Date of filing: 17/11/2021
Date of Judgment: 28/07/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed under section 35 of the Consumer Protection Act, 2019 by Smt. Pratima Chowdhury alleging deficiency in service and unfair trade practice on the part of the opposite parties (referred as OPs hereinafter) namely (1) Shib Sankar Sarkar partner of M/s. Pragati Enterprise (2) Sri Amal Das (3) Sri Anup Santra (4) Dr. Dulal Manna alies Dr. Dulal Chandra Manna and (5) Smt. Tota Roy.
Case of the complainant in short is that she purchased one flat measuring area of more or less 684 sq. ft. super built up area along with a covered garage in premises no. 146, Sekh Para, P.S. formal Regent Park and now Bansdroni, Kolkata – 700 096. The entire consideration amount was paid to the OP 1 developer as per the agreement for sale entered into between them dated 16/12/2010. Thereafter, deed of conveyance was registered on 19/02/2014 in favour of the complainant and she was handed over formal possession of the flat. But Op 1 the developer kept on denying to give the formal possession of the garage. However, OP 1 handed over formal possession of the 4th garage to the complainant which was not sold by him to others, lying and situated on the South East corner of the building. But it came to the knowledge of the complainant on 01/10/2021 that with an intention to cheat the complainant, OP 1 initiated efforts to illegally hand over the garage space on the said South East Corner to one Amal Das who is the OP No. 2 in this case. The said OP 2 tried to encroach the garage of the complainant claiming that OP 1 had handed over him the possession of the same by executing some documents. So the present complaint has been filed by the complainant praying for directing the OP 1 to immediately hand over the formal possession of the covered garage space within the premises of schedule ‘A’ preferably the garage in the South East corner of the building described in the schedule ‘B’, to pay compensation of Rs. 2,50,000/- and litigation cost of Rs. 50,000/-.
On perusal of the record it appears that on service of notice as OPs did not turn up, the case has been heard exparte.
So the only point requires determination is whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
In order to substantiate her claim, complainant has filed the deed of conveyance executed and registered on 19/02/2014. On scrutiny of the said deed of conveyance it appears that complainant had purchased the flat described in schedule ‘B’ of the said deed of conveyance and it also appears from the recital in the deed at page 13 that “the said transaction also included a covered garage within the same premises”.
It may be pertinent to point out that on a careful scrutiny of the said deed of conveyance, it is evident that only the possession of the flat was delivered to the complainant in habitable condition. In four corners of the deed, there is no mentioned that the possession of the covered garage was also delivered to the complainant on the date of registration of the said deed. However it is admitted case of the complainant as stated in the complaint that the formal possession of the 4th garage was handed over by the OP 1 to the complainant. Though no specific date has been mentioned by the complainant as to when the possession of covered garage was handed over. Said statement in the complaint reads as follows:-
“That in due course it came to the knowledge of the petitioner that from among the 4 sanctioned garage spaces, the respondent no. 1 had already sold out three and as such the said respondent no. 1 was obliged to hand over the formal possession of the 4th garage to the present petitioner lying and situated on the South East corner of the building which has been marked with red lines in the copy of the building plan”.
It may be pertinent to point out that the complainant in this case has prayed for directing the OP 1 the developer to immediately hand over formal possession of the covered garage space preferably the garage on the South East corner of the building. But the aforesaid statement in the complaint highlighted above clearly suggests that formal possession of the 4th garage was already handed over to the complainant. So question of giving any further direction in this regard, does not arise. If there is any encroachment by any other owner or occupier, the relief lies before the competent Civil Court. It may however be mentioned that complainant has prayed for directing the OP developer to handover the formal possession of garage described in Schedule ‘B’ but complaint does not have any schedule leave aside schedule ‘B’. In the deed of conveyance also description of the flat only has been mentioned in the schedule therein.
So in such a situation and in view of the discussions as highlighted above, present complaint is liable to be dismissed.
Hence
ORDERED
CC/553/2021 is dismissed exparte.
