West Bengal

Siliguri

CC/93/2018

MISS PRITEE SINCHURY - Complainant(s)

Versus

SMT. NITI KUMARI - Opp.Party(s)

18 Mar 2021

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AT SILIGURI.

CONSUMER CASE NO. 93/S/2018.                    DATE OF FILING: 28-08-2018.

BEFORE  PRESIDENT              : SRI KANHAIYA  PRASAD SHAH

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

 

 

                      MEMBERS              : SRI TAPAN KUMAR BARMAN &

                                                              MALLIKA SAMADDER.

                                                           

 

COMPLAINANT             : Miss Pritee Sinchury,

 D/o- Shri Kishor Kumar Sinchury,

 Permanent R/o- Dara Gaon,

 Purba Phuguri Tea Garden,

 P.O.- Phuguri, P.S.- Mirik, Dist.- Darjeeling.

                                                                          

O.Ps.                  1.                : Smt. Niti Kumari,

  D/o- Late Shailendra Kumar Srivastav & wife of

  Shri Manish Lal, R/o- Sardar Paradise, Salbari,

  P.O.- Sukna, P.S.- Matigara, Dist.- Darjeeling-734009.

 

                                         2.                : Shri Manish Lal,

  S/o- late Priyanjan Roy, R/o- Sardar Paradise, Salbari,

  P.O.- Sukna, P.S.- Matigara, Dist.- Darjeeling-734009.

 

   3.                  : Shri Hari Sharma, S/o- Late Gobind Prasad Sharma,

  R/o- Salbari near Asha Kendra School.

  P.O.- Methibari, P.S.- Matigara, Dist.- Darjeeling- 734001.

 

                                        4.                 : Smt. Prem Sharma, W/o- Late B.R. Sharma,

  Resident of Methibari, near Godwin School,

 Vishnu Road, P.O.- Sukna, P.S.- Matigara,

  Dist.- Darjeeling- 734009.

                                                                                                                                                                                                                                                      

FOR THE COMPLAINANT         : Janmejay Ganguly, Advocate.

   FINAL ORDER/JUDGEMENT

                                                                                            Date: 18-03-2021.

 

                   Facts of the complaint in short :-

Complainant’s case as alleged in short is that she is a resident of Dara Goan, Purba Phuguri Tea Garden P.O. Phuguri P.S. Mirik. The complainant’s mother works at domestic help in Israel with other domestic help workers. All them meet in an apartment after their duty and in course of discussions complainant’s mother in the year 2015 desired to purchase a residential flat at Salbari and wanted to know whether any of her friend has idea about sale of such flats.  Later from Miss Sharmila Dorji who also works there and was there in Israel told that she knew one Harish Sharma i.e. OP No. 3 who is resident of  Dr. Nandlal Thapa road, at Salbari under Pradhannagar PS in Siliguri

Contd….P/2.

-:2:-

 

who deals in matters of lands and providing residential flats. Other domestic help of Siliguri and of adjoining places also works in Israel and said Ms. Sharmila Dorji told that she has bought one piece of land from said Hari Sharma.

Thereafter complainant’s mother told complainant (i.e. her daughter) to contact said Hari Sharma for purchase of a residential flat in an around Salbari area and also furnished contact details. Thereafter complainant and her father contacted said Hari Sharma in month of April, 2016 and enquired for availability of any residential flat in and around Salbari side. After hearing this the OP No. 3 informed that one residential apartment was going to be constructed at Salbari side by one Manish Lal i.e. OP No. 2 who is a reputed builder and the land on which apartment will be constructed belongs to one Smt. Prema Sharma i.e. OP No. 4.

Thereafter the OP No. 3 introduced the complainant with OP No. 2 and OP no. 2 told that a residential flat is going to be constructed by virtue of a development agreement executed and registered in between his wife Smt. Niti Kumari i.e. OP No. 1 and Smt. Prema Sharma i.e. OP no. 4. Thereafter complainant on belief for construction of residential flat agreed to purchase a 3 BHK flat on the 2^nd floor of the proposed residential apartment at a sale consideration of Rs.17,00,000/- and paid an advance sum of Rs. 1,00,000/- by cheque which was received by OP no. 3 and OP No. 2 on 25.05.2016.

It is further case of complainant that thereafter a deed of agreement for sale of a flat was signed in between complainant and Smt. Nita Kumari i.e. OP. no. 1 and was duly Notarized on 30.08.2016/. Thereafter complainant further paid sum of Rs. 1,00,000/- by cheque to OP no. 3 & 2 on 16.07.2016 as further advance payment. Thereafter complainant continued to pay sum of Rs 60,000/- on 31.08.2016 and Rs. 70,000/- on 17.09.2016 by cheque received by OP no. 2. Thereafter complainant further paid amounts on different dates amounting to Rs.6,10,000/- in total till 13.12.2016 as advance payment.

It is further case of the complainant that OP no. 1 with her husband OP no. 2 started the construction of the said residential building on and from January 2017 and after erection of some pillars the OP No. 2 suddenly stop the construction work and when complainant wanted to know the reason from OP No. 2 then he informed that some dispute has crept in between him and OP No. 4 regarding allotment of their respective shares. The OP No. 2 assured the complainant that dispute shall be resolve very soon and construction work should be restarted but a long period passed and construction work not started and during these periods complainant and her family members were visiting houses of OPs on regular basis but Ops did not start the construction

Contd….P/3.

-:3:-

 

again which caused mental harassment to complainant for her no fault. 

It is further case of the complainant that as per sale agreement OP was to hand over possession of the premises within February, 2018 but it was not done, so complainant found that she has been cheated though her mother has paid the aforesaid money by working as a domestic help. There are deficiencies in service on the part of all the Ops.

 At last having no alternative this complaint has been filed with prayer to complete the building and hand over the residential flat to complainant after doing registration works on payment of balance amount. Further compensation of Rs.1,00,000/- for mental harassment and deficiency in service and litigation cost of Rs. 50,000/- with other reliefs. In support of complaint the complainant has filed copies of sale agreement, money receipt and development agreement.

At initial stage on date fixed for admission the complainant did not turn up and the case was dismissed for non prosecution and thereafter complainant preferred Revision before the Hon’ble State Commission which was allowed. Thereafter case was restored. The Hon’ble State Commission pleased to direct that complaint was admitted on merit. The OP no. 1 & 2 were directed to file their written versions within 45 days from the day after collecting copies of the notices from the Forum and case was remanded back to the Forum to issue notices upon OP No. 3 & 4 by giving opportunities to the parties to place their case before Forum.

After receipt of the order the notices were issued upon the OPs and OP No. 1 & 2 were also directed to collect the notices from the Forum. It appears from the record that OP no.1 & 2 appeared and when OP No. 1 & 2 did not comply the order of Hon’ble State Commission then they were directed vide order 05.12.2019 to comply the same. Thereafter on 16.12.2019 a petition was filed by OP No. 1 & 2 to allow them time and later written version filed was accepted. The service return upon OP No. 3 & 4 came with endorsement refused and it was treated as service and date was fixed for filing written version by OP No. 3 & 4 but OP No. 3 & 4 did not turn up.

The OP No. 1 & 2 in their written version have denied material allegations. It is their defense that after starting of the construction works the land lady i.e. OP No. 4 suddenly revoke the power of attorney which she executed for construction of the building and forcefully stopped the construction works, as such OP No. 1 & 2 became unable to complete the project. The revocation of power is unlawful. The OP No. 1 & 2  are trying to negotiate  with

Contd….P/4.

-:4:-

 

OP no. 3 & 4 but with no good result. These two Ops are ready to complete the project, if OP No. 3 & 4 co-operate with them. The Op No. 1 & 2 are reputed business persons and they offer their best services to their customers. The harassment of complainant is only due to non cooperation on the part of OP no. 4. Though they are ready to complete the project and hand over the flat to intending purchasers.

It is further defense of OP No. 1 & 2 that there is no deficiency in service on their part whatever harassment, mental pain and agony of complainant and her family member have occurred due to non cooperation of OP No. 3 & 4, so OP No. 1 & 2 are not liable in any way. Further the OP No. 1 & 2 have already incurred huge amounts in the project and if OP No. 3 & 4 do not allow them then OP no. 1 & 2 will face huge monetary loss and will lost their good will in the business. The OP No. 3 & 4 have intentionally not appeared before the Hon’ble State Commission as well as before this Forum. On the other hand OP has prayed to pass necessary direction to the OP No. 3 & 4 to execute a fresh power of attorney in favour of OP no. 1, so that OP No. 1 will complete the project and hand over the flat to complainant’s mother.  

POINTS FOR CONSIDERATIONS

Upon considerations of complaint and written version and documents filed following points are required to be considered.

1. Is the complainant a consumer under C.P. Act?
2. Is the complaint maintainable?
3. Is there any deficiency of service or negligence on the part of OPs as alleged?
4. Is the complainant entitled for the relief or reliefs as prayed for?

 

DECISION WITH REASONS

All these points are taken up for discussions together as each are inter related.

From the complaint written version and evidence of both sides, it is clear that complainant has entered into an agreement of sale of residential flat with OP No. 1 and the amount paid by complainant as advance amounting to Rs. 6,10,000/- out of Rs. 17,00,000/- have been received by OP No. 2 and also OP no. 3. Agreement for sale has been annexed as exhibit -2 with and money receipt. Thus as per definition of Consumer as provided under C.P. Act, the complainant is a consumer as she has paid money to buy flat.

Contd….P/5.

-:5:-

 

 So far as maintainability is considered, last money receipt by OP No. 2 & 3 is on 13.12.2016 and thereafter assurance has been given for construction of the flat but it was stopped in 2017 and as per terms of sale agreement flat in question was to be provided within February, 2018, so filing of the complaint on 28.08.2018 is well within the time and is maintainable.

Now let us consider the allegations and counter allegations. From the exhibit-1 which is a development agreement dt. 08.08.2016, it appears the said agreement is in between OP No. 4 being the land owner on and OP No. 1 being developer on the other hand. There are several terms and conditions in the said development agreement which is binding in between OP No. 1 & 4. Secondly, the deed of agreement for sale notarized on 30.08.2016 is in between complainant as first party purchaser on one part and OP No. 1 as vendor 2^nd party on other part. This has not been executed with OP No. 4, i.e. tripartite agreement, so whatever terms and conditions are binding in between complainant and OP No. 1 are binding.

As per money receipt it appears on 25.05.2016 OP No. 3 issued it to complainant and OP No. 3 has received Rs. 1,00,000/- by cheque of SBI. Thereafter on 16.07.2016 the OP no. 3 has received cheque of Rs. 1,00,000/- each cheque containing amount of Rs.50,000/- and this receipt has been signed by OP No. 2 also. Thereafter OP no. 2 has received a cheques of Rs. 60,000/- on 31.08.2016 and a cheque of Rs. 70,000/- on 17.09.2016 and further of Rs. 70,000/- and another cheque of Rs. 70,000/- on 20.11.2016 and further cheque of Rs. 70,000/- on 29.11.2016 and further cheque of Rs. 70,000/- on 13.12.2016.

Thus as alleged the total amount is Rs. 6,10,000/- which have been received by OP No. 2 & 3, as advance money for sale of flat to the complainant. The OP No. 2 is husband of OP No. 1 and do all works of OP No. 1 regarding construction of flat and receipt of money and OP No. 3 is associated with OP No. 2 as such whatever liability would occur would go with the OP no. 1, 2 & 3.

The OP No. 1 & 2 in his written version and evidence nowhere have disputed the receipt amount of Rs. 6,10,000/- and nowhere have agreed to return the said amount to the complaint due to non fulfillment of construction works rather they have sought direction from this Commission upon OP No. 4 to execute fresh power of attorney in favour of OP no. 1 to complete the project. Thus by this way they have tried to shift their burden upon the commission. This commission consider that when deed of sale agreement has been executed in between complainant and OP No. 1 and OP No. 2 & 3 have received the money as advance on behalf of OP No.1, then it is their duty as to how they will complete the project and had over the flat in question to the complainant and if

Contd….P/6.

-:6:-

 

they fail to discharge their own duties then certainly there is deficiency in their services. Whatever dispute as arose in between OP No. 1 and OP no. 4 is not binding upon complainant.

In this case the complainant has sought a direction upon the Ops for earliest completion of the building and handing over the residential flat to complainant on  receipt of balance amount on registration of the deed but it seems that in the forgoing disputes this is not appearing possible form the side of Ops to complete the construction in such a situation the Ops are bound to return the advance money with interest and also to pay compensation to the complainant with litigation costs for their deficiency in services. This Commission can’t pass direction upon OP no.4 to execute fresh power of attorney to complete the construction by OP Nos. 1 & 2 because she is not a party to develop agreement in between complainant and OP no.1.

Thus complainant has been able to prove that there is deficiency in services on the part of OP nos. 1, 2 & 3 and complainant is entitled for part relief in this case.

All the points are considered and decided, as such the complaint succeeds in part.

Hence, it is ordered,

That complaint case C.C. 93 (S) of 2018 is allowed on contest against OP no. 1 & 2 and ex-parte against OP No. 3 with costs but dismissed against OP no.4. The complainant is entitled for return of her advance money amounting to Rs. 6,10,000/- with an interest @ 10% per annum since the last payment date of money i.e. since 13.12.2016 till the date of its realization.

The complainant shall be further entitled for compensation of Rs. 1,00,000/- for mental harassment and deficiency in services from the sides of OP no. 1, 2 & 3 and a litigation cost of Rs. 30,000/- from the OP no. 1, 2 & 3.

The OPs no. 1, 2 & 3 are jointly and severally directed to pay the above mentioned amount to the complainant within 45 days from the date of this order failing which the complainant shall be entitled for further interest @ 12 % thereafter on Rs. 1,30,000/- till the date of realization.

In default the complainant shall be entitled to execute the order as per law.

Let a copy of this judgment/final order be given to the parties free of cost at once.