West Bengal

South 24 Parganas

CC/151/2015

Sm. Jharna Saha, Wife of Sri Amulya Kumar Saha. - Complainant(s)

Versus

M/S. United Associates a registered partnership Firm. - Opp.Party(s)

Soumendra Roy Chowdhury.

10 May 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _151_ OF ___2015_

 

DATE OF FILING : 27.3.2015                     DATE OF PASSING JUDGEMENT:  30/05/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu  & Subrata Sarker

                                                                             

COMPLAINANT             :  Sm. Jharna Saha ,w/o Sri Amulya Kumar Saha of Flat no.D, 2ndFloor, 25, Garfa Road, now known as 2, B.C. Roy Road, P.S. Garfa, Kolkata – 78 ,presently residing at Rajat Flora, F-4AH, 10/3, Netaji Sub has Road, Kolkata – 103, P.S. Narendrapur.

 

-VERSUS  -

 

O.P/O.Ps                            :  M/s United Associates, of 28/1, Gariahat Road (South), Kolkata- 31,

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

The short case of the complainant is that she entered into an agreement for sale which is appearing from the exchange of letter dated 19.1.1992 annexed herewith with the O.P. It is the further case of the complainant that from the letter dated 19.1.1992 the details of purchased flat of 670 sq.ft along with from time to time payment is also appearing between the parties which is admitted documents. It has further stated that total consideration was fixed at Rs. 1,85, 250/- and the same has already been paid  and possession was also received from the O.P and possession certificate is also filed by the complainant which is annexure C of this case. But the main allegation of the complainant is that although possession was given on 31.8.2003 but the O.P did not complete the residue work of the flat and some works were left pending i.e. unfinished toilet, unfinished kitchen, Corporation water connection, sewerage connection to the main, registration, mutation  and miscellaneous works to make it habitable. It has further stated that the complainant soon after possessing the flat obtained electric connection and meter in her name and is in occupation and enjoyment thereof which are annexed as annexure D series. Since the O.P is very much reluctant to execute and register the deed of conveyance and complete the unfinished works , this case is filed .

The O.P inspite of sending summon and even giving opportunity for filing written version not only one day but consecutive three dates and even imposing cost of Rs.1000/- did not turn up and filed written version, for which in the fourth day when the O.P did not turn up case was fixed for exparte ,that is why exparte argument was heard.

Point for determination  in this case is whether there is any deficiency in service on the part of he O.Ps or not.

                                                            Decision with reasons

Admittedly there is no agreement for sale filed. But from the documents i.e. the demand letter of the O.P dated 19.1.1992 along with its annexure and subsequent money receipts , possession certificate, clearly suggest that there was an agreement between the parties , for which O.P demanded  balance sum of Rs.31578.50/- from the complainant in respect of the flat no.D measuring 650 sq.ft  of their project at Nandibazar. So, it cannot be said that there was no agreement for sale . Accordingly we have considered all pros and cons and subsequent events , acts, deeds of the parties an on perusal of the documents i.e. money receipts, demand notice and possession certificate etc. and possession fo the said flat by the complainant, which are unchallenged testimony that complainant has been able to prove the deficiency in service and unfair trade practice of the O.P, particularly when the O.P did not take any steps for registration of the said flat .

But complainant failed to prove his claim that his flat is not in habitable condition and some works are left out, by appointing any technical persons having knowledge of construction. So, the allegation leveled in complaint petition para 6 regarding incomplete works as described (i) and (vi) have not been proved even in exparte . Moreover it is the case of the complainant that he is in possession of the said flat since 1.1.1993 as per possession certificate filed by the complainant (annexure C). So, if the toilet, kitchen , corporation water, sewerage connection to the main were not completed ,how the complainant is occupying the said flat without having water , unfinished toilet , kitchen and sewerage connection to the main, particularly when the sewerage connection if not fitted to the main, then there must be water logging in the said building. So, all these things cannot be proved, until and unless the expert is being appointed on the prayer of the complainant but the said prayer was not made by the complainant even no attempt was made. So, said claim of incomplete works is turned down. But the other prayer i.e. non-execution of deed of conveyance is proved and it is also proved by non-contesting the case by the O.P  and appointment of machinery of the Forum regarding execution and registration of the deed of conveyance should be allowed and definitely complainant is suffering from mental agony and harassment. So, some amount of compensation should be given along with the cost of the case.

It is to be mentioned here that “In a Consumer Protection Act 1986 summary trial of the consumer complaint – precedence over other cases be if civil or criminal in nature – pendency of a civil suit between the parties in the instant case- instant situation covered by an un-reported decision dated 7.11.2014 in IA no.1746/14 passed by the Hon’ble National Commission”. It should be mentioned here that CPR NC 191(4) 2012 the Hon’ble National Commission has observed that the remedy available under C.P Act is in addition to normal remedy or other remedy that may be available to the complainant. So, pending in the Civil Court in different situation has no bar at all or embargo in the matter of procuring necessary relief in alternative Rederessal Forum i.e. before this bench in view of section 3 of the C.P. Act, 1986.  

With that observation it is,

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against the O.P.

The O.P is directed to execute and register the deed of conveyance in respect of the flat in dispute in favour of the complainant within one month from the date of the order, failing which, we appoint Sri Madan Mohan Das as an Advocate Commissioner to execute and register the deed of conveyance on behalf of the O.Ps in favour of the complainant in respect of the flat in dispute of total area 650 sq.ft as per prayer of the complainant and in that event complainant has to pay remuneration of Rs.6000/- to the Ld. Commissioner .

The O.P is also directed to provide completion certificate in respect of the building within three months form the date of this order.

The O.P is also directed to pay compensation to the tune of Rs.2 lac for causing mental agony and harassment and cost of Rs.10,000/- within the stipulated period of one month from the date of the order ,failing which, complainant is at liberty to execute the order through this Forum and in that event interest will carry @10% p.a from the defaulted date till realization.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                       Member                                               President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

           

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed in exparte against the O.P.

The O.P is directed to execute and register the deed of conveyance in respect of the flat in dispute in favour of the complainant within one month from the date of the order, failing which, we appoint Sri Madan Mohan Das as an Advocate Commissioner to execute and register the deed of conveyance on behalf of the O.Ps in favour of the complainant in respect of the flat in dispute of total area 650 sq.ft as per prayer of the complainant and in that event complainant has to pay remuneration of Rs.6000/- to the Ld. Commissioner .

The O.P is also directed to provide completion certificate in respect of the building within three months form the date of this order.

The O.P is also directed to pay compensation to the tune of Rs.2 lac for causing mental agony and harassment and cost of Rs.10,000/- within the stipulated period of one month from the date of the order ,failing which, complainant is at liberty to execute the order through this Forum and in that event interest will carry @10% p.a from the defaulted date till realization.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                       Member                                               President