West Bengal

Siliguri

87/S/2012

SRI TAPAS MUKHERJEE, - Complainant(s)

Versus

SMT. KALPANA PAUL, - Opp.Party(s)

15 Sep 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO.    :87/S/2012.                    DATED : 15.09.2015.

                

BEFORE  PRESIDENT                : SRI BISWANATH DE,

                                                                    President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS               : SMT. PRATITI BHATTACHARYYA &

                                                                    SRI PABITRA MAJUMDAR.

 

COMPLAINANT                       :SRI KAMAKHYA DUTTA,

 S/O Late Gopal Dutta,

 Nabin Sen Road, Mahananda Para,

 Ward No. 10 of S.M.C.,

 P.O. & P.S. - Siliguri, Dist. - Darjeeling

 Pin Code -734001.

 

O.P.                         The Branch Manager,

 Bajaj Allianz General Insurance Co. Ltd.

 Saharan House, 2^nd Floor, above ICIC Bank^,

 2^nd Mile, Sevoke Road, P.O. - Siliguri,

 Dist- Darjeeling, Pin Code-734001.

 (Insurer of Vehicle No.WB-74Z-0863 Motorcycle).

                                  

FOR THE COMPLAINANT           : Sri Subhash Gupta, Advocate.

FOR THE OP                         : Sri Kanak Lal Kundu, Advocate.­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________________________________________________________________________________

 

J U D G E M E N T

 

 

 

Mr. Biswanth De, Hon’ble President

 

 

 

 

 

The case of the complainant is that OP No.5 who constructed three storeyed building on the land of OP Nos.1 to 4 made agreement to purchase a flat.  Accordingly one agreement was signed between OP No.5 and the complainant.  The consideration price of the flat was Rs.5,00,000/-.  The complainant paid the consideration amount of Rs.4,50,000/- out of Rs.5,00,000/-, but in spite of payment sale deed of the flat had not been executed by the OP No.5 and OPs have not taken steps to execute such sale deed.  OPs have not been provided complainant completion certificate.  Accordingly, this case has been filed by the complainant for necessary direction upon the OPs to execute and register the sale deed and compensation of Rs.50,000/-.  The complainant also prayed for occupancy certificate. 

OP Nos.1 to 3 has filed written version denying inter-allia all the material allegations as raised by the complainant.  It is specific defence of OP Nos.1 to 3 that the complaint has not been filed within stipulated time as per Section 24 (A) of Consumer Protection Act.  It is also stated that in terms of agreement dated 26.08.2002 they executed a General Power of Attorney appointing the OP No.5 as their constituted attorney to execute the deed of conveyance with regard to the developer area to the persons and there is no duty of these OP to execute sale deed in faovur of the complainant.

OP No.5 has filed written version denying inter-allia all the material allegations as raised by the complainant.  It is positive case of the OP No.5 is that OP No.5 was ready and willing to handover the sale deed with respect to the said flat, but following non performance of contract as embodied in the said agreement dated 26.08.2002 by the owners of the said land described in ‘A’ Schedule of the complaint by OP Nos.1 to 4 to the extent of joint execution and registration of the sale deed in favour of the complainant by them despite several written and oral reminders by OP No.5, the OP No.5 is unable to handover the sale deed to the complainant with respect to the said flat.  So, there is no deficiency in service on the part of the OP No.5.  It is also the case of the OP No.5 is that the case is also barred by limitation. 

Complainant has filed the following documents :-

1.       Photocopy of Agreement dated 18.02.2004.

2.       Photocopy of Agreement to Sale, dated 30.03.2004.

3.       Photocopy of Loan Disbursement Certificate and Loan Application.

4.       Photocopy of Money Receipts (3 Nos.).

5.       Photocopy of letter dated 28.04.2004.

 

OP No.5 has filed the following documents :-

1.       Xerox copy of loan letter dated 15.09.2012.

2.       Xerox copy of possession certificate dated 04.10.2004. 

3.       Xerox copy of lawyer letter dated 15.09.2012.

4.       Xerox copy of lawyer letter dated 21.09.2012 along with postal receipts and return of A/D. 

 

          Complainant has filed affidavit-in-chief.

Complainant has stated that OP No.5 is a promoter and developer.  OP Nos.1 to 4 are the owners of the land.  OP No.5 constructed flat on the land of OP Nos.1 to 4.  OP Nos.1 to 4 also executed a general power of attorney in favour of OP No.5 to execute agreement for sale with intended purchasers from the developers area of three storeyed building.  OP No.5 made contract to sell 740 Sq. Ft. are to the complainant as shown in the B Scheduled property.  The complainant took loan from H.D.F.C. Bank and in this way the complainant paid Rs.4.5 lacs to the OP No.5 against the total consideration money of Rs.5,00,000/-.  Thereafter, OP No.5 issued a letter to the complainant to take possession of the B scheduled flat.  Thereafter, complainant paid Rs.50,000/-.  OP No.5 assured them to take immediate step for executing necessary sale deed with all common facilities and amenities of the three storeyed building, but OP No.5 did not take any positive step to execute sale deed in favour of the complainant regarding the said flat.  OP No.5 taking different plea in several times refused to execute the sale deed in favour of the complainant.  Hence, the case has been filed by the complainant before this Forum for relief.  It is submitted by the complainant that as consideriration has been paid to OP No.5, but OP No.5 did not make deed of registration in favour of the complainant.  Accordingly necessary direction may be given to OP No.5 for execution and registration of the sale deed in favour of the complainant.

OP No.5 has filed affidavit-in-chief.  OP No.5 has admitted in his affidavit–in-chief the contention and evidence of the complainant regarding non-performance, execution of sale deed in favour of the complainant.  The OP No.5 stated that due to non-performance of contract as embodied in the said agreement dated 26.08.2002 by owners of the said land described in A Scheduled in the complaint to the extent of joint execution and registration of sale deed, in favour of the complainant by them.  Thus OP No.5 shifts the burden of execution of sale deed on the OP Nos.1 to 4. But OP No.5 did not adduce the agreement dated 26.08.2002 executed by the owners of the said land regarding ‘A’ Scheduled of the property, as per evidence-in-chief in para-14 of OP No.5.

In reply of questionnaire of complainant with regard to question no.12, the OP No.5 stated that on 15.09.2012 and on 21.09.2012 through his advocate he served notice to the OP Nos.1 to 4 to give registration of the flat including the complainant. 

OP No.2, Subrata Paul has filed evidence-in-chief.  He stated in para-4 that they in terms of agreement dated 26.08.2002 executed a general power of attorney appointing OP No.5 as their constituted attorney to execute the deed of conveyance with regard to the developers area to the person/person of the choice of the OP No.5.  OP No.2 also stated that they had never been requested by the complainant to execute and register the necessary sale deed with regard to the ‘B’ Scheduled flat to the complainant, even in the last week of June, 2012.  The OP No.2 also stated that they are not party to the purported agreement, the questions of performance of contract does not arise. 

It appears from the record that only Subrata Paul has adduced evidence.

OP Nos.1, 3 & 4 did not say anything.

The agreement dated 26.08.2002 on which OP No.5 relies has not been produced in original before this Forum.  However, this general power of attorney empowers OP No.5 to execute any sale deed or anything. 

During argument, ld advocate of the OP No.5 has submitted that such kind of dispute does not come within the purview of Consumer Protection Act and that the complainant filed this case after period of limitation and that there is no reliable independence evidence.  So, the complainant’s case should be dismissed.

In this case at the time of argument, the complainant was absent.  No written notes on argument has been filed by the complainant.

However, considering the document and material on record, it appears that the case of the complainant is admitted by OP No.1, 2 3, 4 & 5.  OP No.5 also admits the case of the complainant only different is that OP No.5 the promoter did not execute sale deed or did not cause execution of sale deed in favour of the complainant.  The OP Nos.1, 2, 3 & 4 empowers OP NO.5 to execute sale deed or any other document by execution of the general power of attorney.

It is admitted fact that complainant has paid money after taking loan from bank and got possession of the flat.  Only fact is that sale deed has not been executed in his favour.  To the total responsible lies on the OP No.5 for non-execution of the sale deed. 

Therefore, after considering material on record and documents, oral evidence and documentary evidence, we are convinced that material on record is sufficient to prove the complainant’s case to get relief as contemplated in Section 14 of the Consumer Protection Act. 

The case against OP Nos. 1, 2, 3 & 4 has no basis at this point as OP Nos.1, 2 3 & 5 has empowered OP No.5 to do all acts. 

So, the case against OP Nos.1, 2, 3 & 4 is dismissed and the case is allowed on contest against OP No.5/Arup Nandy. 

The OP No.5 is liable to pay compensation and other prayer.

Hence, it is

                    O R D E R E D

that the Consumer Case No.87/S/2012 is allowed on contest in part