DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _422_ OF ___2015_
DATE OF FILING : 17.9.2015 DATE OF PASSING JUDGEMENT: 24/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : 1. Anupurbha Naskar,w/o late Gopal Naskar
- Kathakali Naskar
- Anushka Naskar
Both minor daughters of late Gopal Naskar alias Bratindra Kumar Naskar, represented by their mother Anuprabha Naskar , all of 1/12, Dover Place, Kolkata – 19, P.S. Gariahart.
-VERSUS -
O.P/O.Ps : Smt. Sonali Guha, Prop. Of M/s S.G Constructiuon of 64/2C, Bose Pukur Road, Kolkata – 42, P.S Kasba , and also at 4A/11, Dharmatala Road, Kolkata-42, P.S. Kasba.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that the husband of complainant no.1 and father of complainant nos. 2 and 3 entered into an agreement for purchasing a flat from the O.Ps which is a Proprietorship Firm in the name and style M.S S.G Construction on 6.3.2011 for purchasing a flat on the top floor i.e 3rd floor South West facing having an area 840 sq.ft super built up area approx having two bed rooms, one drawing cum dining room, one kitchen, one toilet , one W.C and one balcony along with undivided proportionate impartible share of the land lying and situated at premises no.191, Laskarhat , Kolkata – 39 within the limits of K.M.C at a consideration of Rs.10 lac out of which Rs.2 lac was paid as an earnest money at the time of execution of the agreement for sale . After that Gopal Naskar, since deceased, husband of complainant no.1 had paid full amount of consideration money . Although O.P assured to the husband of the complainant no.1 that possession of the said flat shall be handed over within 12 months from the date of signing of the agreement for sale , the O.P failed and neglected to hand over possession of the flat in question inspite of several requests made by Gopal Naskar. Ultimately Gopal Naskar, husband of the complainant no.1 and father of the complainant nos. 2 and 3 died on 30.12.2014 ,leaving behind complainant no.1 ,wife, complainant nos. 2 and 3 as minor daughters. But the O.P did not hand over possession of the said flat inspite of several request made by the complainants also. Hence, this case praying for handing over possession of 840 sq.ft flat , to pay compensation of Rs.2 lacs, cost Rs.25000/-, alternative to refund the amount of Rs.10 lacs along with 12 % interest from June 2011 etc.
The O.P contested the case by filing written version and stereotype claims that the case is not maintainable either in law or in facts and also claims that it is a civil dispute and this Forum has no jurisdiction to entertain the case and it will be decided in the Specific Performance of Contract and Specific Relief Act. The O.P denied all the claims mentioned in paragraph 3 to 21 of the complainant and claims that no document is filed to substantiate that Gopal Naskar and Bratindra Naskar is the same person for which complainants have no locus standi to contest this case and complainant is not a consumer and prays that the act of the O.P is not falling under the deficiency of service and unfair trade practice which mentioned in paragraph 3 of the case. It has also stated that O.Ps are not liable to pay any amount of Rs.17,05,000/-.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
We have perused the written objection filed by the O.P and must have to say that this Bench is having territorial jurisdiction since this Forum has transferred on 13.10.2015 as per Notification of the Government from Alipore to Baruipur and it was also decided that no retrospective effect will be given to withdraw the case and if parties wanted to withdraw the case ,then the same will be withdrawn from the file of South 24-Parganas Forum . But herein no such application was filed before the Hon’ble State Commission for withdrawal of the case and the date of filing of the case is 17.9.2015 ,when this Forum was functioning at Alipore and soon after transfer to Baruipur on 13.10.2015 this bench had or have jurisdiction to adjudicate the case on the ground that parties have not filed any application for transfer of this case.
So, that question is go-bye as claimed by the O.P.
The further point as raised in the written version of the O.P is that complainants are not the consumers. But we strongly determined that complainants are consumers as a legal heirs of deceased Gopal Naskar being the wife and children. So, when the O.Ps have challenged the same, it is well-known to us that the person who challenged the same , onus is upon him or her to prove the same. But no such prayer was filed in this regard that these complainants are not legal heirs of deceased Gopal Naskar .
We have perused the agreement for sale and we find that signature of Gopal Naskar and witness along with Sonali Guha , who is Proprietor of S.G Construction are appearing. The complainant has claimed that they are the legal heirs of late Gopal Naskar and for abundant precaution complainant being the legal heirs have mentioned that Gopal Naskar and Bratindra Kumar Naskar are same and identical person. May be, Bratindra Kumar Naskar is the alternative name of Gopal Naskar but that question is not considred by this Bench ,because agreement for sale clearly demonstrates that Gopal Naskar ,son of late Saradindu Naskare residing at 1/12, Dover Lane, Under P.S. Gariahat formerly Ballygunge, Kolkata – 19 refereed to as the purchaser. So, Gopal Naskar ,since deceased, may be , had an alternative name Bratindra, but that dispute is not considered, particularly when all the money receipts were issued by the O.P in the name of Gopal Naskar and now challenging that aspect O.P tried to mis-direct this Bench ,which cannot be entertained. Here the dispute is consumer dispute not the dispute of an identical person. So, the averment as mentioned is attractive but no substance in the eye of Law, particularly when this bench will see the deficiency of service or unfair trade practice. It may be mentioned here that agreement for sale was not signed by Bratindra Kumar Naskar as claimed by the O.P in para 10 rightly ,because Gopal Naskare used to put his signature as Gopal Naskar not Bratindra Kumar Naskar , Bratindra Kumar Naskar may be alternative name of Gopal Naskar. So, the legal heirs of Gopal Naskar are not aware about filing the case, for which, for abundant precaution the alternative name of their husband and father , as the case may be, are mentioned here , which is not fatal .
Here, we find that O.P has accepted Rs.10 lacs as per agreement for sale during the lifetime of Gopal Naskar. In clause 24 it has mentioned specifically that “If the purchaser intends not to complete the purchase within the stipulated period , the developer may with the approval in writing from the purchaser assigned the agreement to any intending purchaser or purchasers within 12 months from that date and in that event that developer shall pay Rs.15 lacs only for such assignment to the purchaser. Thus, there is a penal clause mentioned in clause no.24 of the agreement for sale. Thus the validity of the agreement is mentioned in clause no.22 as 12 months from the date of signing of the agreement and it has specifically mention that developer/owner shall hand over the said flat within the said period to the purchaser ,subject to making full payment by the purchaser to the developer and subject to furnishing completion certificate from the KMC by the developer in respect of the said flat and car parking space. But in the second schedule car parking space was not mentioned. So, herein we have concerned only the flat of 840 sq.ft in the 3rd floor (top floor) having two bed rooms, one drawing cum dining room, one kitchen, one toilet, one W.C and one balcony along with undivided proportionate impartible share as mentioned in the schedule of the agreement for sale.
We find that agreement was made on 6th day of March, 2011. Thus 12 months will be calculated from that date i.e March 2011. From the money receipts it appears that Gopal Naskar paid entire money. It is true that last payment is made in the month of May, 2011 . It appears that Gopal Naskar paid entire money within 12 months and thus Gopal Naskar has performed his part casted in the agreement for sale. It is well-known to us that no one can deviate from the agreement for sale and parties are binding by the agreement for sale in view of the decision of the Hon’ble National Commission as well as Hon’ble Supreme Court. Thus we find that developer did not comply the terms of the agreement for sale strictly and after grabbing the entire consideration money failed to hand over the said flat within 12 months from that date as well as failed to furnish completion certificate. Thus the O.P/developer is bound to refund Rs.15 lacs in terms of Clause 24 of the Agreement for sale page 16. So, at this stage we need not require any discussion further. Since the developer failed to comply or perform their part ,cannot misdirect the bench in other way. The complainant are the consumers being the legal heirs who stepped into the shoes of Gopal Naskar ,since deceased. The production of money receipts, agreement for sale etc. clearly substantiate that complainants are legal heirs ,otherwise how those documents are in custody of the complainants.
In view of the Judgment reported in AIR 1994 Supreme Court page 786 it has clearly mentioned that “ The provisions of the Act have been constituted in favour of the consumer to achieve the purpose of enactment, as it is a social benefit oriented legislation”. Hon’ble Supreme Court was not stopped saying that ,but also said “ the primary duty of the Court while construing the provisions of such Act is to adopt the constructive approach subject to that it should not do violations to the language of the provisions and is not contra to attempted the object of enactment”.
Here, in the instant case we find that O.P from the date of filing the written version wanted to misdirect the bench by saying all these things. So, it is a mandate of the Highest Court of India . Thus the same is binding by all. It is also mentioned here in this connection the observation of the Hon’ble National Commission, New Delhi reported in 2016(2) CPR page 33, wherein Hon’ble National Commission has observed that “ Unscrupulous builders who after taking substantial cost of apartment does not perform their part of obligation should not be spared”. Here, in the instant case we find that O.P Builder has already taken substantial amount i.e the full amount of consideration within the time of one year and thereafter did not comply their part by delivery of possession , completion certificate etc. etc. and it is sorry to say that complainant Gopal Naskar died on 30.12.2014 and on mathematical calculation the flat should be delivered within March, 2012 as per agreement but still two years Gopal Naskar tried to get the shelter of their family members, but failed and lastly died. We are sorry to say, how this O.P being a developer challenged the heirship of the complainants? Is she one of the legal heirs of Gopal Naskar? She (the O.P) should bear in mind that if any interested person being legal heirs as per Hindu Succession Act deprived after the death of anybody, then and then only that person can challenge in an appropriate court, not the O.P, Sonali Guha, the Proprietor of S.G Construction. She at best can enquire the matter from local Councilor or the localities but without doing the same unnecessary harassing the unfortunate legal heirs who came before this Bench for fulfilling the dream of heir husband and father, as the case may be, for which we have to say that O.P/developer has acted deficiency of service and she should not be spared in any moment being an unscrupulous developer in view of the observation of the Hon’ble National Commission ,since this Act has been passed in order to protect the consumer at large not the O.Ps. But if it is vexatious then and then O.P will get benefit in view of Section 26 of the C.P Act, not before that.
In fine, one thing should be aware why the Consumerism conceptual consideration was considered and on that score it should be mentioned here that Mahatma Gandhi ,the Father of the Nation attached great importance to what described as “ Poor Consumer” who according to him should be the beneficiary of the consumer movement. He said: “A consumer is the most important visitor on our premises. He is not dependant on us. We are on him. He is not the interruption to our work; he is the purpose of it. We are not doing a favour of a consumer by serving him . He is doing us favour by giving a opportunity to serve him”.
With that observation, it is
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
The O.P is directed to hand over the agreed flat as per prayer (a) of the complaint petition in toto and to execute and register the deed of conveyance in favour of the complainant and also directed to pay compensation to the tune of Rs.2 lacs , because if we reduce the amount of compensation then in case of refund of money complainant will only get Rs.15 lacs in terms of the agreement but that Rs.15 lacs was required to be paid by the O.P after March 2012 and we have reached already almost half of 2017 ,for which interest should be considered.
The litigation cost will be Rs.10,000/- which will be paid by the developer/O.P within 45 days from the date of this order, failing which as per prayer (d) of the complaint case, developer is hereby directed to refund as per agreement Rs.15 lacs and Rs.2 lacs compensation and Rs.10,000/- towards cost within 30 days thereafter and this the complainant will get satisfied at least the money invested by their husband and father recovered with interest from the Court of Law and it would also be a message to the complainant that Consumer Forum also shared firstly the pain and suffering of Gopal Naskar ,since deceased by not getting the flat inspite of making payment in time .
It is also mentioned here that if the flat is handed over with habitable condition, then developer has to hand over the completion certificate from KMC and arrange for registration within 45 days from the date of this order, failing which complainant is at liberty to approach before this Bench for registration of the flat through the machinery of the Forum .
It is also directed that if the O.P developer failed to comply the above order ,event the alternative order of refund ,then complainant is at liberty to approach this bench for redressal.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
The O.P is directed to hand over the agreed flat as per prayer (a) of the complaint petition in toto and to execute and register the deed of conveyance in favour of the complainant and also directed to pay compensation to the tune of Rs.2 lacs , because if we reduce the amount of compensation then in case of refund of money complainant will only get Rs.15 lacs in terms of the agreement but that Rs.15 lacs was required to be paid by the O.P after March 2012 and we have reached already almost half of 2017 ,for which interest should be considered.
The litigation cost will be Rs.10,000/- which will be paid by the developer/O.P within 45 days from the date of this order, failing which as per prayer (d) of the complaint case, developer is hereby directed to refund as per agreement Rs.15 lacs and Rs.2 lacs compensation and Rs.10,000/- towards cost within 30 days thereafter and this the complainant will get satisfied at least the money invested by their husband and father recovered with interest from the Court of Law and it would also be a message to the complainant that Consumer Forum also shared firstly the pain and suffering of Gopal Naskar ,since deceased by not getting the flat inspite of making payment in time .
It is also mentioned here that if the flat is handed over with habitable condition, then developer has to hand over the completion certificate from KMC and arrange for registration within 45 days from the date of this order, failing which complainant is at liberty to approach before this Bench for registration of the flat through the machinery of the Forum .
It is also directed that if the O.P developer failed to comply the above order ,event the alternative order of refund ,then complainant is at liberty to approach this bench for redressal.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member President
