DATE OF FILING : 29-06-2012.
DATE OF S/R : 28-08-2012.
DATE OF FINAL ORDER : 30-11-2012.
TAPAN KUMAR GHOSH.
S/O-Late Benukar Ghosh, 52/4, Panchanantala Road, flat no. 201, ( 2nd floor ),
P.O. and P.S. Bally, District –Howrah.
--------------------------------------------------------------- COMPLAINANT.
- Versus -
1. Sai Development,
Ratan Dutta, S/o. late Panchanan Dutta, 29, Deovangazi Road, P.S. Bally,
District – Howrah, PIN – 711101.
( b ) Rabindra Nath Sarkar,
s/o. late Santiranjan Sarkar,
52/4, Panchanantola Road ( 2nd floor ),
P.O. & P.S. Bally,
District – Howrah,
PIN – 711101.
2. Sri Krishnendu Ganguly,
3. Sri Dibyendu Ganguly,
nos. 2 & 3 both sons of late Bireswar Ganguly,
residing at 52/4, Panchantantala Road, P.S. Bally,
District – Howrah.
4. The Branch Manager,
Bank of Baroda, Manicktala Branch,
159/A, Vivekananda Road,
Kolkata – 700 006.-------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.Ps. to execute and register the sale deed in favour of him and a compensation of Rs. 5,00,000/- for denial of service and mental suffering and harassment, and for cost of litigation of Rs. 60,000/-.
2. It is the specific grievance of the complainant, Sri Tapan Kumar Ghosh,
that in spite of receiving Rs. 3,63,500/-, the o.p. nos. 1(a) & 1(b) have not executed the Deed of Conveyance in favour of the complainant in terms of the Agreement for Sale dated 14-02-2006 entered into by and between the parties which was also notarized on 09-03-2006 vide annexure Agreement for sale dated 14-02-2006. The complainant paid Rs. 3,63,500/- to o.ps. no. 1(a) & 1(b) to purchase a flat of scheduled description out of total consideration amount of Rs. 3,90,000/-. And o.p. nos. 1(a) & 1(b) also handed over possession of the said flat to the complainant on 05-04-2006 vide annexure letter dated 03-04-2006 of o.p. nos. 1(a) & (b). And complainant also took over the possession of the flat. But even after handing over the possession of the flat, o.p. nos. 1(a) & (b) did not pay any heed to execute the deed of conveyance in favour of the complainant, although for several times, complainant requested the o.ps. to do the same after accepting the rest amount of Rs. 26,500/-. The complainant further stated that on 16-12-2011, o.p. no. 4 appeared with some unknown persons and instructed the complainant's family to vacate the flat within 15 days as the flat in question had been mortgaged with them. Being shocked, complainant also sent one lawyer's notice dated 19-12-2011 to o.p. no. 4 as well as to o.p. nos. 1(a) & 1(b) and copy of letter was duly forwarded to o.p. nos. 2 & 3. And even after such incident, complainant requested o.p. nos. 1(a) & (b) to register and execute the Deed of Conveyance but all went in vain. Finding no other alternative, complainant filed this instant petition on 29-06-2012 praying for a direction to be given upon o.p. nos. 1 to 3 to register and execute the Deed of Conveyance and to pay a compensation of Rs. 5,00,000/- and a litigation cost of Rs. 60,000/- and to produce original Agreement for Sale dated 14-02-2006 along with other prayers.
3. Notices were served upon o.ps. but none appears except o.p. nos. 1(a) &
1(b). Accordingly the case was heard ex parte against o.p. nos. 2, 3 & 4.
DECISION WITH REASONS :
4. As the total payment was made by the complainant to o.p. nos. 1(a) & (b),
complainant is the consumer of o.p. nos. 1(a) & (b).
5. We have carefully gone through the petition of complaint sworn on
affidavit along with all documents including money receipts. We have also considered the written version filed by o.p. nos. 1 (a) & (b). And it is not denied by the o.p. nos. 1 ( a ) & ( b ) that one agreement for sale was executed on 14-02-2006 and duly notarized on 09-03-2006 by and between the parties. And in terms of that Agreement, on 05-04-2006, the possession of the flat as scheduled un 'A', 'B' and 'C' in Agreement for sale dated 14-02-2006 was handed over to the complainant by the o.p. nos. 1(a) & (b). And o.p. nos. 1(a) & (b) have not denied the receipt of payment of Rs. 3,63,500/- and vide para no. 16 of their written version also they have expressed their willingness to execute and register the Deed of Conveyance in favour of the complainant. But here, we fail to understand why they did not do so since 05-04-2006 when they already handed over the possession to the complainant. It shows their negligent attitude towards the complainant which ultimately forced the complainant to file this case. O.P. nos. 1(a) & (b) already received the major portion of the consideration money. It is he who should be more duty bound who has taken money. Under the above circumstances, we hold o.p. nos. 1(a) & (b) to be deficient in service and they are also found to be guilty of causing mental harassment to the complainant. Accordingly the case succeeds on merit with cost against o.p. nos. 1(a) & (b) and is dismissed against o.p. nos. 2, 3 & 4 without cost.
Hence,
O R D E R E D
That the C. C. Case No. 71 of 2012 ( HDF 71 of 2012 ) be allowed on contest with costs against the O.P. nos. 1(a) & (b) and dismissed ex parte against the rest.
The O.P. nos. 1 (a) & (b) are directed to execute and register the Deed of Conveyance in favour of the complainant after receiving the rest amount of Rs. 26,500/- from the complainant within 30 days from this order, in default Rs. 50/- per day shall be charged against them till registration. The complainant do get an award of Rs. 50,000/- as compensation and Rs.10,000/- as litigation cost. The entire amount of Rs. 60,000/- shall be paid to the complainant by o.p. nos. 1(a) & (b) within 30 days from this order ,in default it will carry an interest @ 12% p.a. till full realization. The registration cost shall be borne by the complainant. And o.p. nos. 2 & 3 are directed to put their signature as the confirming parties in terms of the Agreement dated 14-02-2006.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
