Date of Filing :   21  July, 2020

Date of Judgement :   15 December, 2022

Mr.  Dhiraj Kumar Dey, Hon’ble Member

            This case arises when the complainant, Sri Pradip Sarkar, filed a complaint under Section 35 of the Consumer Protection Act, 2019, herein after called the said Act, against 1). M/s. M. B. Enterprise, 2) Sri Mantu Ray,  3)  Balajan Sk. and  4) Smt. Ava Sarkar, herein after called the Opposite Parties or O. Ps., alleging deficiency in service to be rendered to him from the Opposite Parties.

            Succinctly put, the complainant has a repairing shop for his livelihood named and styled as “Pritam Repairing Shop” in the premises no. 99, Purba Fulbagan and Fulbagan Road, also known as 64, Fulbagan Road,  P. O. – Baghajatin, P. S. – Patuli, Kolkata – 700 086.  When the land owner, herein the O P No. 4 made a Development Agreement with the Developer, the O P Nos. 1 to 3 herein above, and the developer agreed to develop the premises, complainant made an Agreement for Sale on 17/03/2017 with the O. P. Nos. 1 to 3 and paid Rs. 1,000/-  to them with an intention to purchase a shop room being Shop Room No. 1 measuring about 96 sq. ft. super build up area with proper cement plaster with paris and shutter finish and also electrical wiring and electric meter to be installed at the cost of the Developer/O. P. 1 Company represented by its partners being the O. P. 2 & 3 .  This shop room is a part of the proposed building to be developed by the Developer on a land measuring about 1 cottah 2 chittacks of the owner, here the O. P. 4, within the K M C Ward No. 101, premises no. 99, Purba Fulbagan and Fulbagan Road, also known as 64, Fulbagan Road,  P. O. – Baghajatin, P. S. – Patuli, Kolkata – 700 086.  According to the terms and conditions of the Agreement the sale price of this shop was agreed at Rs. 1,000/- since the complainant already possessed a shop room for running his business under name and style “Pritam Repairing Shop” at the said premises prior to the construction of the new building.  He paid the entire amount of Rs. 1,000/- during execution of the Agreement on 17/03/2017.  According to this agreement the Developer was bound to complete the entire construction along with the subject shop of the purchaser/complainant within 4 months from the date of execution of the Agreement, i.e. within 17/07/2017.  But the O. P. Nos. 1 to 3 failed to deliver the said shop within the stipulated time.  Complainant made several contacts with the O. Ps. about possession and registration of the said shop and every time he could not gather any assertive information in this regard.  He became disappointed and frustrated regarding the service rendered by the O. P. Nos. 1 to 3 and sent a letter to the O. P. Nos. 1 to 4 through his Ld. Advocate on 20.11.2019 requesting them to hand over possession of the said shop and execution of the Deed of Conveyance but none of them paid any head to his request. Finding no other way he filed this complaint before This Commission praying for peaceful possession and execution of Deed of Conveyance along with Completion Certificate in respect of the subject shop room, a compensation of Rs. 1,00,000/- for harassment and mental agony, together with a sum of Rs. 20,000/- as litigation cost and others as this Commission thinks fit.

            The complainant submitted copies of the Gift Deed executed between the Government of West Bengal and O. P. 4, copy of Development Agreement executed between the O. P. 4 and O. P. Nos. 1 to 3, registered General Power of Attorney executed between O. P. 4 and O. P. Nos. 1 to 3, registered Agreement for Sale executed between the Complainant and O. P. Nos.  2 & 3, copy of Trade License and a copy of letter sent on 20/11/2019 to all the O. Ps. by his Ld. Advocate as annexure to the complaint petition.

            After receiving the complaint notices were sent to all the O. Ps. and it was found that O. P. No. 4 received the notice whereas track report in respect of O. P. Nos. 1 to 3 show “Item returned Addressee cannot be located”.  But O. P. No. 4 did not turn up to contest the complaint.  Several attempts were taken to send notice to O. P. Nos. 1 to 3 and each time such attempts failed and ultimately notices were served to all the O. Ps. by way of paper publication in a daily news paper.  But none of the O. Ps. came attended this Commission to contest this case.  Ultimately the case proceeded ex parte.  Thereafter complainant filed Affidavit-In-Chief and Brief Notes of Argument and finally this Commission comes to the point of issuing Final Order.

            We are in the juncture to decide whether the complaint is to be dealt under the provision of the Consumer Protection Act, 2019 and whether the complainant is entitled to get relief as prayed for.  Let us take these points to come to a decision.  

            Original copy of the Agreement for Sale and other documents are taken into consideration for reaching in the decision.

Decision with reasons

1.         It is evident from the Agreement for Sale, made between O. P. 1 Company, represented by the partners, namely the O. P. 2 & 3, as Developer and the Complainant as Purchaser on 17/03/2017, that Complainant/Purchaser paid Rs. 1,000/- as full and final consideration to the Developer for purchasing the subject shop.  It is specifically stated that, in page 6, point 4 of the Agreement that ‘the Developer shall complete the entire construction along with the shop and make the Shop No. 1 of the PURCHASER ready for possession and shall give the physical possession of the Shop on or within 4 (Four) months…’.  So it is evident that the complainant/purchaser is a consumer to the O P Company as defined in the Act and the complainant is to get possession of the subject Shop within 17/07/2017.  It is also stated in the said Agreement that the Developer and the Vendor, i.e. O P Nos. 1 to 4, would arrange for registration of the Shop at the Purchaser’s cost. In Page 7 in Para 6 of the said Agreement it is also stated that ‘the DEVELOPER at its cost shall arrange separate electric meter for the PURCHASER at its cost from the relative authorities…. ‘.   In Page 8 in Para 12 it is stated that: ‘That if the DEVELOPER fails to hand over the Shop within the stipulated period, the PURCHASER shall have right either to bring suit against the DEVELOPER on Specific Performance of Contract Act or claim damages and compensation for the same and the DEVELOPER has agreed to this proposal’.  These statements thus assures some specific performance which the Developer is bound to perform but they failed to comply with these assurances and the complainant has not got possession of the said Shop till he files this complaint.

2.         Now, let us consider the nature of the land where the complainant would get possession of his shop and how the shop in the proposed building was to be constructed.  From the copy of the Gift Deed we see that one Smt.  Ava Sarkar, O. P. No. 4 herein above, got possession of a land measuring about 3 cottah 10.5 chittaks in Mouza Bademasur, J. L. No. 31, E/P No. 182, S/P No. 1032, comprising in C. S. Dag No. 267(P), 253(P) and 504(P), within K. M. C. Ward No. 101, being premises No. 99, Fulbagan Road, corresponding to mailing address 64, Purba Fulbagan and Fulbagan Road, P. O. Baghajatin, P. S. Jadavpur, now Patuli, Dist. 24 Paraganas South by way of Gift Deed awarded by Govt. of West Bengal, on 15/09/1990.  She then intended to develop her property and entered into a Development Agreement with O. P. Nos. 1 to 3 and also executed a Registered Power of Attorney on 20/03/2015.  According to the Development Agreement the O P Nos. 1 to 3 are to build a three storied building in 1 cottah 2 chittaks land of the above stated premises. It is specifically stated in the Development Agreement, written in Bengali, in Page 5, that the O. P. Nos. 1 to 3 will prepare a Building Plane at their own cost and the O. P. 4, the land owner, may sanction this Plan.  In the registered Agreement for Sale made on 17/03/2017, in page 4 it is stated that: ‘AND WHEREAS and now the DEVELOPER is developing the entire premises and erecting the straight three storied building thereon as per building plan as well as specification as mentioned in the unregistered Development Agreement dated 18/03/2015.’  In the annexed documents we cannot find any words like ‘Building Plan sanctioned by the competent authority’.  So, question of Completion Certificate does not arise.  As the complainant has never raised any question in this matter from the date of signing the Agreement for Sale till he files this complaint, even in the letter dated sent through his Ld. Advocate to the Opposite Parties this issue has not been raised, we are not considering the claim of the complainant regarding Completion Certificate, since we cannot go beyond the Agreement.

3.         Be it mentioned here, as we find from the Cause Title of the Complaint, that the Complainant, Sri Pradip Sarkar, is the son of Late Lakshmi Narayan Sarkar whereas the O. P. 4, Smt. Ava Sarkar, is the wife of Late Lakshmi Narayan Sarkar and their residing address are the same as 64, Fulbagan Road, P. O.  Baghajatin, P. S. Patuli, Kolkata – 700 086.  So, there seems to be a relationship between the complainant and the O. P. No. 4, which was not disclosed.

        Moreover, we find in the Development Agreement, General Power of Attorney and also in the Agreement Sale that the Address of O. P. No. 1 and also one of the addresses of O. P. Nos. 2 & 3, is written as : 7 Lane, Vidyasagar Park, Pirpukur Road, P. S. Bansdroni, Kolkata – 700 070.  But in the Cause Title of the complaint this has been written as : 7, Lane, Vidyasagar Park, Pirpukur Road, P. S. Bansdroni, Kolkata – 700 070. 

            So, considering these above stated facts and taking into consideration the statements made in the complaint, the Affidavit-In-Chief, the Development Agreement, General Power of Attorney and the Agreement for Sale I have no hesitation to say that there is a gross deficiency in rendering service as proposed in the Agreement for Sale dated 17/03/2017 caused by the Opposite Parties for not handing over possession of the Shop in question and not executing and not registering the Deed of Conveyance in favour of the complainant.  Consequently the complainant is entitled to get relief as prayed for, except his demand of Completion Certificate and compensation, and a litigation cost.

            Hence,

                        it is

ORDERED

That the Complaint Case No. CC/141/2020 is allowed ex parte against O. P. Nos. 1 to 4.

The Opposite parties are directed to hand over physical possession of the Shop being Shop No. 1 and execute and register the Deed of Conveyance in favour of the Complainant at the Complainant’s cost within 60 days from the date of this order. 

The O. Ps. are also directed to pay the complainant jointly and severely a sum of Rs. 10,000/- as litigation cost within the aforementioned time.