In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No. 252 / 2005
- Sri Ashes Karmakar,
3C, Shanagar Road, Kolkata-26. …... Complainant
...Verses...
- Sri Pijus Sarkar,
Partner and Authorised Reprehensive of
M/s Trikaya Holdings, Developer / Promoter,
35/15, Padda Pukur Road, Kolkata-20.
- Smt. Supriya Sarkar, Partner,
M/s Trikaya Holdings, Developer / Promoter,
35/15, Padda Pukur Road, Kolkata-20
- Sri Probhat Das, Partner,
M/s Trikaya Holdings, Developer / Promoter,
35/15, Padda Pukur Road, Kolkata-20
- Sri Nanda Dulal Chakraborty,
3C, Shahnagar Road, Kolkata-26.
- Sri Sachi Dulal Chakraborty,
3C, Shanagar, Kolkata-26.
- Smt. Shila Kushari,
3C, Shanagar, Kolkata-26.
- Smt. Sipra Mukherjee,
3C, Shanagar, Kolkata-26.
- Smt. Sima Mukherjee,
91/9A, Tollygunge Road, Kolkata-33.
- Commissioner, C.M.C.,
5, S.N. Banerjee Road, Kolkata-13.
- The Chief Engineer Buildings, K.M.C.,
5, S.N. Banerjee Road, Kolkata-13.
- The Chief Engineer, Water Supply, K.M.C.,
5, S.N. Banerjee Road, Kolkata-13.
- The Chief Engineer, Sewerage Dept., K.M.C.,
5, S.N. Banerjee Road, Kolkata-13. ….... Opposite Party
Present : Sri S. K. Majumdar, President.
Sri J. Saha, Member
Order No. 3 3 Dated 2 2 / 0 7 / 2 0 1 0
The instant case arises out of the petition of complaint of Sri Ashesh Karmakar of 3C, Shahnagar Road, Kolkata-26 u/s 12 C.P. Act, 1986 filed on 25.7.05 against (1) Pijus Sarkar, Partner and authorized representative of two other partners of M/s Trikaya Holdings, Developer and Promoter having its regd. office at 35/15 Paddapukur Road, Kolkata-20, (2) Smt. Supriya Sarkar, Partner of M/s. Trice Holdings with regd. offict at 35/15 Paddapukur Road, Kolkata-20, (3) Sri Probhat Das, Partner of M/s. Trikaya Holdings with regd. offict at 35/15, Paddapukur Road, Kolkata-20, (4) Sri Nanda Dulal Chakraborty of 3c, Shahnagar Road, Kolkata-26, (5) Sri Sachi Dulal Chakraborty of 3C, Shahnagar Road, Kolkata-26, (6) Smt. Shila Kushari of 3C, Shahnagar Road, Kolkata-26, (7) Smt. Sipra Mukherjee, C/o Shila Kushari of 3C, Shahnagar Road, Kolkata-26, (8) Smt. Sima Mukherjee of 91/9A, Tollygunge Road, Kolkata-33, (9) Commissioner, KMC, (10) Chief Engineer, Buildings, CMC, (11) Chief Engineer, Water Supply, CMC and (12) Chief Engineer, Sewerage, CMC, all (Sl. 9 to 12) of 5, S.N. Banerjee Road, Kolkata-13 with a prayer to direct the o.ps. to (a) complete within one month the left out construction inclusive of sewerage and water connection of the building in question and obtain the completion certificate from the KMC, (b) execute and register the deed of conveyance within three months after obtaining the KMC completion certificate from the KMC and in default, to pay interest on the consideration amount and all other charges totaling to Rs.6,40,000/- @ 5% p.a. commencing from the date of payment in full of the amount and till the date of formal delivery of the possession of the flat no.1A, (c) refund the money paid for installation of CESC main cable of the building and the advance taken for interior installation of electric line of flat 1A (totalling to Rs.31,667/-) after deduction of proportionate share of complainant for CESC mains installation with interest @ 10% p.a., (d) pay compensation of Rs.1,50,000/- for the professional loss, harassment and loss and injury the complainant suffered from due to the unfair trade practice and deficiency of service on the part of o.p. no.1 in particular, litigation cost and (f) such other orders as the forum deems fit.
Specific case is that on being attracted by the propaganda and verbal advertisement of o.ps. in particular of approach of Sri Dilip Sarkar, h/o, Smt. Supria Sarkar, o.p. no.2 of the instant petition, the complainant decided to purchase the flat measuring 600 sq.ft. more or less at the 1st floor of southern side of proposed newly constructed building, as per sanctioned plan of KMC. And the said flat was booked by the complainant at the agreed consideration of Rs.900/- only per sq.ft. in respect of built up area as proposed by o.p. no.1, the complainant on 6.5.2000 paid to o.p. no.1 Rs.30,000/- only against proper receipt from the o.p. no.1.
This apart, the complainant paid Rs.5,40,000/- to the o.p. no.1 by cheques in instalments during the ongoing construction period commencing from the date of booking, i.e. 6.5.2000. Moreover, on the insistence of o.p. no.1, the complainant paid Rs.85,000/- for extra built up carpet areas, if any, to be determined finally at the time of registration and execution of deed of conveyance of the flat in question.
The complainant also furnished the details of payments in instalments to o.p. no.1 also been furnished which are evident from the annex-Lot A.
This apart, Rs.50,000/- was realized by o.p. no.1 from the complainant as advance for interior electrical installation of flat in question.
Besides, the interior electrical installation charge the o.p. no.1 demanded and realized Rs.13,300/- only from the complainant for installation of CESC main cable line in the premises in question, annex-Lot B.
Again an additional amount of Rs.10,000/- only ws paid by the complainant to o.p. no.1 against proper receipt for purchase of marble and its fixing at flat 1A. after the elapse of two years from the agreed date of handing over the formal possession of the flat in question, the o.p. no.1 being hard pressed handed over the key of the flat no.IA in formally towards the 1st week of April, 2004.
But on 30.3.04 by a notice u/s 401 of CMC Act, 1980 all the construction works at the premises no.3C, Shahnagar Road, Kolkata-26 was stopped, annex-C. The o.p. no.1 started to take one plea or another to conceal the fact that the KMC had issued notice on 30.3.04 to demolish the flat in question as per the notice of the KMC, annex-C.
Since no response has come from the o.ps. the complainant has filed this case in the forum.
Decision with reasons:
Perused the petition of complaint, affidavit of evidence of the complainant and w/v of o.p. nos.9 to 12.
The complainant filed an amendment petition to inducted o.p. nos.9 to 12 as o.ps. in order to prove his case which was allowed vide order no.3 dt.17.11.05. W/v o.p. nos.9 to 12 filed on 4.8.06.
The w/v of o.p. nos.1,2 and 3 filed on 4.8.06, additional affidavit of evidence of the complainant filed on 12.6.08, BNAs of the complainant, o.p. nos.1 to 3, o.p. nos.9 to 12 respectively and documents on record. Since o.p. nos.4 to 8 were absent all along and no steps were taken by them, ex parte order was passed against them vide order no.8 dt.13.11.06. Meanwhile, o.p. nos.1 to 3 by filing one petition on 8.6.09 have raised the legal authority of the authorized agent to audience before the forum on behalf the complainant. in view of the above situation, the complainant in person has adopted the BNA filed by his authorized agent on 12.1.10.
From the relevant papers and documents on record, it has been evident that o.p. no.1 was one of the partners and authorized representative of two other partners of M/s. Trikaya Holdings and constituted attorney registered at the Registering Office, Nilgiri, Orissa being Book no.1, pages 95 to 106 for the year 1999. It has also been evident from the relevant papers and documents on record that o.p. no.1 used to receive money against booking offer from the intending purchasers concealing the receipt of notice dt.30.3.04 of the CMC u/s 401 of the Calcutta Municipal Corporation Act, 1980 “to stop forthwith deviation from sanction plan at premises no.3C, Shahnagar Road” (annex-C of the petition of complaint is nothing but unfair trade practice on the part of o.p. nos.1 to 3.
This apart, the failure of o.p. nos.1 to 3 to hand over the flat in question to the complainant within the stipulated time as well as execution of the deed of conveyance of the flat in question as per sanctioned plan of KMC is a glaring example of deficiency of service on the part of o.ps. In this connection the report of Asstt. Engineer, Bldg. Deptt. KMC dt.10.5.06 regarding the deviation from the sanctioned plan is not worthy (annexure to the w/v of o.p. nos.9 to 12).
The o.p. nos.1 to 3 could not be able to adduce any tangible evidence to controvert the allegations of the complainant Thus, the complainant has won the case on contest.
Hence, ordered,
That o.p. nos.1,2 and 3 are directed jointly and/or severally (a) to arrange for an alternative flat of same size and same position, i.e. 1st floor, front open to south within or near the KMC ward no.88 within three months from the date of communication of this order, (b) failing above, to pay back the current market value of a new flat of same size and position of the locale wherein the premises 3C, Shahnagar Road belongs or nearby within 90 days from the date of communication of this order, and in default, the said amount will carry an interest @ 10% p.a. till its recovery in full, (c) to pay back Rs.28,300/- (Rupees twenty eight thousand three hundred) only received by o.p. nos.1 to 3 for interior electrical installation and interior decoration within 90 days from the date of communication of this order and in default, the amount will carry an interest @ 10% p.a. till its recovery in full, (d) to pay compensation amounting to Rs.50,000/- (Rupees fifty thousand) only for mental agony, harassment, loss of prestige and financial loss suffered by the complainant due to adoption of unfair trade practice and deficiency of service by o.p. nos.1 to 3 within 90 days from the date of communication of this order and in default, the amount will carry an interest @ 10% p.a. till its recovery in full, and (e) to pay litigation cost of Rs.10,000/- (Rupees ten thousand) only within 90 days from the date of communication of this order and in default, the amount will carry an interest @ 10% p.a. till its recovery in full. No order is passed in respect of o.p. nos.9 to 12 as no relief is asked for from them.
Fees paid are correct.
The case is thus disposed of from this forum.
Supply certified copy of this order on payment of prescribed fees.
____________ ______________
MEMBER PRESIDENT
