the ground floor measuring 220 sq.ft. and it further appears from General Power of Attorney dt.1.4.2002 that the Developers were empowered to enter into Agreement for Sale with any person or firm in respect of their allocated portion.
On perusal of money receipts dt.19.2.2003, 29.11.2003 & 15.4.2004, it appears that the Complainant paid an amount of (Rs.2,37,570/- + 2,47,000/- + 15,430/-) Rs.5,00,000/- to the developer. However, it appears from said money receipt that the said amount was paid in respect of a 2nd floor flat situated at 1/66A Netaji Nagar, Kolkata – 700 092.
The Complainant has claimed that he has paid entire consideration of Rs.6,00,000/- but documents on record suggests that an amount of Rs.5,00,000/- has only been paid by the Complainant.
No document has also been brought before us wherefrom it would have been evident that agreed consideration amount was only Rs.6,00,000/- and the Complainant paid the amount as per payment schedule.
The Complainant claimed to have sent legal notice but no copy of such notice has been filed to substantiate such claim.
The Complainant has stated in his petition of complaint that the OP delivered possession but did not mention the date when he received the possession. It is very surprising that without having possession letter and without paying entire consideration amount the Complainant has been enjoying possession and has not filed a scrap of paper to show that he took initiative to get his flat registered and after about 14 years from the date of last payment suddenly he has initiated this case praying for certain reliefs. It is admitted by the Complainant that he has received possession. It is evident that entire consideration has not been paid by the Complainant then how can it be said that the OP is deficient in providing service.
Moreover, the Complainant has stated that the agreement was verbal in nature but in absence of any written agreement, it is not possible to ascertain the deviation from the promise which is an element to ascertain deficiency in service since the allegation of the complainant is based on deficiency in service and as such this complaint is not maintainable under C.P.Act.
In view of the discussion made hereinabove, we are not inclined to allow the consumer complaint.
In the result, the instant Complainant does not succeed.
Hence
ordered
That CC/583/2018 is dismissed ex-parte.
