West Bengal

South 24 Parganas

CC/610/2014

Smt. Kakoli Paik, Wife of Sri Samaresh Paik. - Complainant(s)

Versus

M/S. Apurba Construction A Proprietorship Construction Company. - Opp.Party(s)

30 Sep 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _610_ OF ___2014_

 

DATE OF FILING : 19.12.2014                  DATE OF PASSING JUDGEMENT: _30.9.2015___

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   Smt. Kakoli Paik, w/o Sri Samaresh Paik of Majherpara, Chingrighata, Canal South Road, P.S. Pragati Maindan, Kolkata – 105.

 

-VERSUS  -

 

O.P/O.Ps                            :  1.   M/s Apurba Construction of 53/H, Chaul Patti Road, P.S. Beliaghata, Kol-108.

                                              2.   Apurba Lal Banerjee, Prop. Of M/s Apurba Construction,s/o late Ranjit Banerjee of 53/H, Chaul Patti Road, P.S. Beliaghata, Kolkata – 108.

                                            3.   Ajit Banerjee

                                           4.    Ashish Banerjee

                                           5.   Shyamal Banerjee

                                           6.   Tarun Banerjee

                                           7.   Ranjit Banerjee

                                           All sons of Anil Bandopadhyay

                                           8.     Sm. Swapna Rakshit,w/o late Dilip Rakshit , all of 32, Chingrighata Villate, Purbayan, Canal South Road, P.S. Pragati Maidan, Kolkata – 105.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant case has been filed by the complainant under section  12 of the C.P Act, 1986 with allegation of deficiency in service against the O.Ps.

In a nutshell the case of the complainant is that a Development Agreement has been executed between the land owners ( O.P nos. 3 to 8) and the developer (O.Pnos. 1 and 2) on 28.09.2012 for construction of a three storied building upon the land at premises no. 32, Purbayan Chingrighata, Canal South Road, P.S. Pragati Maidan, Kolkata – 105 . Subsequently a supplementary agreement and General Power of Attorney were also executed between them on 28.09.2012.

            The complainant being desirous to purchase a flat on the said land, approached the O.p nos. 1 and 2 and on 28.2.2013 the purchaser  entered into an agreement for sale with the developer, O.P nos. 1 and 2   for purchasing 400 sq.ft flat on the third floor , Northern side of the said premises consisting of bed room, one bath-cum-privy and one kitchen at a total consideration of Rs.9.5 lacs ,out of which on the date of agreement complainant paid Rs.5 lacs to the developer . Though the developer, O.P nos. 1 and 2 assured the complainant for handing over possession of the flat within 30^th June, 2014 , the complainant came to know that no construction was made upon the said land . Several requests followed by lawyer’s notice darted 27.8.2014 demanding advance consideration of Rs.5 lacs yielded no result. Hence,the complainant has no other alternative but to file this case praying for completing the construction work and to hand over the concerned flat and for execution and registration of deed of conveyance in respect of the said flat , cost and compensation.

Inspite of service of summon O.P nos. 1 and 2 did not appear to contest the case. Hence, the case proceeded exparte against O.P nos. 1 and 2.

O.P nos. 3 to 8 appeared and filed written objection , but ultimately did not contest the case .

The O.P nos. 3 to 8 by filing written objection denied all the material allegations leveled against them . The positive case of the O.Ps is that this Court has no jurisdiction to proceed the instant case as any grievance of the purchaser/complainant against the Developer shall be adjudicated under the provision of the West Bengal Building ( Regulation of Promotion of Construction and Transfer by Promoters)Act, 1993. The O.Ps stated that they have no knowledge about the money transaction between the developer and the purchaser and they are not related with the said transaction . The O.Ps pray for rejection of the instant case.

After scrutinizing four corners of the case following points are in limelight :

1. Whether there is any deficiency in service on the part of the O.Ps under the purview of the C.P Act.
2. Whether the complainant is entitled to get relief as prayed for partly or fully.

Decision with reasons

             From the record it appears that on 23.4.2015 and 27.4.2015 the complainant was absent. On 8.6.2015 Ld. Advocate of the complainant prays for time . On 23.6.2015 complainant was absent on repeated calls. On 3.7.2015 , 22.7.2015 ,6.8.29015  and on 17.8.2015 complainant was not present.  On 10.9.2015 also complainant was not present, though hazira was filed. Thus the complainant and the O.ps also are absent  for the last 10 days. In this situation keeping in mind the essence of the C.P Act, 1986 i.e. speedy disposal and also keeping in mind section 14 of the C.P Act, 1986 we decided  to deliver the final order/Judgement on the basis of the materials on record.

            Before going into the merits of the case it is needed to be mentioned that the O.P nos. 1 and 2 even after valid services of notices upon them has not cared to appear before this Forum and all the documents brought before this Forum by the complainant are unchallenged piece of testimony and considered by this Forum as true.

            All the points are taken together for discussion, as they are interlinked.

            After perusing the complaint petition, written version of O.p nos. 3 to 8 and other documents brought before this Forum by the parties , it is crystal clear that the complainant being desirous to purchase a flat entered into an agreement for sale with the developer (O.P nos. 1 and 2) where O.P-3 to 8 are the land owners and paid Rs. 5 lacs towards the total consideration of the suit flat amounting to Rs.9.5 lacs. But even after repeated request of the complainant and even after legal notice upon them ,  O.ps neither handed over possession of the flat nor executed and registered the deed of conveyance in favour of the complainant.

            Considering the above fact and circumstances we are of the opinion that being developer O.P nos. 1 and 2 are duty bound to hand over the possession of the suit flat to the complainant within a moderate period of time and all the O.ps i.e. developer and the land owners are jointly and/or severally duty bound to execute and register the deed of conveyance in the name of the complainant .As the O.Ps have not done the same all the O.ps are liable for inaction and deficiency in rendering services to the complainant /consumer.

            Regarding contention of the Ld. Advocate for the O.P nos. 3 to 8 that, this Court has no jurisdiction to proceed with the instant case,  as any grievance of the purchaser/complainant against the Developer shall be adjudicated under the provision of the West Bengal Building ( Regulation of Promotion of Construction and Transfer by Promoters)Act, 1993, is not sustainable because as per section 3 of the C.P Act, 1986, it is opined by this Forum that with the strength of the section 3 of the C.P Act, 1986 this Forum is empowered to adjudicate the instant case.

            Therefore, we have no hesitation to hold that being land owners giving legal power to the developer to sell the suit flat, O.P nos. 3 to 8  should not shrug off their responsibility only on the aforesaid ground and also on the ground that they have no knowledge about the monetary transaction between the complainant and the developer.

            Therefore, we hold that all the O.ps are liable for deficiency in rendering services. It is also fact that due to the aforesaid deficiency of service the O.Ps mainly O.P nos. 1 and 2 , complainant has to suffer immense financial loss, tremendous mental agony and eligible to be aptly compensated by the developer (O.P nos. 1 and 2). O.P nos. 3 to 8 are duty bound to execute and register the deed of conveyance in favour of the complainant with respect to the suit flat. It is needed to be mentioned here that due to inaction and deficiency in service on the part of the O.Ps mainly developer complainant has to pay more stamp duty at the time of execution and registration of the deed of conveyance.

            Thus the complaint case succeeds.

            Hence,

                                                                        Ordered

That the case is disposed of on contest against the O.P nos. 3 to 8 without cost  and exparte against the O.P nos. 1 and 2 with cost of Rs.5000/- payable by O.P nos. 1 and 2.

All the O.Ps are directed jointly and/or severally to execute and register the deed of conveyance in favour of the complainant as per schedule mentioned in the agreement for sale within 45 days from this date.

The O.P nos. 1 and 2 are directed jointly and/or severally to hand over the possession of the flat in question  to the complainant as per agreement and to pay compensation to the tune of Rs.2 lacs and cost of Rs.5000/- within 45 days from this date and complainant is directed to pay the balance consideration amount to the O.P nos. 1 and 2 on the date of delivery of possession of the flat in question .

 

 

All the orders should be complied with within 45 days from this date, in default , each of the O.Ps shall pay  Rs.100/- per diem to the complainant till full and final compliance of the order  in its entirety after the completion of stipulated period.

Let a plain copy of this order be served upon the parties free of cost.

 

 Member                                                          Member                                               President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,                          

            Ordered

That the case is disposed of on contest against the O.P nos. 3 to 8 without cost  and exparte against the O.P nos. 1 and 2 with cost of Rs.5000/- payable by O.P nos. 1 and 2.

All the O.Ps are directed jointly and/or severally to execute and register the deed of conveyance in favour of the complainant as per schedule mentioned in the agreement for sale within 45 days from this date.

The O.P nos. 1 and 2 are directed jointly and/or severally to hand over the possession of the flat in question  to the complainant as per agreement and to pay compensation to the tune of Rs.2 lacs and cost of Rs.5000/- within 45 days from this date and complainant is directed to pay the balance consideration amount to the O.P nos. 1 and 2 on the date of delivery of possession of the flat in question .

 

 

All the orders should be complied with within 45 days from this date, in default , each of the O.Ps shall pay  Rs.100/- per diem to the complainant till full and final compliance of the order  in its entirety after the completion of stipulated period.

Let a plain copy of this order be served upon the parties free of cost.

 

 Member                                                          Member                                               President