DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT
CC- 420/2016
Date of Filing: Date of Admission:- Date of Disposal:
30.06.2016 11.07.2016 14.06.2019
Complainants :- 1. SMT. KUSUM PANDEY
Wife of Sri Amar Nath Pandey
2. SRI ANKIT PANDEY
S/o Sri Amar Nath Pandey
No.1&2 both are presently residing at
36, Chawl Patty Road, 2nd Floor
P.S.-Baguiati, Kolkata-700 059.
=Vs=
Opposite Parties :- 1. SRI AMIT MITRA
S/o Late Nirmal Kumar Mitra
2. SRI PINAKI MITRA
S/o Late Nirmal Kumar Mitra
3. SMT. TAPASHI GUHA
Wife of Sri Partha Guha,
D/o Late Nirmal Kumar Mitra
All are residing at
779/B, Gouri Nath Sastri Sarani
P.S.-Dum Dum, Kolkata-700055
Dist-North 24 Parganas,
all are represented by their constituted attorney
Sri Pradip Dey, S/o Sri Amal Dey,
residing at 68/129, Jessore Road, Amarpally
P.S.-Dum Dum, Kolkata-700074 by virtue of a Registered General Power of Attorney executed
on 20.01.2012, registered in the Office of Additional District Sub-Registrar Cossipore
Dum Dum, North 24 Parganas and recorded in Book No.IV, CD Volume No.1, Page No.1008 to 1018, Being No.103 for the year 2012.
4. SRI PRADIP KUMAR DEY
S/o Sri Amal Dey, Residing at
68/129, Jessore Road, Amarpally
P.S.-Dum Dum, Kolkata-700074.
P R E S E N T :- Sri Lakshmi Kanta Das………………….…………..…..President.
:- Smt. Monisha Shaw ……………………….…………….Member.
Contd……….P/2
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CC- 420/2016
Judgment
This complaint is filed by the Complainants u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.
The brief fact of the complaint is that the Complainants wanted to purchase piece and parcel of Bastu Land measuring about 2325 sq.ft. More or less together with the multistoried building standing thereon, lying and situated at Mouza-Shyamnagar formerly Krishnapur, J.L. No.-32/20, R.S.No.-180, Touze No.-228/229, comprised in C.S. Dag No.-1458, 1442 and 1459, under R.s. Dag No.-590, 591 appertaining to C.S. Khatian No.-112, under R.S. Khatian No.-92 being Municipal Holding No.320 & 505, Shyamnagar Road, Kolkata-700055, within the Jurisdiction of Dum Dum Police Station, within the local limit of South Dum Dum Municipality in Ward No.27 in the District at North 24 Parganas originally belongs to Opposite Parties 1,2&3 who inherited 1/3rd undivided share as per Hindu Law of Succession Act, 1956 to the aforesaid property.
The Complainants stated that the Opposite Party Nos.1&2 being Vendors/First parties entered into an Development Agreement on 20.01.2012 with the present OP No.4 being the Developer with the view to develop the aforesaid land by constructing a multistoried building consisting of flats, garage as per plan and specification purpose to be sanctioned by the South Dum Dum Municipality. The OP Nos.1,2,&3 duly empowered the OP No.4 to sue or to defend and/or to prosecute all acts and deeds in respect of the aforesaid property by executing a registered General Power of Attorney executed on 20.01.2012, registered in the office of Additional District Sub-register at Cossipore, Dum Dum recorded book no.-IV, CD Volume No.-1, Page No.-1008 to 1018, being No.-103 for the year 2012.
The Complainants further stated that the OP No.4 being duly authroised agent of the OP Nos.1&2 obtained a building plan from the South Dum Dum Municipality after compliance of all legal formalities vide plan no.-695 dated 13.03.2014. According to development agreement the OP No.4 constructed a multistoried building over the property as stated above as per plan no.-695 dated 13.03.2014.
The Complainants further stated that the Complainants entered into an agreement for sale with the OP on 16.01.2015 for purchasing one self-contained residential flat no.-6 on the first floor, North West side measuring about 650 sq.ft. more or less consisting of two bedrooms, on living-cum-dining space, one open kitchen, one toilet, one balcony of the said multistoried building with the considering money of Rs.17,75,000/- (Rupees seventeen lac seventy five thousand)
Contd……….P/3
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CC- 420/2016
only out of which the Complainants paid Rs.2,66,250/- (Rupees two lac sixty six thousand two hundred fifty) only by two a/c payee cheques vide no.-309900 dated 01.01.2015 drawn on S.B.I., Baguihati Branch and cheque no.525834 dated 16.02.2015 drawn on S.B.I., Baguihati Branch.
The Complainants stated that due to paucity of fund both the Complainants were not in a position to materialize their object as per agreement dated 16.01.2015 and finding no other alternative both the Complainants co-jointly applied for financial help on 18.03.2015 before the Bank of India at 2nd Floor, DD2 Sector, Salt Lake, Kolkata-700064 and the said Bank sanctioned a short term House Building Loan of Rs.15,08,000/- (Rupees fifteen lac eight thousand) only against equitable mortgage of the property mentioned in the 2nd schedule on condition that borrowers would pay the principal and interest amount payable by 192 EMI of Rs.15,961/- (Rupees fifteen thousand nine hundred sixty one) each.
The Complainant got the agreement for sale registered on 27.03.2015 in the Office of Additional District Sub-Register Cossipore, Dum Dum, North 24 Parganas being deed no.-3210 for the year 2015. The Complainant paid the entire consideration amount to the OPs. After constructed the entire building the OPs did not execute register deed of conveyance in respect of flat mentioned in the schedule-B nor the OP No.4 in collusion with other OPs had been parting with possession of property.
The OP No.4 was not parting with the possession of the property and hence the Complainants lodged a written complaint before the Joint Secretary Consumers’ Affairs Department, 11A Mirza Galib Street on 28.09.2015.
The Complainant further stated that they had requested the OP/Developer to handover the possession letter and to execute registered deed of conveyance in respect of flat, but the developer declined to issue possession letter and allowed to reside in their flats. The Complainants entered into the flat on 08.04.2016 but the Complainants noticed that the developer had cheated the Complainants as the measurement of the said flat is 485 sq.ft. (covered area) instead of 650 sq.ft. (super built up area). The developer had realized the consideration amount of Rs.17,75,000/- (Rupees seventeen lac seventy five thousand) only against a flat measuring about 650 sq.ft. (super built up area), but the developer had constructed flat measuring about 458 sq.ft. (covered area). The Complainant realized that the reason for not executing registered deed of conveyance as per registered agreement for sale.
Prayer of the Complainants :
To handover the possession letter and completion certificate.
To execute registered deed of conveyance in respect of said flat being no.I-3210 for the 2015 dated 27.03.2015 registered in the office of A.D.S.R. Cossipore, Dum Dum, North 24 Parganas.
Contd……….P/4
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CC- 420/2016
All alternatively to refund a sum of Rs.1,70,000/- as excess amount received from the Complainants and to execute a registered deed of conveyance in respect of flat being no.6 on the first floor measuring about 485 sq.ft. (super built up area) more or less consisting of two bedrooms, one living-cum-dining space, one open kitchen, one toilet, one balcony of the said building on North East West portion.
To directing the Opposite Parties to pay compensation of Rs.2,00,000/- or above for loss of damage sustained by the Complainants.
The OP Nos.1,2&3 have filed W/V on 08.11.2016 for contest the case. The OP No.4 also had filed W/V on 19.05.2017. In the W/V the OP Nos.1-3 stated that the OP No.4 not at all completed the multistoried building in terms of the development agreement dated 21.01.2012 and as well as per sanctioned building plan as sanctioned by the South Dum Dum Municipality vide sanctioned building plan no.695 dated 13.03.2014. They also stated that the Complainants paid entire consideration amount to the OP No.4.
The OP Nos.1-3 also stated that the disputed flat was within the developers allocation and they had nothing to say in respect of the said flat. They also stated that the Complainants entered into an agreement with the OP No.4 to purchase the flat in question and whatever the consideration amount paid to the OP No.4 and requested to the OP No.4 to register and handover possession letter in respect of the said flat and they also ready and willing to execute and register deed of conveyance in favour of the Complainants.
The OP No.4 has admitted that the Complainants on 16.01.2015 entered into a tripartite agreement with the OPs of the instant case to purchase the said flat for Rs.17,75,000/- and paid sum of Rs.2,66,250/- by two a/c payee cheques. According to the OP No.4 the Complainants paid a total sum of Rs.14,66,250/- and the balance consideration amount i.e. Rs.3,08,750/- was payable at the time of possession or registration whichever is earlier but the Complainants did not bothered to hear the OP No.4.
The following issues have been framed for the purpose of the trial :
- Is the case is maintainable or not?
- Is the Complainants entitled to get relief in this case as prayed for?
- To what other relief/reliefs in the Complainants entitled to?
Decision with Reason
We have perused the complaint filed by the Complainants, W/V field by the all OPs. The Complainants filed Examination-in-Chief with affidavit. We have perused the copy of the agreement, money receipt and other documents filed by the Complainants. On proper study of the complaint and W/V and other materials it is evident that the Complainants and OPs entered into an agreement regarding disputed flat on 16.01.2015 for purchasing one self-contained residential flat no.-6
Contd……….P/5
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CC- 420/2016
on the first floor, North West side measuring about 650 sq.ft. more or less consisting of two bedrooms, on living-cum-dining space, one open kitchen, one toilet, one balcony of the said multistoried building with the considering money of Rs.17,75,000/- (Rupees seventeen lac seventy five thousand) only out of which the Complainants paid Rs.2,66,250/- (Rupees two lac sixty six thousand two hundred fifty) only by two a/c payee cheques vide no.-309900 dated 01.01.2015 drawn on S.B.I., Baguihati Branch and cheque no.525834 dated 16.02.2015 drawn on S.B.I., Baguihati Branch.
It also appears that the Complainants are in possession in disputed flat. When the OP No.4 had already received the total consideration money, so the OP No.4 is liable to execute and register the deed according to law. He is also liable to issue completion certificate to the Complainants. The OPs did not deny the statements of the Complainants in the Affidavit-in-Chief. Law is that if a statement is not denied by countering the Affidavit-in-Chief, the said statement will be treated as admitted by the OPs. The Complainants have succeeded in proving their case against the OPs. The Complainants are the consumer in this case, so it is maintainable.
It is
that the complaint being no.CC-420/2016 be and the same is allowed on contest against the OPs. The OPs are directed to execute and register deed of sale in favour of the Complainants within two months from the date of this order failing which the OPs will be liable as penalty of Rs.100/- per day till the registration completed.
The OP No.4 is further directed to pay compensation of Rs.5,000/- and litigation cost Rs.3,000/- to the Complainants within two months from the date of order.
In default the Complainants will be at liberty to put the order in execution as per provision of Law.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member President
Dictated & Corrected by
