West Bengal

Paschim Midnapore

CC/138/2016

Sri Tushar Kanti Bera - Complainant(s)

Versus

Sri Ayan Jana - Opp.Party(s)

07 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

  Bibekananda Pramanik, President

and

 Pulak Kumar Singha, Member

 

Complaint Case No.138/2016

 

Sri Tushar Kanti Bera, S/o-Nirmalendu Bikas Bera, of 155/10,

New Bus Stand, Raghunathpur, P.O.& P.S.Jhargram,

Dist.Paschim Medinipur, Pin-721507                                                                                                                                                                        

                                                                   ………..……Complainant.

                                                                                                       -Vs-

1. Sri Ayan Jana, S/o-Late Arun Kumar Jana, Raghunathpur,P.O.& P.S.Jhargram Dist.Paschim Medinipur, Pin-721507
2.  Sri Arka Pradhan, s/o-Sri Tapan Pradhan,  Raghunathpur, P.O.& P.S.Jhargram Dist.Paschim Medinipur,Pin-721507
3. Smt.Tapati Pradhan,W/o-Sri Tapan Pradhan,  Raghunathpur,P.O.& P.S.Jhargram Dist.Paschim Medinipur,Pin-721507

Directors of  Ignited Filling and Servicing Centre Pvt. Ltd. Land-Owners/Vendors.

4. Ignited Filling and Servicing Centre Pvt. Ltd. having its Corporate Office at    Raghunathpur, P.O.& P.S.Jhargram , Dist.Paschim Medinipur, Pin-721507.PAN-AABC14864Q represented  by its 

4-a) Sri Arka Pradhan, S/o-Sri Tapan Pradhan

4-b) Smt.Tapati Pradhan, W/o-Sri Tapan Pradhan,   Raghunathpur, P.O. & P.S.Jhargram,       

        Dist. Paschim Medinipur, Pin-721507.                                                                     .                                                                                                ....……….…Opposite Parties.                                                      

              For the Complainant: Mr.  Aditya Bhakat, Advocate.

              For the O.P. : Mr. Subol Chakraborty, Mr. Tapash Adhya & Mrs. Kaberi Nandi, Advocate  

                                                           

                                                          Date of Filing      :   08.09.2016.

                                                          Date of Disposal :   07/06/2018.

                                                                                                                                                                 Contd………….P/2.

 

 

                                                                                               ( 2 )

 

                     Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Tushar Kanti Bera against the above named O.Ps, alleging deficiency in service on their part.

           Complainant’s case, in brief, is as follows:-

                                  O.P nos. 1, 2 and 3 are the land owners of a plot of land as described in schedule A of the petition of  complaint and they empowered the O.P. nos. 4,  4a and 4b to construct a G+3 storied building/apartment consisting of several flats on the said land. On the declaration of sale of apartment by the O.Ps., the complainant approached the O.Ps. for purchasing a flat being Unit No. B on the first floor of the building named as Arunoday Apartment comprising of a super built area of 820 sq.ft. with proportionate share  of land, common area and common facilities. An agreement for sale  was accordingly executed on 12.9.2014  in between  the complainant and O.P.No.4, 4a & 4b for sale of that flat  at a total  consideration of Rs.17,75,000/-. In terms of such agreement for sale,  the complainant paid a total sum of Rs.16,75,001/- and the last payment was made on 5.9.2014 by cheque. It was agreed by the O.Ps. that the project will be completed within 24 months from the date of execution of agreement of sale. It is alleged that  the residential unit was not constructed  as per specification as fully set forth in 3^rd Schedule of the agreement. It is further alleged that the opposite parties are desperately violating the building rules and they did not care to complete the project within time. They are also in no mood to return the advance money  and to complete the construction and  to deliver the apartment. Hence, the complaint, praying for directing the O.Ps.to refund the advance  amount of Rs.16,75,001 with interest from  2.1.2014 and for an order of  compensation of  Rs.50,000/- and for litigation cost.

                                 O.P.No.1 appeared in this case and filed a written version  but finally he did not appear to contest  this case.

                                O.P.No.2 to 4b have contested this case by filing a  joint written version.

                                 Denying and disputing the case of the complainant, it is the specific case of the  O.P.Nos. 2 to 4b that the dispute of this case is purely civil in nature as the same discloses a case for specific performance of contract and that too without fairly disclosing therein how the complainant failed to perform his part of contract. It is stated that the complainant took possession of  the flat in good faith and he is in possession  of the flat to his satisfaction till date. Denying all the allegations made in the petition of  complaint, it is stated by the O.Ps. that  they have no deficiency in service and since the complainant has taken possession of  the flat, so he has no right  to ask for refund of  advance money. O.Ps. therefore claim dismissal of the case with cost.                                                                                                                                                                                                                                                                                                                                               Contd…………..…..P/3.

 

                                                                                                    ( 3 )

           To prove his case, the complainant has examined himself as P.W.1 and the documents, relied upon by the complainant, have been marked as exbt.-1 to 4 respectively. On the other hand, O.P.Nos.2 to 4b have examined O.P.No.2 as O.P.W.1and no other witness.                                              

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer ?
2. Is there any deficiency in service on the part of the O.Ps. ?
3. Is the complainant entitled to get the reliefs, as sought for ? 

                                                        Decision with reasons

 Point nos.1 :-

                   Although the O.Ps. have stated in their written version that the present complaint is not maintainable, but at the time of final hearing of this case, no question was raised on behalf of the O.Ps. regarding maintainability of this case. It appears that in the body of the complaint, the complainant has narrated how there was deficiency in service on the part of the O.Ps. in not completing the construction of the flat in question as agreed upon and in not executing the deed of sale . Therefore what is required in a case before the Consumer Forum is already there in the complaint and the present complaint is thus well maintainable before the Consumer Court.

                  This point is accordingly decided in favour of the complainant.

Point No.2 :-

                  From exbt.-1 & 2, it appears that admittedly O.P.No.1, 2 & 3 are the owners of the land and O.P.No.2 to 4b are the developer/promoter of developing the said land by constructing thereupon  a multi-storied building named and known as Arunoday Apartment . It is undisputed that by virtue of an agreement for sale dt.12.9.2014 (exbt.-3) executed in between the  O.Ps. and the complainant it was agreed that the O.Ps. shall sell a flat of the said apartment being residential unit No. B on the first floor of the said Arunoday Apartment measuring super built area of 820 sq.ft. at a consideration of  Rs.17,75,000/- to the complainant. From the pleadings of the parties as well as from the evidence of the complainant it appears that admittedly in terms of said agreement of sale, the complainant has already paid Rs.16,75,001/- out of total consideration money of Rs.17,75,000/- to the O.Ps. and it was contemplated in the said agreement that the project shall be completed within 24 months from the date of execution of agreement . From the cross-examination of P.W.1 Tushar Kanti Bera, the complainant, we find that he has admitted that the before the time scheduled for possession as per terms and agreement for sale, he took possession of the flat in question. It is the allegation of the complainant that

                                                                                                                                                   Contd………..…….P/4.

 

                                                                                                                   

                                                                                                 ( 4 )

 

the O.Ps have not completed the construction of the flat and apartment in terms of agreement for sale and by complying the municipal laws. During the cross-examination of P.W.1, the complainant, it was suggested to him by the O.Ps. that since he took early possession of the flat, so the O.Ps. were unable to complete finishing works of the flat. It thus appears that admittedly before the time framed for possession, the complainant took possession of the flat. It also appears from the above discussions that admittedly the finishing works of the flat has not been completed by the O.Ps.  In his cross-examination, Sri Arka Pradhan, the O.P.No.2 who deposed on behalf of  O.P.Nos.2 to 4b has admitted that they have not yet obtained completion  certificate of the flat and the said flat has not yet been registered. We have already stated that it is undisputed that out of the total consideration money  of Rs.17,75,000/- of such sale of the  flat in question, the complainant has already paid  Rs.16,75,001/- to the O.Ps. Since admittedly the O.Ps. have not yet completed the entire finishing works of the flat and apartment and they have not yet executed and registered deed of sale of the said flat in question, so we have no hesitation to hold that there is gross deficiency in service on the part of the O.Ps.

                      This point is accordingly decided in favour of  the complainant.

Point No.3:-

                       Although in paragraph-9 of the petition of complaint, the complainant has stated that he is ready to purchase the apartment in compliance of the agreement otherwise the O.Ps. may be directed to refund the consideration money but in the prayer portion it has only been prayed that an order for refund of the advance money with interest may be passed. Since the complainant has specifically stated that he is ready to purchase the flat and since admittedly the complainant has been residing in the flat in question after paying advance consideration money of Rs.16,75,001/-, so we are of the view that the ends of justice would be meet if an order be passed against the O.Ps. directing them to execute registered  sale deed in favour of the complainant after receiving balance consideration money and after completing finishing works of the flat and apartment and after obtaining completion certificate from the municipal authority . That apart, the complainant is also entitled to an order of  compensation and cost.

                    This point is accordingly decided  in favour of the complainant.

                    All the points are accordingly disposed of.

                    In the result, the complaint case succeeds.

                                                                                                                                                         Contd……….P/5.

        

                                                        

                                                                                        ( 5 )

 

                                  Hence, it is,

                                                      ORDERED

                                                     that the complaint case No.138/2016 is allowed on contest with cost against O.P.Nos.2 to 4b and allowed ex-parte without  cost against O.P.No.1.

                            O.Ps. are directed to execute and register a sale deed in favour of the complainant in respect of the flat in question after receiving balance consideration money and after completing finishing works of the flat and apartment and after obtaining completion certificate from the municipal authority. O.Ps. are further directed to pay Rs.10,000/- as compensation and litigation cost of Rs.5,000/- to the complainant.

                            The above order must be complied by the O.Ps. within 6 months from this date of order i.d. the complainant would be at liberty to take the recourse of law for non-compliance of the order.

                            Let plain copy of the order be given to the complainant free of cost.

               Dictated and Corrected by me

                       

                              President                                      Member                          President

                                                                                                                   District Forum

                                                                                                                Paschim Medinipur.