The case of the complainant is that OP No. 1(a) , 1(b) and 1(c) are the successors of proprietorship firm namely Sayak Construction & OP No. 2,3, 4, & 5 being the owners of the schedule mentioned property. One Biplab Sengupta was the sole proprietor of Sayak Construction and he got power of Attorney from original land owners for raising multi storied building namely, Parona Apartment over the A schedule property. This complainant being lured at the lucrative advertisement of OP desired to purchase one shop room for earning her livelihood and paid Rs. 20,000/- through cheque and entered into an agreement for sale of the B Schedule shop measuring 100 Sq ft. at a consideration value amounting to Rs. 182,000/-. Subsequently, the complainant paid the rest consideration value of Rs. 162,000/- by several installments in favour of Sayak Construction and receipts in favour of her. While taking final balance amount on 23.09.2008 the predecessor of the OP has given possession of the schedule mentioned shop room in favour of the complainant and in the final receipt he remarked that full and final settlement. That Biplab Sengupta the sole proprietor of Sayak Construction was the predecessor of OP NO. 1(a) to 1(c) and Panchanan Manna the owner of A schedule property was the predecessor of OP No. 2 to 5 both died immediately after completion of the multi storied building over the A schedule property. That Panchanan Manna being the owner of the land made an executed registered power of Attorney in favour of Sayak Construction before the ADSR, Serampore in the year 2007 and appointed Sayak Construction as his constituted power of Attorney for selling out flats and shop rooms situated over the A schedule property. Complainant already got possession of the B schedule shop room and verbally requested all the Opposite Parties to take necessary steps for execution and registration of sale deed in her favour. But OP assured the complainant and advised not to worry. That on 15.11.2016 the complainant met with OP and requested them to execute and register the B schedule property in favour of her. But the OP showed reluctance towards execution and registration. Inspite of paying entire amount the complainant is in dilemma whether the shop room would be executed in her favour and at the act of OP she suffered mental agony, anxiety and harassment. Then the complainant sent a legal notice on 01.12.2016 through her advocate but the OP did not pay heed to the same. From the conduct of the OP it is crystal clear that they have made illegal trade practice and caused deficiency in service towards this complainant inspite of receiving the consideration money. The complainant is ready to execute and register the B schedule shop room from the OP but they are killing time on lame excuse. The act and attitude of the Opposite Party tantamount to gross violence/negligence to perform their duties. So, this complainant being a bona fide consumer is entitled to get relief a sum of Rs. 50,000/- towards compensation from the OPs for causing bodily pain, mental agony and harassment and a direction upon the OP to execute and register sale deed in favour of the complainant and restraining the OP to sell the B schedule property to any third party till disposal of the case and other relief/reliefs as this Forum deems fit and proper.
OP appeared on 11.05.2017 and prayed for filing W/V but failed to file written version. Since then vide order dated 11.09.2017 this Forum constrained to run the proceeding ex parte against the OP.
Complainant files evidence on affidavit in which she stated that inspite of receiving consideration money amounting to Rs. 162,000/- out of Rs. 182,000/- the OP willfully avoiding the execution and registration of the B schedule property. Although she is in possession over the scheduled mention property since 2008. The willful avoidance on the part of the OP tantamount to gross violence/negligence for which the complainant is entitled to get relief as prayed in the prayer portion of the complainant. She supports all the averments of the complaint petition. Complainant filed Written Argument which is taken into consideration for passing final order.
Complainant filed money receipts showing payment made by the complainant in favour of the OPs Sayak Construction and Electric bill in the name of the complainant issued by the CBSC Ltd.
Issues /Points for consideration
- Whether the complainant is a Consumer under the Consumer Protection Act, 1986?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief as prayed for?
Decision with reasons:
Issue No.1
From the materials on record it is transparent that the Complainant is a “Consumer” of the opposite party as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being a customer of the promoter and land owner (OP herein) paid consideration money for getting a shop room and executed an agreement for sale. So the OP being the promoter and land owner is responsible to provide service to this complainant.
Issue No.2
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
Issue No.3
Complainant being a purchaser of shop room measuring 100 Sq ft. more or less approached the OP No. 1 being represented by Biplab Sengupta and paid consideration money amounting to Rs. 162,000/- out of Rs. 182,000/- step by step, receipt of which the complainant produced as evidence. The complainant paid Rs. 20,000/- as booking money on 22.07.2008 by an A/c payee cheque, Rs. 10,000/- on 23.07.2008, Rs. 70000/- on 08.09.2008, Rs. 30000/- on 31.8.2008 and finally the OP received a sum of Rs. 52,000/- in cash on 23.09.2008 as full and final payment. The Xerox copy of the receipt of OP filed by the complainant to substantiate her claim. The complainant also filed an electric bill in her name in the address, ground floor 90, Nilmoni Som Street, Bhadrakali, Hooghly having customer ID 63000680758 for the month of July 2016 to establish that she is in possession of the shop room since 2008. It appears from the advocate letter dated 01.12.2016 that the complainant requested the OPs for taking proper steps for registration of the shop room of the B schedule property within 15 days since receiving the advocate letter. Inspite of receiving such letter as well as several requests of the complainant has been turned down by the OP on lame excuses. As a result the complainant suffered from mental pain and agony as she paid the entire amount of consideration money to the OP but the OP willfully avoided the execution and registration of the said shop room. The OP cannot escape from his liability to register and execute the sale deed in favour of this complainant as OP received the entire consideration money from this complainant. Willful avoidance and negligence on the part of the OP tantamount to deficiency of service for which this complainant suffered a lot since the date of final payment till date.
From the above discussion this Forum may come into this conclusion that complainant paid the entire consideration money and she is in possession over the B schedule property since 2008. But the OP is deficient to provide service as a result the said shop room is not executed and registered in favour of this complainant. Mere direction upon the OP No. 1(a), 1(b) and 1(c), OP No. 2, 3, 4 & 5 to register the said shop room in favour of this complainant within the time framed is required.
The version of the complainant is unchallenged as the OP failed to file written version and evidence on affidavit.
Issue No.4
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove her case and the Opposite Party is liable to comply/pay the ordered amount.
ORDER
Hence, it is ordered that the compliant case No.212/2016 be and the same is allowed ex parte against the Opposite party with a litigation cost amounting to Rs.5,000/ to be paid to this complainant.
The Opposite Party No.1(a), 1(b) and 1(c), Opposite Party No. 2, 3, 4 & 5 are directed to execute and register the sale deed of the B schedule property i.e. a shop room measuring 100 Sqft. more or less in favour of this complainant within 45 days from the date of this order.
The Opposite Party is directed to pay compensation amounting to Rs.10,000/- for mental pain, agony and harassment to the complainant.
All the payments are to be made within 45 days from the date of the order.
At the event of failure to comply with the order the Opposite Party No. 1(a), 1(b), 1(c), 2 to 5 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
