Date of Filing: 03/01/2020
Date of Judgement: 13/06/2024
Sri Manish Deb, Hon’ble Member
Brief facts of the case is that M/s. Skywood Developers Private Limited having its registered office at 100, 201/ Sahapur, New Alipore, Kolkata – 700 053 referred to as OP No.1 Sri Kalipada Saha is Director of M/s. Skywood Developers Private Limited, S/o Phani Bhusan Saha, residing at 41 Bhupen Roy Road, P.S. Behala, Kolkata–700034, referred to as opposite party No.2 Sri Subhajit Saha, (CEO of M/s. Skywood Developers Private Limited as well as constituted attorney of Sri Tapan Mukherjee), S/o Kalipada Saha at 41 Bhupen Roy Road, P.S. Behala, Kolkata – 700 034, referred to as opposite party No.3 and Sri Tapan Mukherjee (Land Owner), S/o. Late Jiban Chandra Mukherjee, at 98C Parui Pacca Road, P.S. Parnashree Kolkata-700 061 referred to as OP No.4 in the case.
That said Tapan Mukherjee, OP No.4 being the absolute owner while seized and possessed of the aforesaid property has duly mutated his name in respect of the said property in the office of the Kolkata Municipal Corporation under Ward No.128 being Premises No.98C, Parui Pacca Road, P.S.Parnasree, Kolkata – 700 061.
That said Tapan Mukherjee being the absolute owner of the said property entered into a registered agreement for development along with the Development Power of Attorney with the Developer i.e. OP No.1 on 30.10.2014 for developing the said property.
The opposite party ultimately applied for and obtained the building plan in favour of the owner duly sanctioned by the Kolkata Municipal Corporation in respect of the proposed building plan and started construction of the said premises.
That the opposite parties constructed the G+3 storied building at Premises No. 98C Parui Road, P.S.–Parnasree,Kolkata–700061 in accordance with the building plan sanctioned by the Kolkata Municipal Corporation.
The complainants herein entered into a Sale Agreement on 23/06/2018 for purchasing a Flat being No.1/D on 1st floor measuring about 645 sq.ft. having super built up area along with undivided proportionate share of land and common amenities and other facilities situated at 98C Parui Road, P.S.–Parnasree,Kolkata–700061 at a consideration of Rs13,50,000/- out of which the complainant have already paid Rs.12,30,800/-.
That as per terms of Agreement for Sale dated 23.06.2018, the registration of the sale deed will be completed within September, 2018 from the date of agreement.
That the opposite parties in spite of received the major advance money i.e. Rs.12,30,800/- from the complainants, did not take any positive step or initiative to register the flat and delivery of the possession of the said flat to the complainants till the date of filing of the complaint petition before this commission.
That the complainants requested for several times and ultimately send several letters/notice to the opposite parties but there is no response from their side till today.
That the complainants requested several times to the opposite parties for registration and possession of the flat and ultimately served legal notice upon the opposite parties but the opposite parties make no response to do the needful as per Sale Agreement.
That the opposite parties on all occasions assured the complainants but they did not make any endeavour to execute and register the deed of conveyance and deliver possession of flat in favour of the complainants.
That as per terms and conditions of Agreement for Sale that the registration work would be completed by the OPs within September 2018 by obtaining completion certificate from the appropriate authority but till the date of filing the complaint petition, no positive response came from the opposite parties and such activities of the opposite parties shall be deemed be as refusal service as to execute and register the deed of conveyance in favour of the complainants and to handover the possession of the flat to the complainants also is deficiency of services.
The opposite parties did not comply with the requisition of the said agreement and the request of the complainant which have constrained the complainants to file this case.
POINTS FOR DISCUSSION
- Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
- Whether the present complaint is within limitation under Consumer Protection Act, 2019.
- Whether the commission has the jurisdiction to decide the present complaint
- Whether the opposite party in deficient in providing its services to the complainant.
- Is the case is maintainable or not
- Is the complainant is entitled to get relief as prayed for
It was contended that deed were to be completed within September 2018 from the date of execution of sale agreement.
As per version of the complainant, they have already paid 12,30,800/- out of total consideration money Rs.13,50,000/-, it was specifically mentioned in the second paragraph of the Page 5 of the sale agreement, the opposite parties were to complete the registration process within September 2018 and also obtain completion certificate from the appropriate authority. Whereas despite of receipts of major consideration money, the opposite parties did not comply with the requisition of the complainants and also not honored the terms and condition of sale agreement.
However, it may be pertinent to point out that the complainants have not received the executed and registered deed of conveyance and the possession of flat by the opposite parties after taking balance consideration money.
Above all, claim by the complainants remain more or less undisputed and defended by the opposite parties. In such a situation, complainants are entitled to get relief(s) from the commission as sought for.
This is fact and it is clear that the complainants are consumer to the opposite parties as defined in the C.P. Act, hence it is pertinent to state that as per application and evidence of the complainant, the opposite parties failed to comply with their promise and offers within the stipulated time and it is caused deficiency in service on the part of the opposite parties. The opposite parties refrained from countering or challenging the contents of the complaint petition. Hence the complainant is entitled to get relief(s).
Above all, claim by the complainants remains more or less undisputed and not defended by the opposite parties. In such a situation, complainants are entitled to get relief(s) from the commission as sought for.
Hence it is
ORDERED
- CC/4/2020 is allowed exparte against all OPs and directed the opposite parties to execute and register the deed of conveyance in respect of the property as mentioned in the sale agreement and schedule of the complaint petition in favour of the complainants on receipt of balance consideration money if any within 60 days from the date of this order and also deliver the peaceful possession of the flat.
- The opposite parties are also directed to pay Rs.50,000/- as compensation for harassment and also pay Rs.10,000/- towards the cost of litigation to the complainants within 60 days from the date of this order.
In the event of non compliance by the opposite parties, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Directed and corrected by me
Member
