DISTRICT CONSUMER DISPUTE REDRESSAL FORUM

NORTH 24 PARGANAS AT BARASAT.

                                                                                 Consumer Complaint No: 766 of 2016

Date of Filing                            Date of Admission                                   Date of Disposal

 23.12.2016                                        04.01.2017                                            25.04.2018

                                                            Complainants:

1.  SMT. SULEKHA RAUT

                                                            W/O  Sri.Pradip Kiran Raut

                                                            Aged about 52 Years.

                                                            Residing at – 1, Rishi Bankim Chandra Road,

                                                            Kolkata – 700028, Post Office and

Police Station: Dum Dum.

                                                            Dist. – North 24 Parganas, West Bengal.

2. SRI MADAN MOHAN BOSE

Son of Late Krishnalal Bose

Residing at – 1, Subhas Nagar Second Bye Lane,

Police Station – Dum Dum, Kolkata – 700065

Dist. – North 24 Parganas West Bengal.

                                                                                 Vs.

                                                                 Opposite Parties :-

                                                           1.   M/S. ROY BISWAS CONSTRUCTION

Promoter & Developer Office at 22, Vidya Sagar Road,

Police Station – Dum Dum, Kolkata – 700065.

2. SMT GITA ROY BISWAS

Proprietress : M/s. Roy Biswas Construction

W/o. Sri Nanda Dulal Roy Biswas

Residing at – 22, Vidya Sagar Road,

Police Station – Dum Dum, Kolkata – 700065,

District – North 24 Parganas, West Bengal.

      Present:Sri. Bankim Chandra Chattopadhyay...................  President

                              Sri. Siddhartha Ganguli..........................................  Member  

Typed & Corrected by me

Member                                                                                                                   Cont......P/2     

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Consumer Complaint No: 766 of 2016

Ld. Advocate for the complainant: Rajesh Biswas , Madhumita Saha & Ors

Ld. Advocate for the O.P: Ex-Parte.

Final Order & Judgment

  An application Under Section 12, read with Section 13 and 14 of the Consumer Protection Act, 1986 has been filed by the complainants alleging deficiency in service in respect of the flat purchased by them and prays for reliefs as stated in the petition.

  The gist facts of the case are that  the  Complainant No. 1 and 2 are the citizen of India, residing at 1, Rishi Bankim Chandra Road, Kolkata – 700085, respectively, and are the bona fide consumers as defined U/s. 2(1)(d)(ii) of the Consumer Protection Act, 1986 as amended up to date as both the Petitioner No. 1 and 2 hired the services of the Opposite Parties upon entering into an Agreement for Sale / Development Agreement dated 01.08.2003, in respect of a flat measuring about 640 Sq.Ft on the 4^th Floor at the South-East side of a G+4 multi-storied  building situated at 1, Subhash Nagar 2^nd Bye Lane, Police Station – Dum Dum, Kolkata – 700065,  Dist. – 24 Parganas (N), under Mouza – Dighla, J.L. No. 18, Khatian No. 368, Dag No. 559, under the South Dum Dum Municipality.

 It is stated by the Complainants that Opposite Party No: 1 is a Promoter / Developer company and the Opposite Party No: 2 is its owner/ proprietor and they after the sad demise of their mother namely Smt. Puspa Rani Bose, W/O Late Krishnalal Bose, along with three others jointly inherited the property / land measuring about 4 cottahs 6 chittaks more or less being Premises No. 1, Subhas Nagar Second Bye Lane, Police Station – Dum Dum, Kolkata – 700065, along with one storied brick built house, as per the Hindu Succession Act, 1956.

The Complainant No. 1 and 2 along with three others, who are the siblings of the present Complainants, were willing to develop their undivided joint property by making and erecting a multi-storied building after demolishing the existing one storied  brick built house standing in the said land being Premises No. 1, Subhas Nagar Second Bye Lane, Kolkata – 700065 through a Promoter / Developer and to that effect the Complainants and three others entered into a development agreement dated 28.06.1999 with the Opposite Party upon certain terms and conditions for the purpose of construction of a G+4 multi-storied building upon the schedule property and they also executed a General Power of Attorney in favour of the Opposite Party on 29.06.1999 to do all acts, deeds and things on behalf of the Complainant No. 1 and 2 along with three others, who are the land owners and to sell, transfer alienate the residential flats / unit of the developers allocation to the intending purchasers or customer at large.

It was also agreed by and between the parties in terms of the agreement dated 29.06.1999, that save and except the owners allocation the Opposite Party can sell out the remaining residential flats / units of the said constructed building against her total constructed costs and other costs for the purpose of said project from her portion called as developer to the intending purchasers or customer at large.

The Opposite Party, after obtaining the Sanction Plan from the South Dum Dum Municipality, started the construction / development work on the demised land property and later on the Complainant No. 1 & 2 with other three parties to the agreement dated 29.06.1999, who are the land owners, had taken over the possession of their share of allotted portions on the third and second floor respectively.

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Member                                                                                                                   Cont......P/3     

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Consumer Complaint No: 766 of 2016

It is further stated by the complainants that thereafter pursuant to the verbal discussion and upon the offer of the Opposite Party on 12.07.2003, the Complainants herein had further entered into an Agreement for Sale dated 01.08.2003 under certain terms and conditions to purchase a residential flat / unit measuring about 640 Sq.Ft. cover area, on the 4^th floor front at South East side of the said G+4 storied building situating at 1, Subhas Nagar and Bye Lane, Kolkata – 700065, Police Station – Dum Dum, District – North 24 Parganas, at a total consideration money of Rs.3,00,000/- (Rupees Three Lacs).

The Complainants herein had already paid Rs.1,00,000/- (Rupees One Lac) in favour of the Opposite Party as part payment of the total consideration money of Rs.3,00,000/- (Rupees Three Lacs) on 01.08.2003, and was agreed by and between the parties that the balance amount will be paid by instalments during the course of the development and construction of the said flat by the Opposite Party, within six months from the date of the Agreement for Sale dated 01.08.2003, and was also agreed between the parties that the Opposite Party / Developer shall handover the subject flat within October 2003 positively.

It is the allegation of the Complainants that the Opposite Party neither handed over the physical khas vacant possession of the flat measuring about 640 Sq.Ft. cover area flat on the 4^th floor front at South East Side of the said G+4 storied building of 1, Subhas Nagar Second Bye Lane, Police Station – Dum Dum, Kolkata – 700065, District – North 24 Parganas, which both the Complainants herein are entitled to get as per Agreement for Sale dated 01.08.2003 entered into by and between both the Complainants and the Opposite Party / Developer at a consideration money of Rs.3,00,000/- (Rupees three Lacs) only, nor take any positive actual steps towards the completion and development / constructional work of the subject flat.

On several times the Complainants went to the Opposite Party / Developer to place their requests to handover to them the physical khas vacant possession of the flat of 640 Sq.Ft  and to start the constructional work as per agreement dated 01.08.2003 on the 4^th floor front, but the Opposite Party / Developer did not pay any heed to the bona fide requests of the Complainants, with an intention just to harass the Complainants.

Due to such non-delivery of the Possession of the said flat the Complainants herein are facing lots of problems both mental and financial.  The sale agreement was executed in the year of 01.08.2003 but so many years had elapsed but the Opposite Party no did not show any intention to handover the possession of the said flat and to complete the development / constructional work of the same. The Complainants alleged gross negligence and misconduct on the part of the O.P. / Developer and also deficiency in rendering services towards the Complainants.

            The Complainants had also served a LEGAL NOTICE on the Opposite Party on 15.07.2016, requesting him to perform his part of promise in terms of Agreement of Sale dated 01.08.2003, by handing over the peaceful vacant khas possession of the flat measuring 640 Sq.Ft. in complete condition, within 15 days (fifteen days), from the date of the receipt of the Notice.  But the O.P. did not recognise the legality of the said Notice and did not profess to render any services at all in delivering nor completing the construction of the said flat msg. 640 Sq.Ft. in terms of the Agreement for Sale dated 01.08.2003 and as such also failed to furnish relevant papers incidental to ownership right viz. Possession letter, completion certificate (C.C.), etc., in terms of the Agreement for Sale dated 01.08.2003.

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Member                                                                                                                   Cont......P/4     

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Consumer Complaint No: 766 of 2016

Being dissatisfied with the services of the Ops, the Complainants filed this case and pray for the following reliefs:-

1. An order for directing the all opposite parties jointly of severely to execute and register the deed of conveyance in respect of the flat of the petitioners more fully and specifically described in schedule in favour of the petitioners.  Failing which the deed of conveyance may be registered through court / commission ; and

2. An order for directing the all opposite parties jointly or severely to handover the Physical khas vacant possession of the said flat in favour of both the Complainants completed in habitable condition in all respect ; and

3. An order for directing the all opposite parties jointly or severely to Pay Rs.2,00,000/- (Two Lacs) only as compensation for harassment, mental agony, and also for negligent act and conducting the deficiency in service ; and

4. An order for directing the all opposite parties jointly or severely to take the completion certificate with regard to said multi-storied building including all flats as per sanctioned plan from the local Municipality and to hand over the same to the petitioners ; and

5. An order for directing the all opposite parties jointly or severely to provide all sorts of common services and areas as the opposite parties have deliberately neglected and failed to perform their part of duties and performs in favour of the petitioners ; and

6. All costs of the proceeding ; and

7. All other relief / reliefs as entitled to get in law and equity.

Notices have been sent to the O.Ps and both the O.Ps received their respective notices. Despite receiving notices the O.Ps did not turn up and therefore the case has been proceeded ex-parte against the O.Ps.

During hearing the complainant:1  adduced evidence.

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Member                                                                                                                   Cont......P/5     

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Consumer Complaint No: 766 of 2016

From the complaint petition, evidence of the complainant and other materials on record the following points have been framed:

1. Are the complainants consumers?
2. Are the O.Ps deficient in providing service to the complainants?
3. Are the complainants entitled to get relief as prayed for?

Decision with Reasons

All the points have been taken together for the sake of brevity and avoidance of repetition of facts.

It is seen from the evidence and other materials on record that the Petitioner No. 1 and 2 hired the services of the Opposite Parties upon entering into an Agreement for Sale / Development Agreement dated 01.08.2003, in respect of a flat measuring about 640 Sq.Ft on the 4^th Floor at the South-East side of a G+4 multi-storied  building situated at 1, Subhash Nagar 2^nd Bye Lane, Police Station – Dum Dum, Kolkata – 700065,  Dist. – 24 Parganas (N), under Mouza – Dighla, J.L. No. 18, Khatian No. 368, Dag No. 559, under the South Dum Dum Municipality.

 It is further seen that  the Complainants after the sad demise of their mother namely Smt. Puspa Rani Bose, W/O Late Krishnalal Bose, along with three others jointly inherited the property / land measuring about 4 cottahs 6 chittaks more or less being Premises No. 1, Subhas Nagar Second Bye Lane, Police Station – Dum Dum, Kolkata – 700065, along with one storied brick built house, as per the Hindu Succession Act, 1956.

The Complainant No. 1 and 2 along with three others, who are the siblings of the present Complainants, were willing to develop their undivided joint property by making and erecting a multi-storied building after demolishing the existing one storied  brick built house standing in the said land being Premises No. 1, Subhas Nagar Second Bye Lane, Kolkata – 700065 through a Promoter / Developer and to that effect the Complainants and three others entered into a development agreement dated 28.06.1999 with the Opposite Party upon certain terms and conditions for the purpose of construction of a G+4 multi-storied building upon the schedule property and they also executed a General Power of Attorney in favour of the Opposite Party on 29.06.1999 to do all acts, deeds and things on behalf of the Complainant No. 1 and 2 along with three others, who are the land owners and to sell, transfer alienate the residential flats / unit of the developers allocation to the intending purchasers or customer at large.

The Opposite Party, after obtaining the Sanction Plan from the South Dum Dum Municipality, started the construction / development work on the demised land property and later on the Complainant No. 1 & 2 with other three parties to the agreement dated 29.06.1999, who are the land owners, had taken over the possession of their share of allotted portions on the third and second floor respectively.

It is further evident from the materials on record that the complainants thereafter pursuant to the verbal discussion and upon the offer of the Opposite Party on 12.07.2003, the Complainants had further entered into an Agreement for Sale dated 01.08.2003 under certain terms and conditions to purchase a residential flat / unit measuring about 640 Sq.Ft. cover area, on the 4^th floor front at South East side of the said G+4 storied building situating at 1, Subhas Nagar and Bye Lane, Kolkata – 700065, Police Station – Dum Dum, District – North 24 Parganas, at a total consideration money of Rs.3,00,000/- (Rupees Three Lacs) and The Complainants had already paid Rs.1,00,000/- (Rupees One Lac) in favour of the Opposite Party as part payment of the total consideration money of Rs.3,00,000/- (Rupees Three Lacs) on 01.08.2003, and was agreed by and between the

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Member                                                                                                                   Cont......P/6     

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Consumer Complaint No: 766 of 2016

parties that the balance amount will be paid by instalments during the course of the development and construction of the said flat by the Opposite Party, within six months from the date of the Agreement for Sale dated 01.08.2003, and was also agreed between the parties that the Opposite Party / Developer shall handover the subject flat within October 2003 positively.

It is the allegation of the Complainants that the Opposite Party neither handed over the physical khas vacant possession of the flat measuring about 640 Sq.Ft. cover area flat on the 4^th floor front at South East Side of the said G+4 storied building of 1, Subhas Nagar Second Bye Lane, Police Station – Dum Dum, Kolkata – 700065, District – North 24 Parganas, which both the Complainants are entitled to get as per Agreement for Sale dated 01.08.2003 entered into by and between both the Complainants and the Opposite Party / Developer at a consideration money of Rs.3,00,000/- (Rupees three Lacs) only, nor take any positive actual steps towards the completion and development / constructional work of the subject flat.

It is further seen from the materials on record that on several times the Complainants went to the Opposite Party / Developer to place their requests to handover to them the physical khas vacant possession of the flat of 640 Sq.Ft  and to start the constructional work as per agreement dated 01.08.2003 on the 4^th floor front, but the Opposite Party / Developer did not pay any heed to the bona fide requests of the Complainants, with an intention just to harass the Complainants and due to such non-delivery of the Possession of the said flat the Complainants herein are facing lots of problems both mental and financial.  The sale agreement was executed in the year of 01.08.2003 but so many years had elapsed but the Opposite Party no did not show any intention to handover the possession of the said flat and to complete the development / constructional work of the same. The Complainants alleged gross negligence and misconduct on the part of the O.P. / Developer and also deficiency in rendering services towards the Complainants.

            The Complainants had also served a LEGAL NOTICE on the Opposite Party on 15.07.2016, requesting him to perform his part of promise in terms of Agreement of Sale dated 01.08.2003,  but the O.Ps. did not recognise the legality of the said Notice and did not profess to render any services at all in delivering nor completing the construction of the said flat msg. 640 Sq.Ft. in terms of the Agreement for Sale dated 01.08.2003

As the O.Ps did not turn up despite receipt of notices we had no option but to accept the evidence of the complainant. Had the O.Ps appeared and contested the case the reason for non delivery of the flat and the deficiency alleged would have been cleared.

The unchallenged testimony of the complainant proves the case.

We hold the view that the complainants are consumers as per the definition of the consumer as defined U/S 2(1)(d) of the C.P Act, 1986 and the O.Ps were deficient in providing service and the complainants are entitled to get relief.

Regarding quantum of compensation and litigation cost we hold the view that an amount of Rs.20, 000/ as compensation and Rs.10, 000/ as litigation cost will commensurate with the mental pain, sufferings, harassment of the complainants.

Therefore, all the points have been discussed and decided in favour of the complainants.

Hence

It is ordered that the instant Consumer Complaint, being No: CC- 766 of 2016 is allowed Ex-parte with cost.

Both the OPs are jointly and severally directed to execute and register the deed of conveyance in respect of the flat of the complainants as per the agreement dated 01.08.2003 in favour of the complainants within 45 days from the date of this Order, failing which the deed of conveyance may be registered through the Forum by appointing a commissioner.

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Member                                                                                                                   Cont......P/7     

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Consumer Complaint No: 766 of 2016

Both the O.Ps are jointly and severally directed to handover the Physical khas vacant possession of the said flat in favour of both the Complainants  in complete and habitable condition in all respect within 45 days from the date of this order.

Both the O.Ps are jointly and severally directed to handover the completion certificate with regard to said multi-storied building including all flats as per sanctioned plan from the local Municipality and to hand over the same to the complainants within 45 days from the date of this order.

Both the O.Ps are jointly and severally directed to provide all sorts of common services and areas in respect of the said flat to the complainants within 45 days from the date of this order.

Both the O.Ps are jointly and severally directed to pay Rs.20,000/- only as compensation and further Rs.10,000/ as litigation cost to the complainants within 45 days from the date of this order.

In default of any portion of the order the complainants are at liberty to put the same under execution for enforcement of the order as per provisions of the C.P Act, 1986.

Let free copies be given to the parties concerned as per provisions of the C.P Rules & Regulations.

          Member                                                                                                President

Typed & Corrected by me

Member