DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C.C Case NO: 239/2016
Date of Filing: Date of Admission Date of Disposal:
20.04.2016 28.04.2016 29.01.2018
Complainant = Vs. = O.Ps.
Rupak Chakraborty, 1. Smt. Sabita Pandit,
S/O Paramesh Ranjan Chakraborty, W/O Sri. Bhuban Pandit,
3rd floor, Type-G, Resi at: 242/A, Naskarpara Road,
Niladri Bhaban, P.O & P.S: Thakurpukur,
Ghoshpara Road,Ichapore, Kolkata-700082.
Kanthadhar, 2. Smt. Kamala Devi Jain
P.O: Ichapore-Nawabganj, W/O Sri. Manik Chand Jain,
P.S: Noapara, 134/4, M.G.Road,
Dist: North24 Parganas. P.S: Jorasanko,
Pin-743144. Kolkata-700007.
(Land owners).
3. Sri. Goutam Brahmacharya,
S/O Sri. Durgada Brahmacharya,
Ichapore Suryanagar,
P.O: Shyamnagar,
P.S: Noapara,
Dist: North 24 Parganas.
(Developer/Promoter).
P R E S E N T : Sri. Bankim Chandra Chattopadhyay …………. President
: Sri. Siddhartha Ganguli………………………………Member
: Smt. Silpi Majumder…………………………………..Member
Ld. Advocate for the Complainant: Sri. Debashis Malakar
Ld. Advocate for the O.Ps: Bibhas Mondal
Sri. Siddhartha Ganguli, Member
FINAL ORDER & JUDJEMENT
The complainant lodged this case U/S 12 of the C.P.Act,1986, r.w Sec-13 & 14 of the said Act, against the O.Ps alleging gross negligence, substantial deficiency in rendering services to the complainant and also for reliefs as prayed in the petition of complaint.
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The brief facts of the case is that the O.P No:3 is the promoter by profession and engaged in promoting and developing the land for the purpose of providing residential flats and commercial space to the customers or intending purchasers at large. The other O.Ps being No: 1 & 2 are the registered land owners of the suit property.
The complainant stated that the O.Ps had entered into an unregistered agreement for sale with the complainant 06.10.2004 for purchasing a flat of the complainant measuring about 810 sq.ft, being Flat No: G on the 3rd floor, which was being constructed on 1st Schedule property by the O.P No:3 being a developer/promoter, as stated in the agreement, under the name and style “Niladri Bhaban”, situated at Mouza: Ichapur, J.L No: 3, R.S: Dag No: 1838, under R.S Khatian No: 1468,within Municipal Limits of North Barrackpore Municipality, under Ward No:8, Holding No: 37(Old),37/1(New) Ghosh Para Road, Ichapur Kanthadhar, P.O: Nawabganj, P.S: Noapara, A.D.S.R.O Barrackpore, Dist: North 24 Parganas, for a consideration of Rs.6,07,500/. In the said agreement the O.P No: 3 made his signature as a constituent attorney of O.P No: 1 & 2.The complainant paid a sum of Rs.6, 08,000/ by way of cheque and cash on different dates.
The complainant stated that after payment of full consideration money as stated above, the O.Ps handed over possession to the complainant and the complainant is residing there. He got the electric connection in his own name.
It is the contention of the complainant that at the time of full payment the complainant requested the O.P No: 3 to handover the Xerox copy of the title deed, power of attorney, parcha, up to date Tax-receipt, sanctioned building plan, completion certificate, possession letter etc and for execution and registration of the flat in favor of the complainant and also requested the Ops to complete the pending works. The OP developer assured to provide all the above within a few days but later started avoiding the complainant.
The complainant sent a request letter to the O.Ps on 06.04.2011 and the O.Ps replied. The complainant thereafter sent a second request letter through his Ld. Advocate to the O.Ps but the O.P No: 1 & 2 refused to register the flat in question in favor of the complainant.
The main contention of the complainant is that though possession has been given by the O.Ps but they did not execute and register the deed of conveyance in respect of the flat of the complainant in his favor despite repeated requests and full payment. The O.Ps also did not provide the necessary documents as stated above to the complainant.
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The complainant further alleged that the O.Ps threatened him on various ways and deliberately, intentionally did not execute and register the deed of conveyance in favor of the complainant and as a result of which the complainant is suffering a lot and will be suffering throughout the days to come. The O.P landowners initially gave power of attorney to the O.P developer but subsequently they revoked the power by executing a deed of revocation. The O.Ps are contractually liable and responsible to obey the terms and conditions of the agreement and perform their part and due to their deficiency in service the complainant is suffering both physically and mentally.
The complainant stated that there was a great negligence on the part of the O.P developers in rendering service towards the complainant and the O.P developers have harassed the complainant and due to illegal act of the O.P developers the complainant suffered a lot and therefore the O.P developers should be dealt with heavy hands. The complainant suffered huge mentally and physically along with financial harassment due to the intentional, deliberate, and non performance of contractual obligation by the O.P developers and therefore files this petition and prays for compensation along with other reliefs as stated in the petition, which are reproduced below:-
Relief Sought For:-
- A decree for declaration that the O.Ps have no manner of right, title to disposes the complainant from the suit property legally and forcefully, otherwise then in due course of law.
- An order for directing the all O.Ps jointly or severally to execute and register the deed of conveyance in respect of the flat of the petitioner, which is specifically stated in the schedule of the complaint petition as well as per the agreement for sale dated 06.10.2004, being constructed on 1st schedule property as stated in the agreement, in favor of the complainant, in default the deed of conveyance may be registered through the Forum.
- That the O.Ps be directed to provide all Xerox copies of the title deed, power of attorney, Parcha, up to date tax receipt, sanctioned building plan, completion certificate, possession letter etc to the complainant.
- A decree for permanent injunction restraining the O.Ps and their men and agents from illegally and forcefully dispossessing the complainant from the suit property/flat without due process of law.
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- All costs of the proceeding
- All other relief/reliefs as the complainant are entitled to get as per law and equity.
The complainant files the following documents in to prove the case:-
- Copy of agreement for sale dated 06.10.2004.
- Copy of electricity bills.
- Copy of home loan documents.
- Copy of money receipts issued by United Combines, 7 in numbers.
- Copy of letter dated 06.04.2011 issued to the O.Ps by the
Purchasers of flats in Niladri Bhaban.
- Reply of letter by the O.P Landowners dated nil.
- Copy of advocate letter dated 04.06.2011.
- Copy of Advocate letter dated 28.07.2011.
- Copy of advocate letter dated Nil. Written by Ld. Adv. S.Panda.
- Copy of advocate letter dated 27.08.2011.
Notices were sent to the O.Ps. The O.P No: 1 & 2 appeared through their Ld. Advocate and filed their written version against the complaint petition. The Other O.P i.e O.P No: 3 did not turn up despite paper publication. Therefore, the case is being proceeded ex-parte against the O.P No: 3.
In the W/V the O.P No: 1 & 2 stated that they are the owners of the landed property lying and situated within North Barrackpore Municipality P.S: Nowapara, Mouza: Icchapur, J.L No: 3, Holding No: 37/1, Ward No: 8, within the district of North 24 Parganas, measuring about 11 Kottah 12 chittacks 19 sq.ft more or less and they being the landowners entrusted the same to the O.P No:3 for construction of the building and a development agreement was executed on 20.05.2003.It is further stated in the W/V that as per the development agreement the developer first complete and make over possession of the proposed building to the owners and Smt. Kamala Devi Jain shall get the possession of entire first floor of the said proposed building and Smt. Sabita Pandit shall get entire second floor of the said proposed building. The said development agreement provides that the said developer shall get ground, third, fourth and fifth floor of the said proposed building. The O.P No: 1 & 2 further stated that agreement was made by the complainant with the O.P developer and they knew nothing about that. They are not negligent and deficient in service to the complainant and no award/direction can be made against them and pays for dismissal of the case.
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The complainant and the O.P No: 1 & 2 files Evidence on 09.03.2017.
From the complaint petition, Evidence of the complainant and the O.Ps and other materials on record, the following points have been framed:
- Is the complainant a consumer?
- Are the O.Ps are deficient in providing services to the complainant as complained of?
- Is the complainant entitled to get any relief as prayed for?
Decision with Reasons
All the points are taken together for the sake of brevity and for avoidance of repetition of facts.
From the evidence adduced by the Complainant and O.P No: 1 & 2 and other materials on record it is found that the complainant and O.Ps had entered into an unregistered agreement for sale of a flat, measuring about 810sq.ft. on 06.10.2004, which is described in 2nd Schedule of the agreement and described in detail in schedule in the complaint petition, which was being constructed on 1st Schedule property as mentioned in the agreement after the development agreement was made with the land owners and O.P developer and the total consideration amount was fixed at Rs 6, 07,500/ and the complainant has paid Rs.6, 08,000/ in total and filed receipts. The documents show that the complainant has paid total Rs6, 08,000/.The said agreement for sale has been signed by the O.P No: 3, on behalf of himself and O.P No1 & 2 as the constituent attorney of the O.P land owners.
Therefore, the complainant is a consumer of the O.Ps as per the definition given U/s 2(1) (d) of the C.P Act, 1986.
It is further seen from the evidence and other materials on record that the complainant has paid consideration money for the flat amounting to Rs.5, 50,000/ to the O.P developers as per the terms of the agreement of sale ,and further paid Rs.34,000+Rs.24,000/= Rs.58,000/ for extra works, totaling Rs.6,08,000/ . The O.P developer handed over the possession of the flat to the complainant.
The construction of the building as well as the flat is not completed as yet as alleged by the complainant, but the complainant did not file any evidence regarding such or no local inspection or commission report has been filed by him and therefore we are unable to comment on that particular matter and no relief can be granted on that point.
Though the possession of the flat was given to the complainant but the O.Ps did not execute and register the deed of conveyance in respect of the flat of the complainant in his favor.
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The O.P landowners had given power of attorney to the O.P developer for development of their land and raising a multistory building on it. Subsequently they revoked the power of attorney.
The O.P developer also left the site of construction. The O.P landowners executed some other flats of the building to other purchasers after entering into fresh negotiations with them. They did not come forward voluntarily; rather the O.P landowners after exchange of advocate letters offered/ invited the present complainant to sit for fresh negotiation with them so that they would come forward for registration of the flat of the complainant. The O.P landowners owes a duty to execute and register the flat in question by virtue of the development agreement ,power of attorney given to the O.P developers as well as by virtue of the agreement for sale of the flat dated 06.10.2004. The O.P land owners also responsible to some extent as they got some share of money or otherwise from the Complainant indirectly through the O.P developers by virtue of the development agreement and agreement for sale.
It is further seen that that the O.Ps did not hand over the relevant documents such as completion certificate, possession certificate etc to the Complainant. The registration of the flat is still pending and the O.Ps did not take any initiative to do the same. Several years have elapsed after the term of the agreement but the O.Ps remained silent over the matters as agitated by the complainant. Therefore, we hold the view that the O.Ps are deficient in service and the complainant is entitled to get relief.
In view of the above discussion we are of the view that the complainant is a consumer and the O.Ps are deficient in service towards the complainant and therefore the complainant is entitled to get relief as prayed for but in part.
Further it is seen that the O.Ps failed to perform all such contractual obligations even after elapsing several years from the date of agreement. The complainant has to bear the sufferings for all these years due to the O.Ps. The O.P landowners did not show any interest to get the registration of the flat of the complainant, but they showed their interest in having a fresh negotiation with the complainant. Hence, we hold the view that all the O.Ps are not only deficient but also negligent in providing service and they should pay compensation to the complainant.
Regarding the quantum of compensation and litigation cost we think that an amount of Rs.20,000/ and Rs.5,000/ respectively are fit and commensurate in respect of the instant case for the sufferings, harassment, mental agony etc. and the O.Ps are required to pay the same.
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All the points thus discussed and disposed of in favor of the complainant. Therefore, the case of the complainant is succeeded but in part.
Hence
It is ordered that the Consumer Complaint, being No: CC- 239 of 2016 is allowed on contest against O.P No: 1 & 2 and ex-parte against the O.P No: 3 with cost.
All the O.Ps are jointly and severally directed to hand over the completion certificate, sanctioned building plan, possession certificate, copy of parcha, chain deeds, tax receipts etc. and other documents in respect of the flat/building/land in question and any other documents which are required for the purpose of registration to the complainant within two months from the date of this order.
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All the O.Ps are further jointly and severally directed to clear the tax and rent of the building till the date of receiving the completion certificate from the Municipality concerned.
All the O.Ps are jointly and severally directed to execute and register the deed of conveyance in respect of the flat in question, as mentioned in the schedule of the agreement as well as in the complaint petition, in favor of the complainant within two months from the date of this order, after taking the balance consideration amount of Rs.57, 500/ from the complainant.
The complainant is also directed to pay Rs.57, 500/ to the O.P developer as balance consideration amount before registration.
The O.Ps are further jointly and severally directed to pay compensation and litigation cost of Rs.20, 000/ and Rs 5, 000/ respectively to the complainant within two months from the date of this order.
In default of any portion of this order the complainant may put the order under execution by filing an execution application as per the provisions of the C.P Act,1986 and may seek for execution and registration of the flat in question be done through the intervention of the Forum by appointing any commissioner.
Let free copies be given to the parties concerned.
Member Member President
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Member
