Smt. Sangita Paul, Member
This is a case filed by Shri Subrata Chakraborty, son of Chandan Bihari Lal Chakraborty of 121, Swami Vivekananda Road, Howrah, Pin -711 101, at present residing at Sonarpur, Kolkata-700 152, Dist.-24 Pgs (South) against Smt. Manju Roy, W/o. Late Paritosh Kumar Roy, Smt. Tania Biswas @ Roy, D/o. Late Paritosh Kumar Roy, Smt Papia Mitra @ Roy D/o. Late Paritosh Kumar Roy, Sri Ashim Kumar Roy S/o. Pramatha Nath Roy, Manjuri, a firm represented by proprietor Sri Paritosh Mondal and Sri Paritosh Mondal with a prayer for a direction to the OPs to regularize the said car parking space by obtaining completion certificate and revised plan in respect of the said car parking space or to refund back the entire consideration amount of Rs.2,50,000/- (Rupees two lakhs fifty thousand) only in respect of the said car parking space with statutory interest of 12% taken by him from the complainant, to pay Rs.5,00,000/- (Rupees five lakhs) only towards compensation for suffering of the complainant from prolonged harassment and mental pain and agony owing to wrongful acts of the OPs, to pay Rs.2,00,000/-
(Rupees two lakhs) only as the adequate exemplary cost of litigation to complainant.
OP No.1 is Smt. Manju Roy. She is the wife of Late Paritosh Kumar Roy.
OP No.2 is Smt. Tania Biswas @ Roy. She is the daughter of Late Paritosh Kumar Roy. OPs 1 and 2 are residing at 8/22, Bijoygarh, P.O.-Jadavpur University, P.S.-Jadavpur, Kolkata-700 032.
OP No.3 is Smt. Papia Mitra @ Roy, daughter of Late Paritosh Kumar Roy, residing at Nabagram, P.O.-Panchpota, P.S.-Sonarpur, Kolkata-700 152.
OP No.4 is Sri Ashim Kumar Roy. He is the son of Pramatha Nath Roy, residing at 8/22, Bijoygarh, P.O. – Jadavpur University, P.S.-Jadavpur, Kolkata-700 032.
OP No.5 is Manjuri. OP No.5 is a proprietorship firm, represented by its proprietor Sri Paritosh Mondal. The registered office is situated at Tetulberia, P.O.-Garia, P.S. – Sonarpur, Kolkaa-700 084.
OP No.6 is Sri Paritosh Mondal. He is the son of Sri Manik Mondal residing at Garia Natundiara, P.O.-Nayabad, P.S.-Sonarpur, Kolkata-700 150.
Complainant by filing this case states that a Deed of Conveyance was executed on 06.06.2018 and complainant purchased a self-contained flat from the Developer’s allocation, on the 3rd floor of G+III storied building which was constructed over land 6.2/3 decimals of land, equivalent to 4 (four) cottahs, 23 Sq.ft. comprising of several flats and car parking space on the basis of Development Agreement by OPs 1 to 4 and the Developer being premises No.596, Nabagram comprised in C.S. Dag No,106, R.S. Dag No.113, L.R. Dag No.113, R.S. Khatian No.319 in Mouza Kamarabad, J.L. No.41, P.O. – Panchpota, P.S.-Sonarpur, Kolkata-700 152.
The complainant also booked a car-parking space in the said building and the developer offered him a car parking space on the west corner portion of back side as depicted in the sanctioned plan on 06.06.2018. The complainant at a valuable consideration of Rs.2,50,000/- only from developer’s allocation purchased a car parking space, measuring about 120 Sq.ft. by virtue of Deed of Conveyance duly executed by the OPs and duly registered. Afterwards complainant was informed by the Developer that it was the South East Front side, instead of back West. Accordingly a rectification deed was executed and registered on 03.07.2019. But complainant was obstructed by flat owners as he went to park his four wheeler at the new site. The complainant was informed by the flat owners, that the South East from side was a common space. The developer assured complainant that the problem would be solved, but with no result. The complainant lodged a complaint to the Assistant Director, Department of Consumer Affairs. The new car parking space was not sanctioned by Rajpur Sonarpur Municipality.
Complainant was told that he would get the money back if the Revised Sanctioned Plan was not obtained. Neither the complainant received back the money nor the deed of conveyance in respect of the car parking place which was registered in the name of complainant because the deed of conveyance executed was not a valid one. OP No.6 practiced fraud upon the complainant. Finding no other alternative complainant lodged the complaint.
Complainant is a consumer. The cause of action arose on 06.06.2018 when the deed of conveyance was executed by the OPs in favour of complainant and on 08.09.2020 when CA & FBP advised complainant to lodge complaint and is continuing till date. Hence, complainant prays for directing the OPs to regularize the said car parking space by obtaining completion certificate and Revised Plan in respect of the said car parking space or to refund back the entire consideration amount of Rs.2,50,000/- only in respect of the said car parking space with statutory interest of 12% taken by him from the complainant through execution and registration of cancellation of the deed of conveyance, to pay Rs.5,00,000/- towards compensation for suffering of complainant from prolonged harassment and mental pain and agony owing to wrongful and detrimental acts of the OPs, to pay Rs.2,00,000/- as the adequate exemplary cost of litigation to complainant.
The case was filed on 31.08.2021. The case was admitted on 14.09.2021. Notices upon OPs 1, 2 and 4 have been served. OP No.3 refused to accept the notice. Refusal amounts to good service. Notice was not served upon OPs 5 and 6. On 17.11.2021, complainant was directed to publish the notice in the newspaper. Notice was published on 21.11.2021 in the ‘Aajkal’. None appears on behalf of the OPs 5 and 6. No W/V was filed by the OPs 1, 2, 3 and 4. By order dated 17.11.2021, the case proceeded exparte against OPs 1, 2, 3 and 4. On 22.12.2021 the case proceeded exparte against the OPs 5 and 6. Because OPs 5 and 6 did not turn up to contest the case. Argument was heard on 23.06.2022 and we proceeded for giving judgement.
Points of consideration
- Is the complainant, a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get reliefs as prayed for?
Decision with Reasons
1. On perusal of records and documents, it appears, that complainant purchased a flat along with a car parking space in G+III storied building on the basis of Development Agreement executed between OPs 1 to 4 (the landowner) and the Developer as per development Agreement being premises No.596, Nabagram, comprised in C.S. Dag No.106, R.S. Dag No.113, L.R. Dag No.113, R.S. Khatian No.319, in Mouza Kamarabad, J.L.No.41, Parganas – Madanmolla, P.O.-Panchpota, P.S. – Sonarpur, Kolkata-700 152 plot of land in Rs.S. Dag No,87 is to the North of the scheduled plot of complainant with car parking space. Plot of land in R.S. Dag No,113(P) is situated to the South of the scheduled plot. 16 feet-wide Municipal Road is situated to the East of the subject plot and plot of land in R.S. Dag no.112 is situated on the South of the scheduled plot. Complainant bought the car parking space in the subject plot, where he bought a flat. Complainant bought the car parking space with a valuable consideration of Rs.2,50,000/- (Rupees two lakhs and fifty thousand) only from the Developer’s allocation. The car parking space measured about 120 Sq. ft. The said car parking space was purchased by virtue of the Deed of Conveyance duly executed by the OPs for which the complainant paid the amount of consideration. As the complainant paid the entire consideration amount in respect of the subject car parking space, he is a consumer u/s 2(7) of the Consumer Protection Act, 2019. OPs did not turn up to contradict the aforementioned statement. So the 1st point is settled in favour of complainant.
2. The OPs (Developer) i.e. OPs 5 and 6, did not act following the rule. Complainant paid the full amount of consideration on 06.06.2018. He paid Rs.2,50,0000/- (Rupees two lakhs and fifty thousand) only, to the Developer, but complainant did not get his car parking space. As complainant, resides in the said building, he was desirous to buy car parking space in the same building, for which, he fulfilled all the formalities, OPs were deficient in rendering proper service to complainant. Complainant sold the car parking space situated to the West corner of the back side. Accordingly, the deed of conveyance was executed on 06.06.2018. Afterwards he was told that it was wrong, his car parking is situated at South-East-Front side. As a result, a deed of conveyance was executed on 03.07.2019. In fact, it was a common space used by the flat owners. Complainant failed to submit any sanctioned plan demarcating the new car parking space. In view of the above noted facts complainant was supposed to get back the price of the said car parking space through cancellation of the revised deed of conveyance. Complainant did not get the same. The developer (OP No.6) must be penalized for such unfair trade practice. The OP collected the money but complainant had to return with empty hand. Neither the complainant received back the money, nor he was handed over the car parking space. Hence, the 2nd point is settled in favour of complainant.
3. OP No.6 sold the 2nd car parking space knowing fully well that the space was not sanctioned by Rajpur Sonarpur Municipality. OP executed the revised Deed of Conveyance by suppressing the material fact, because they wanted to earn money at any cost. The complainant paid the amount of consideration to get the car parking space. Complainant failed to get the car parking space. Complainant failed to get the revised sanctioned plan and completion certificate in respect of the said car parking space. Complainant made valid payment, but failed to use the said car parking space. It appears that the said car parking space was sold to other purchasers. Hence complainant is entitled to get relief. The 3rd point is settled in favour of complainant.
In the result, the complaint case succeeds.
Hence, it is,
ORDERED
That the complaint case be and the same is hereby allowed exparte with cost of Rs. 25,000/- (Rupees twenty five thousand) against the O.Ps. 5 and 6.
That the O.Ps. jointly or severally are directed to regularize the said car parking space by obtaining completion certificate and revised plan in respect of the said car parking space and to hand over the same to the complainant.
Or
That the OPs 5 and 6 jointly or severally are directed to refund the entire consideration amount of Rs.2,50,000/- (Rupees two lakhs and fifty thousand) only with simple interest @10% p.a. w.e.f. 06.06.2018 in respect of the said car parking space to the complainant within 60 days from the date of this order.
That the OPs 5 and 6 jointly or severally are directed to pay compensation to the tune of Rs. 1,00,000/- (Rupees one lakh) only to complainant within the stipulated period of 60 days and the cost of litigation of Rs.25,000/- (Rupees twenty five thousand) is to be paid by the OPs 5 and 6 within the stipulated period of 60 days.
That the complainant is at liberty to put the order into execution is the orders are not complied with within the stipulated period of 60 days.
Let a copy of the order be supplied free of cost to the parties concerned.
That the Final order will be made available in www.confonet.nic.in .
Dictated and corrected by me
Sangita Paul
Member
