10.....28.02.2022...
The Complainants are present today before this ld. Commission. Final Order is ready to deliver. It contains 8 pages. It is sealed and delivered in open Court/Commission.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed Ex-parte against the opposite parties with a cost of Rs.20, 000=00 (Rs. twenty thousand) only.
The opposite parties are directed to pay either jointly or severally compensation amount Rs. 4, 00,000/-[four lakh] only to the complainants within 60 days from the date of issuing this order for deficiency of serviceunder Section 2[11] and unfair trade practice under Section 2[47] of the C. P. Act 2019.
All the opposite parties are again directed:-
[1] to complete the 3BHK flats along with the 4 wheeler car parking spaces to hand over to the complainants;
[2] to issue possession letter with Completion Certificate in favour of the complainants; and
[3] to register the Deed of Conveyance in favour of the purchasers/complainants.
All these activities should be completed by the O.Ps. within 60 days from the date of issuing this order.
4] The complainants are also directed to pay to the O.Ps. the balance amount of Rs. 2,96,906.00 only on or before Registration of flats and car parking spaces but within 60 days from the date of issuing this order and they should bear the Registration fees.
In case of failure to hand over the possession letter, completion certificate and to register the Deed of Conveyance by the O.Ps. even after getting the balance amount Rs. 2,96,906=00 only, both the amount of compensation and costing will bear 7% p.a. simple interest till to the realisation.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
CC NO-45/2021
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24 PARGANAS
AmantranBazer, Baruipur, Kolkata-700144
C.C.No-45/2021
Date of filing Date of admission Date of final Order
25/03/2021 08/4/2021 28/2/2022
Name of the Hon’ble President- Sri Asish Kumar Senapati
Hon’ble Member - Sri Jagadish Chandra Barman
Hon’ble Member - Smt. Sangita Paul
Name o the advocates – 1] Mr. Sukalyan Sarker
2] Mr. Angosy Roy Choudhury
COMPLAINANTS: - 1] Khairunnesa Rahaman
Wife of Dr.Anisur Raaman
2] Dr.Anisur Rahaman
Son of late Abed Ali Biswas
3] Miss Sumaita Nasrin
Daughter of Dr.Anisur Rahaman
All are residing at ‘Kaikhali Enclave’
D- 202, Mondal Gauthi
Mother Terresa Sarani
P.O.- NSCBI Airport
Kolkata- 700052,West Bengal
VERSUS
Opposite Parties:1]Samasth Infotainment Private Limited
Represented by Mr. Kamalendu Polley
2] Simoco Telecommunication [south Asia]
Represented by Mr. Prasenjit Mukherjee
[Director and authorised representative]
3] Simoco Systems and Infrastructure Solutions Limited
Represented by Mr. Aloke Kr. Das
[Director and authorised representative]
All having their registered office at
Godrej Genesis Building, 2nd Floor,
Block EP and GP 2nd, Sector - V
Salt Lake, P. O. -Sech Bhawan
Police Station- Electronics Complex
Kolkata- 700091.
Sri Jagadish Chandra Barman, Hon’ble President in charge.
The facts leading to the filing of the instant case by the complainants may be
summarised as follows: -
This is a complaint case under Section 35 of the Consumer Protection Act 2019.This complaint case was filed by the complainants namely Mrs. Khairunnessa Rahaman, Dr.Anisur Rahaman and Miss Sumaita Nasrin before this Ld. Commission on 25/3/2021 against the opposite parties namely Samasth Infotaiment Private Ltd., Simoco Telecommunication and Simoco Systems and Infrastructure Solutions Ltd.
As per the complaint petition, the complainantsno 1 and 2 signed an agreement with the opposite parties on 22nd Oct. 2016 for a 3BHK flat being no- 2C on the 2nd floor, block 3B1 having super built up area of approximately 916 sq. feet with a car parking spaces 102.89 sq. feet being no-OP91, Block 3B1; and another agreement was also signed between complainants2 and 3 on 22nd October 2016 with the opposite partiesfor another 3 BHK flats –being no –1D in the 1st floorBlock no- 3B6 under precinct no-02 having super built up area of approx.. 916 sq. feet,along with another car parking spaces for four heeler having area of approx. 102.89 sq. feet being no-OP70 BLOCK NO 3B6 in the Project “Sanhita”. Each 3 BHK flat consist of 3 bed rooms, one dining room, one kitchen room, two toilet, one verandatogether with proportionate undivided share of the land owned by SAMASTH, TELECOM and SIMOCO SYSTEM identified in the plan approved by the appropriate authority for exclusive use for the own at Satuli, P.S. previously known as Bhangore, now Kashipur under Bhagawanpur gram panchayat, dist. South 24 Parganas, West Bengal. Consideration value was settled Rs.17,74,890=00 only for each 3 BHK flat and Rs. 1,70,00=00 only for each car parking space and value of Corpus deposit was settled Rs. 25,000=00 only. In total, consideration amount for each flat and each car parking space was settled Rs. 19, 69,890=00 only.
Accordingly, the complainantMrs. Khairunnesa paid application and allotment money Rs. 3,29,978/- only for the block no-3B6, 1ST Flat no-1D by Demand Draft/Banker’s cheque 713493 dated 26/6/2014 , State Bank of India,and the signatory authority of the O.P. SIMOCO SYSTEMS & INFRASTRUCTURE SOLUTION LTD. issued a money receipt on 27/6/2014 to the applicant. Beside it, Dr.Anisur Rahaman paid Rs. 2, 50,000/- only by means of RTGS dated 01/6/2015 to the O.Ps. as application and allotment money for flat in the block 3B1, Floor no-2ND Flat no-2C andthe signatory authority of the O.P. SIMOCO SYSTEMS & INFRASTRUCTURE SOLUTION LTD. issued a money receipt on 08/6/2015in favour of the applicant.
The O. Ps. issued a tax invoice/receipt on 14/8/2017 under no- GST/2017-18/Aug./0144 and it is clearly stated there that the complainants Mrs Khairunnessa Rahaman and Miss Sumaita Nasrin paid Rs. 15, 33,300/- only through Bank transfer on 14/8/2017 from State Bank of India for the 3 BHK flat no-ID Floor, 1st block, 3B6 and for 4 wheeler parking space –OP70, BLOCK-3B6.
On the other hand,the O. Ps. also issued a tax invoice/receipt on 14/8/2017 under no- GST/2017-18/Aug./0139 and it is clearly stated there that the complainants Dr. Anisur Rahaman and Mrs Khairunnessa Rahaman paid Rs. 15, 29,596/- only through Bank transfer [AA110432] on 14/8/2017 from United Bank of India, Shranddhananda branch for the 3 BHK flat no-2C Floor, 2nd block, 3B1and for 4 wheeler parking space –OP91, Block-3B1.
As per statement of the petition, complainants had paid Rs. 18,63,278/- only to the Opposite Party for the 3 BHK flat and car parking space in the block no-3B6 , Floorno- 1ST Flat 1D.Hence, there is a balance to pay Rs. 1,06,612/- only to the opposite parties for this flat and car parking space.
That the complainants paid Rs.17,79,596/- only for another flat being no- at no-2C Floor, 2nd block, 3B1 and for 4 wheeler parking space –OP91, Block-3B1.Therefore, complainants have to pay balance amount Rs.1,90,294/-only to the opposite parties for this flat and car parking space.
As per Agreement for Sale dated 22/10/2016,the opposite party shall hand over the possession of the flats to the purchasers herein complainants within 36 months with grace period of 6 months from the date of allotment subject to payment of total consideration. This is clearly mentioned in para 4 a possession, page 8 of the Agreement for Sale.”
But the opposite parties, as per statement, did not hand over the possession of the flats with car parking spaces till today. The O.Ps neither issued Completion Certificate nor done registration of the ‘Deed of Conveyance’in favour of the complainants. The O.Ps. sent a demand notice on Dec. 17, 2018 to Dr.Anisur Rahaman claiming Rs. 1,15,028/- to remit within 15 days from the date of issuing the demand notice. Again the O.Ps. sent a letter to Mrs. Khairunnessa on 30/01/2019 requesting to visit the office of the O. P.to pay the balance amount and complete the formalities to take delivery of possession of her booked flat.
In reply, Mrs. Khairunnesa sent a letter on 26/4/2019to Mr. Aloke Kr. Das, Director, of the O.P. to get a copy for justification of GST and she also expressed her willingness to take possession. She also demanded a copy of ‘Completion Certificate’of the flat.
On 7/5/2019, the O.P. also replied to Mrs. Khairunnesa stating as to GST and in this letter, they informed that they would apply to the appropriate authority for ‘Completion Certificate’ in June 2019. Again, Mr. Sukalyan Sarker, advocate of the complainant claimed a Xerox copy of their enrolment in GST for construction and copy of notification.
Thereafter, on the ground of unfair trade practice and deficiency in service occurred on behalf of the O.Ps., the complainants filed this instant case before this Learned Commission on 25/03/2021 in order to get relief claiming the followings:-
1] A direction upon the O.Ps. to hand over the possession of the flats and car parking spaces.
2] A direction upon the O.Ps. to do ‘ Deed of Conveyance’ of the booked flats and car parking spaces.
3]A direction upon the O.Ps.to pay a compensation amount Rs. 30,00,000/- only; and
4] A direction upon the O.Ps. to issue Completion Certificate along with the ‘possession letter’ in favour of the complainants.
5] A direction upon the O.Ps. to pay costing Rs. 25,000/- only for the instant case and so on.
After that show cause notices from the Ld. DCDRC, Baruipur were sent to the O. Ps. here Developers on 21/4/2021 satisfactorily; but none had appeared before this Ld. Commission on any stipulated dates. No written version were also filed by the opposite parties. Hence, grounds of deficiency in service and unfair trade practice occurred on behalf of the O.Ps. are not known fully in the instant case and the case is remained unchallenged. The case is proceeded ‘Ex-parte ‘ on 30/9/2021.
Upon the averments, the following points are formulated:-
POINTS FOR DETERMINATION :-
1]. Are the complainant[s] consumer?
2] Is the complaint petition filed within the pecuniary jurisdiction for adjudication?
3] Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainants?
4] Are the complainants entitled to get relief /relieves as prayed for?
EVIDENCE OF THE COMPLAINANTS
The learned advocates of the complainants submitted evidences on affidavit on 26/11/2021 before this Ld. Commission for adjudication.
DECICIONS WITH REASONS.
Points no. 1, 2, 3 & 4.
The complainants/buyers were very much interested to avail two separate 3 BHK flats and 2 car parking spaces after 42 months and signed two separate Agreement for Sale on 22/10/2016 with the Developers/O.Ps. in the Sanhita Project, mouza- Satuli, post- Pithapukur under Bhagabanpur gram panchayat, P.S. previously Bhagore, now it is Kashipur, Subdivision- Baruipur, district south 24 Parganas. The intending purchasers/complainants believed that they would get the accommodations and car parking spaces within 36 months with grace period of 6 months from the date of allotment i. e. 27/6/2014 subject to payment of total consideration. This is clearly mentioned in para 4 a possession, page 8 of the Agreement for Sale. The complainants paid Rs. 18, 63,278/- only out of total Rs.19,69,890/- only to the Opposite Party for the 3 BHK flat and car parking space in the block no-3B6 , Floor no- 1ST Flat 1D. The complainants also paid Rs. 17,79,596/- only out of Rs. 19,69,890/- only for another flat being no- at no-2C Floor, 2nd block, 3B1 and for 4 wheeler parking space –OP91, Block-3B1.
All payment are clear to us from the invoices/receipts which were issued by the Developers/ O.Ps.in the name of complainants. Hence, we are of the opinion, that the complainants are undoubtedly a consumer under section 2 (7) of the Consumer Protection Act 2019.
Relating to 2 of the points for determination, the complainants signed 2 Agreements for Salewith the opposite parties for 2 flats and 2 car parking spaces located in the Sanhita Project, mouza- Satuli, post- Pithapukur under Bhagabanpur gram panchayat, P.S. previously Bhagore, now it is Kashipur, subdivision- Baruipur, district south 24 Parganas, West Bengal. The project area is under the jurisdiction of this Learned DCDRC, South 24 Parganas. The total value of each flat along with a car parking space is Rs.19, 69,890/- only. Hence, it is filed within the time limit and pecuniary jurisdiction by the complainants for proper adjudication.
In matter whether there is any deficiency of service and unfair trade practice already occurred on behalf of the Developers/O.Ps. , it may be pointed out that the O.Ps. have received Rs. 18,63,278/- only for one flat and car parking spaces; and Rs. 17,79,596/-onlyfor another flat and car parking spacefrom the intending purchasers/complainants. There are remaining balance amount to be paid by the purchasers Rs. 1, 90,294=00 only for one and Rs. 1, 06,612=00 only for another. In total, balance amount is Rs. 2, 96,906=00 only. As a result, after taking the balance amount, it was the duty on behalf of the developers / opposite parties to hand over the 3 BHK flats and 2 car parking spaces in questions, to do registration of deed of conveyance, to deliver possession letter and completion certificate in favour of the purchasers/complainants in 42 months from the date of Agreement. The complainants were interested to pay the balance amount in time. It is clear to us that the O.Ps. were not interested to complete the flats and car parking spaces in question as well as to hand over the possession letter, completion certificate and to register the flats and car parking spaces. The opposite parties also did not pay any heed upon the anxiety, tension and harassment of the complainants. Instead of it, they tried to avoid the opposite parties in any way. Even after availing the show cause notices of the DCDRC, Baruipur, the opposite parties neglected to appear before this Ld. Commission deliberately and wilfully in ordernot to disclose their illegal acts and conducts. Therefore, there is certainly deficiency of serviceunder section 2[11] and unfair trade practice under section 2[47] of the C. P. Act 2019 occurred on behalf of the opposite parties.
So, we are of the opinion that the opposite parties are liable to pay jointly/severally costing Rs. 20,000=00 only and compensation amount Rs. 4,00,000/- only to the complainants .
In the long run, the complaint case is succeeded.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed Ex-parte against the opposite parties with a cost of Rs.20, 000=00 (Rs. twenty thousand) only.
The opposite parties are directed to pay either jointly or severally compensation amount Rs. 4, 00,000/-[four lakh] only to the complainants within 60 days from the date of issuing this order for deficiency of serviceunder Section 2[11] and unfair trade practice under Section 2[47] of the C. P. Act 2019.
All the opposite parties are again directed:-
[1] to complete the 3BHK flats along with the 4 wheeler car parking spaces to hand over to the complainants;
[2] to issue possession letter with Completion Certificate in favour of the complainants; and
[3] to register the Deed of Conveyance in favour of the purchasers/complainants.
All these activities should be completed by the O.Ps. within 60 days from the date of issuing this order.
4] The complainants are also directed to pay to the O.Ps. the balance amount of Rs. 2,96,906.00 only on or before Registration of flats and car parking spaces but within 60 days from the date of issuing this order and they should bear the charges for Registration.
In case of failure to hand over the possession letter, completion certificate and to register the Deed of Conveyance by the O.Ps. even after getting the balance amount Rs. 2,96,906=00 only, both the amount of compensation and costing will bear 7% p.a. simple interest till to the realisation.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
Dictated and Corrected by me.
[Jagadish Chandra Barman]
[Hon’ble President -in -Charge]
