Smt. Sangita Paul, Member
This is a case filed by Sri. Ananya Sarkar Bar, W/o. Anirban Bar and Anirban Bar, S/o. Ajoy Bar, both of them are residing at D/35, Baghajatin, P.O. –
Jadavpur, P.S.-Jadavpur, Kolkata-700 032 against M/S. Shree Ramkrishna Enterprises, Sri Madhusudan Singha, Sri Chanchal Ganguly, Smt. Seema Gupta, Smt. Sharmistha Moitra, Sri Saikat Mukherjee, Smt. Reba Mukherjee, Shri Malay Mukherjee and Smt. Krishna Sanyal with a prayer to execute and register the deed of conveyance in favour of the complainant in compliance with the contents of agreement for sale dated 27.10.2017 failing which the Deed of conveyance be registered through the machinery of the Commission, in accordance with the law, to impose direction upon the OPs to complete the work of construction, as specifically stated in the agreement dated 27.10.2017 without further delay and to hand over the keys of the flat and to deliver vacant possession along with possession certificate, to provide completion certificate to the complainant to pass an order directing the OPs to pay a sum of Rs.5,00,000/-, only towards compensation for harassment, mental agony, and to pay Rs.50,000/- as litigation cost.
OP No.1 is M/S Shree Ramkrishna Enterprises. It is a partnership firm. The address is Boral Sarani, P.O. – Boral, P.S. – Sonarpur, Kolkata-700 154, District – South 24 Parganas. The administrative office is at 472, Garia Main Road, Annapurna Hall, 1st Floor, Kolkata-700 084.
OP No.2 is Shri Madhusudan Singha, S/o. Late Profulla Kumar Singha. The address is Boral Sarani, P.O. – Boral, P.S. – Sonarpur, Kolkata-700 154, Dist. – South 24 Parganas.
OP No.3 is Shri Chanchal Ganguly, S/o. Late Suhrid Ganguly. The address is 92, Kanungo Park, Ahana Apartment, flat No.8, Garia, Kolkata-700 084.
OP No.4 is Smt. Seema Gupta, W/o. Late Onkar Nath Gupta. The address is Boral Sarani, P.O. – Boral, P.S. – Sonarpur, Kolkata-700 154, Dist. – South 24 Parganas.
OP No.5 is Smt. Sharmistha Moitra, W/o. Anirban Moitra, and D/o. Late Amal Kumar Mukhopadhyay. The address is Sarat Pally, Minar Rathbari, Sabji Market, P.O. – Malda Police Station, -English Bazar, Dist. – Malda, Pin – 732 101.
OP No.6 Is Sri Saikat Mukherjee. He is the son of Late Arun Mukherjee.
OP No.7 is Smt. Reba Mukherjee. She is the wife of Late Arun Mukherjee.
Ops 6 and 7 are the residents of Flat No. C-2, 2nd Floor, City King Complex, Dakshin Para, Natun Hut, Near Boral Student’s Club, P.O. – Boral, P.S. – Sonarpur, Kolkata-700 154, Dist. – South 24 Parganas.
OP No.8 is Shri Malay Mukherjee. He is the son of Late Sudhamay Mukherjee. The Address is Boral Sarani, P.O. – Boral, P.S. – Sonarpur, Kolkata-700 154, Dist. – South 24 Parganas.
OP No.9 is Smt. Krishna Sanyal. W/o. Sri Pradip Sanyal. The address is 87B, Cossipore Road, Block-“L”, Flat No.20, Kolkata-700 020.
The complainant, by filing this case states that the complainant was desirous of purchasing a flat and a car parking space, the OPs 2, 3 and 4 approached the complainant. The complainant came to know that the said property was enjoyed by the legal heirs of Nagendranath Mukhopadhyay. Later Amal Kumar Mukhopadhyay is the only alive legal heir of the said property, because other owners died as bachelors and spinsters.
OPs 5-9 decided to develop the said property and construct a multi-storeyed building. The OPs 5-9 entered into an agreement with OPs 1-4 on 21.06.2014. The OPs 5-9 executed a general power of attorney on 21.06.2014 to the OPs 1-4. The said power of attorney was registered. The complainant agreed to purchase a self contained residential flat measuring more or less 870 Sq.ft. super built up area containing two bed rooms, one dining, one kitchen, one verandah, one W.C., one toilet cum bath on the 2nd floor, North West side, Flat No-A of the G+4 storeyed building along with one car parking space.
The total consideration price was Rs.21,00,000/-, the complainant paid a total sum of Rs.19,25,000/-. The details of the payment was stated in the agreement for sale dated 27.10.2017. The balance amount was paid through EMI.
The OPs. 1-4 did not register the deed of conveyance. The complainant issued two legal notices. That the cause of action started on 21.09.2020 i.e. the date of expiry of the notice and the same is continuing day by day.
Hence, the complainant prays for passing an order imposing direction upon the OPS to execute and register the deed of conveyance in favour of the complainant, to complete the work of construction as specifically stated in the agreement dated 27.10.2017, to hand over the keys and delivery of vacant possession of the Schedule C property, to provide completion certificate to the complainant, to pay Rs.5,00,000/- as compensation for harassment, mental agony, to pay litigation cost of Rs.50,000/- only.
OPs 1-4 in the written version states that they deny the allegation made in the complaint petition. They state that the complaint is not maintainable in law and facts as well. The complainant has suppressed the materials facts. The said complaint is vexatious and speculative.
That the complaint does not come within the purview of Consumer Protection Act, 2019.
The complaint is hopelessly barred by the law of limitation.
The agreement for sale was executed in 27.10.2017 and the complaint is filed in 2020. The OP completed the construction work in 2018 and delivered possession to the purchasers and land owners. OP No.5 did not provide fresh power of attorney in favour of the developer. As a result, the process of registration in favour of all the developers were delayed. Due to absence of fresh power of attorney the work of installation of lift was pending.
The OPs 1-4 did not receive full consideration amount from the complainant. 10% of the total amount of consideration was due. Complainant is unable to pay the amount. OPs 1-4 states that due to non-cooperation of OP No.5 OPs 1-4 cannot arrange completion certificate install lift and execute deed of conveyance in favour of the purchasers.
OPs 1-4 prays for dismissal of the complaint petition.
The OPs 6, 7, 8 in their written version denied and disputed the complainant’s petition.
The complainant entered into an agreement for sale dated 27.10.2017 with the developer mainly OPs 1-4 to purchase the flat. The complainant took physical possession of the flat from the OPs 1-4. The OPs 6, 7, 8 have no deliberate latches. The OPs 6, 7 8 are ready to execute and register the sale deed in favor of the complainant in respect of the said flat. There is no deficiency in service on the part of the OPS 6, 7, 8.
The grievances alleged by the complainant is only be redressed by the developers i.e. OPs 1-4.
OP No.9 in the W/V states that OP No.9 is the co-owner of the schedule-A property of the complaint petition. They entered into an agreement with the OPs 1-4 on 21.06.2014. OP No.9 is in the physical possession of her respective allocations.
OP No.9 states that she has no deliberate latches on her part. OP No.9 is willing to execute and register the sell deed in favour of the complainant, being the proposed purchasers therein. In respect of the said flat as and when the same is directed by the Hon’ble Commission. The incomplete work is to be carried out by the OPs 1-4.
The grievances of the complainant can only be redressed by the developers 1-4.
The case was filed on 16.12.2020. The instant case was admitted on 22.12.2020. On 02.03.2021, Ld. Lawyer of the OPs 1-4 files W/V and Lawyer of the OPs 6,7, 8 files W/V. On 26.03.2021, OP No.9 files W/V. On 01.10.2021, Ld. Lawyer of the OPs 6, 8, 9 prays for expunging the names of OP No. 7, as OP No.7 had died. The name of OP No.7 is expunged from the cause title of complaint petition. On 04.03.2022, OPs 1-4 filed questionnaire.
On 05.04.2022, OPs 6, 8, 9 filed questionnaire. On 12.05.2022, the complainant files reply to the questionnaire filed by the OPs 6, 8, 9. On 13.06.2022, OPs 1-4 file evidence on affidavit. OPs 6, 8, 9 filed a petition for treating their W/V as evidence on affidavit. The prayer of OPs 6, 8, 9 is allowed. On 26.07.2022, the complainant files questionnaire. On 02.09.2022, OPs 1-4 filed reply and OPs 6, 8, 9 also filed reply separately. OP No.5 did not turn up to contest the case, hence the case was heard ex-parte against the OP No.5. On 09.11.2022, argument of Ld. Lawyer of the complainant was heard. Complainant also files BNA. On 19.12.2022, argument of OPs 1-4 was heard in part. On 07.02.2023, OPs 1-4 pray for treating his W/V as BNA. His prayer is allowed. Argument of all the parties was heard in full. Accordingly, we proceeded for giving judgement.
Points for consideration :-
- Is the complainant consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1 :-
On perusal of documents and records, it appears that the complainant intended to purchase a flat and a car parking space. The OPs 5-9 executed and registered general power of attorney in favour of the OPs 1-4. The OPs 5-9 entered into an agreement with the OPs. 1-4 on 21.06.2014. The complainant agreed to purchase a self contained flat measuring more or less 870 Sq.ft. Super Built Up Area. The complainant also booked a car parking space. The total consideration price was Rs.21,00,000/-. The details of the payment was stated in the agreement for sale. The balance amount was being paid through EMI. As the complainant booked the flat the complainant is consumers U/S 2(7) of the Consumer Protection Act, 2019. Hence, the 1st point is decided in favour of the complainant and against the OPs.
Point No.2 :-
The complainant was desirous of purchasing a flat and they booked a flat along with car parking space., at R.S. Dag No.769, L.R Dag No.582, R.S. Khatian No:444+8 decimals of danga land of R.S. Das No.446/838, L.R. Dag No.584 / 955, R.S. Khatian No:187, Mouza Boral, comprised in Dag No.769 and 446/838 under R.S. Khatian No.444 and 187. Corresponding to L.R. Dag No.582 and 584/955 under L.R. Khatian No.39, 76, 61, 319, 710, 12, 247, 1216, 1004. Now presently L.R. Khatian No.2598, 2595, 2596, 39, 2597 appearing to J.L. Khatian No.61, Touzi No.142, R.S. No.199 now within the limits of Rajpur Sonarpur Municipality, Holding No.427, Ward No.34, P.S.-Sonarpur, District – South 24 Parganas. The total consideration price was Rs.21,00,000/-. The complainant paid Rs.28,02,000/- and still some amount is due. It was being paid through EMI. The developers i.e. OPs 1-4 failed to provide proper service to the complainant. Rather they are deficient in rendering proper service. The Deed of Conveyance was not registered in the name of the complainant. The OPs 1-4 adopted unfair trade practice by deceiving the complainant. The acts of OPs 1-4 are illegal, unjust, mal file and deliberate violation to discharge their liabilities and obligations. The OPs 1-4 are legally bound to discharge their duties and liabilities to provide service to the complainant in pursuance of their undertakings to effectuate the agreement for sale to bestow the right of ownership apart from the delivery of possession. The OPs.1-4 willfully and deliberately neglected to discharge their duties and responsibilities. Owing to gross negligence on the part of OPs 1-4, to perform their duties, the complainant faced huge monetary loss. Hence it appears that OPs 1-4 are liable. OP No.5 is also liable by not invoking the fresh power of attorney to OPs 1-4. So, the 2nd point is decided in favour of the complainant and against the OPs.
Point No.3 :-
The complainant paid the amount of consideration for purchasing a flat along with a car parking space. The flat falls within Rajpur Sonarpur Municipality. The complainant made an agreement for sale for purchasing the flat in question from the developers allocation. As a result, OPs 1, 2, 3, 4 are supposed to execute and register the Deed of Conveyance in favour of the complainant. In compliance with the contents of the agreement for sale dated 27.10.2017. OPs 1, 2, 3 4 failed to do the same. Their registered power of attorney was revoked by OP No.5. The complainant spent time in mental agony and pain. The complainant spent a considerable amount. A small amount is outstanding. The complainant would provide the rest amount in the meantime i.e. at the time of registration. But the OPs 1-4 did not take any step. The deceitful activities of the OPs 1-4 and 5 have resulted in material loss to the complainant. The complainant spent time in anxiety. They were also harassed by the OPs for several times. As OP No.5 did not invoke the fresh power of attorney the developers i.e. OPs.1-4 faced problem to do the pending work. Thus the problem of the complainant was not solved. Hence, the 3rd point is decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed against the OPs 1, 2, 3, 4 on contest and ex-parte against OP No.5 with cost of Rs.50,000/-.
That the OPs 1, 2, 3, 4, 5, 6, 8 and 9 are directed to execute and register the Deed of Conveyance in favour of the complainant subject to payment of the outstanding amount by the complainant within 45 days from the date of this order.
Alternatively, let the Deed of Conveyance be registered through the machinery of the Commission within 45 days from the date of this order.
That the OPs 1, 2, 3, 4 jointly and/or severally are directed to complete the work of construction as specifically stated in the agreement dated 27.10.2017 within 45 days from the date of this order.
That the OPs 1, 2, 3, 4 are directed to hand over the keys to the complainant and to deliver vacant and peaceful possession of the subject property mentioned in Schedule-C of the Agreement within 45 days from the date of this order.
That the OPs 1, 2, 3, 4, 5, 6, 8 and 9 are directed to provide completion certificate to the complainant within the 45 days from the date of this order.
OPs 1, 2, 3, 4, 5 jointly and/or severally are directed to pay compensation to the tune of Rs.2,00,000/- to the complainant for harassment and mental agony caused to the complainant within 45 days from the date of this order.
That the litigation cost is to be paid by the OPs 1, 2, 3, 4 and 5 jointly and/or severally within 45 days from the date of this order.
That the complainant are at liberty to put the order into execution if the orders are not complied with within the stipulated period of 45 days from the date of this order.
Let a copy of the order be supplied to the parties concerned free of cost.
That the final order will be available in the following website:www.confonet.nic.in.
Dictated and corrected by me
Sangita Paul
Member
