DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 633/2014
Date of Filing: Date of Admission Date of Disposal:
19.11.2014 27.11.2014 27.08.2015
Complainant = Vs. = O.Ps.
Sri Avishek Ghosh 1. Sri Bakul Chandra Saha
S/o. Sri Somnath Ghosh proprietor of
of AB-50, Sector-I, Flat No-3, M/S. Loknath Builders
1st Floor, Salt Lake, S/o. Late Nikanta Saha
P.S.-Bidhannagar (North), of 214/3/7, S.K. Deb Road,
Dist-North 24 Parganas, Chowdhury Bagan, P.S.-Lake Town
Kolkata-700064 Dist-North 24 Parganas,
represented by constituted Kolkata-700048.
power of attorney holder by 2. Sri Nirmal Bor
virtue of General Power S/o. Late Chandi Charan Bor
of Attorney being no-06298 of 513, Canel Street,
for the year 2014. P.S.-Lake Town, Dist-24 Pgs(N)
Sri Somnath Ghosh Kolkata-700048.
S/o. Late Kalidas Ghosh
of AB-50, Sector-I,
Flat No-3, 1st floor, Salt Lake,
P.S.-Bidhannagar(North),
Dist-North 24 Parganas,
Kolkata-700064
Advocate Name for the complainant:- Tapas Saha & Others.
Advocate Name for the OPs:- Abhijit Gope & Others. (OP No-1)
P R E S E N T :- Smt. Bandana Roy..................President
:- Sri Rabideb Mukhopadhayay...........Member
J U D G E M E N T
Facts of the case, in short, is that the OP No-2 being the absolute owner in respect of the landed property measuring about more or less 1 cottahs 14 chittaks lying and situated at premises no-513, Canal Street, P.S.-Lake Town, Dist-North 24 Parganas, Kolkata-700048, within the ward no-34 of South Dum Dum Municipality who entered into a development agreement and general power of attorney registered in the office of A.R.A.-III, Kolkata for the year of 2007 for the purpose of construction of multistoried building with the OP No-1 i.e. Developer and accordingly the OP No-1 i.e. Developer with the concurrence of the OP No-2 i.e.
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owner of the landed property has applied for obtaining multistoried building sanction plan before the office of South Dum Dum Municipality and the said authority concern after being satisfied has been passed the building plan being No-368 dated 28.11.2008 for the said proposed multistoried building and being known as TARAMAA APARTMENT at 513, Canal Street, P.S.-Lake Town, Kolkata-700048 within ward no-34 South Dum Dum Municipality.
Complainant stated that the complainant has entered into an “agreement for sale” with the OP No-2 to purchase one residential unit being flat no-A on the ground floor measuring super built up area about 750 sq. ft more or less, consisting of two bed rooms, one dinning, one kitchen, one toilet and one verandah and written as “flat” by paying the part consideration amount of Rs 1, 00, 000/-. The total value of said flat as specifically and categorically determined as Rs 9, 00, 000/- for the said flat and along with other amenities and additional other cost and liabilities for deep tube well of Rs 10, 000/- and for electricity installation charges of Rs 10, 000/- which are also clearly and unambiguously embodied in the said agreement and at the time of execution of the said agreement the complainant had paid one cheque being no-105118 dated 31.12.2010 amounting to Rs 1, 00, 000/- to the OP No-1 as part consideration and thereafter the time to time payment has been taken place between the complainant and the OP No-1 as in part by part.
Complainant also stated after prolong verbal communications and after elapse of certain and specific time for performance by the OP No-1 and/or regulation time mentioned in the said agreement the complainant has sent a letter dated 02.07.2014 asking the OP No-1 for physical verification of the said flat and also by seeking some relevant documents for registration of the said flat and in response of the said letter dated 02.07.2014 the OP No-1 has sent a letter of reply dated 12.07.2014 and thereafter on 18.07.2014 the complainant has sent personally another letter with request to the OP No-1 to furnish certain documents for registration and delivering the said flat. But the complainant has got no reply of the same.
Complainant further stated that the complainant in the present case had visited the said flat in presence of the OP No-1 and the OP No-1 had opened the pad lock with key and giving opportunity to inspect the same and the complainant and his father noticed that the OP No-1 had constructed only one bed room within his said flat and the OP No-1 had also erected another room exclusively for the office use of the OP No-1 within the said ground floor by reducing the covered
Dictated and corrected Contd. …. 3/-
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area of the said flat and so that the complainant and his father observed in their bare eye that the area measuring about 750 sq. ft (including super built up) never be exist.
Complainant stated the complainant has intimated to the OP No-1 that he had agreed to pay the rest consideration amount if remained, after paying the installments as mentioned in the said agreement in respect of area measuring about 750 sq. ft (including super built up) of the said flat and as such the complainant has proposed to ascertain actual measurement by the joint measurement with the technical persons of both parties concern but the OP No-1 has/had remained silent on that material fact in issue.
Complainant also stated that on 13.10.2014 the complainant being compelled has sent a legal notice through his Ld. Advocate Sri Tapas Saha by divulging the cause of grievance on 16.10.2014 the OP No-1 has received the same but he refrained himself to give any reply. Hence the complaint.
OP No-1 has contested the case by filing written version but OP No-2 did not turn up to contest the case.
OP No-1 stated that an agreement (in two sets) for sale between the vendor/owner of the premises No-513, Canal Street, P.S.-Lake Town, Kolkata-700048, Dist-North 24 Parganas, Developer/confirming party i.e. M/S. Lokenath Builders represented by the proprietor Sri Bukul Chandra Saha (OP No-1) and the purchaser Sri Avishek Ghosh (complainant) was prepared in respect of the flat having super built up area 750 sq. ft more or less consisting of two bed rooms, one dinning, one kitchen, one toilet and one verandah in the ground floor of the aforesaid premises in the month of December, 2010 and accordingly the OP No-1 put his signatures in the said agreement (in two sets), but at the time of putting the signature of the purchaser the complainants the father told the OP No-1 that his son is the purchaser and he would put his signature at home and the father of the complainant assured the OP No-1 that he would returned back one copy of the said agreement after signing his son i.e. the complainant, but the complainant’s father did not return the said copy of same to OP No-1 till date, though a Xerox Copy of the said agreement has been handed over to the OP No-1 after long time. The OP No-1 further submits that the complainant Sri Avishek Ghosh is still now unknown to the OP No-1 since said Sri Avishek Ghosh was always represented through his father Sri Somnath Ghosh and as per instruction and payment of advance Rs 1, 00, 000/- through A/C. Payee cheque bearing no-080330 dated 12.01.2014 for extra work and assurance of further extra payment
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of the complainant’s father said Sri Somnath Ghosh the flat was completed with
extra works, gril and other decorations by the OP No-1 and the OP No-1 requested on several occasions to the complainant’s father for taking possession and completion of the registration of the demised flat by payment of remaining consideration money and remaining money for extra work, gril, cost of Marble, extra Dhalai etc. and decorations, but the complainant’s father did not take any steps for taking possession, registration, and making remaining payment in respect of the said flat till date.
OP No-1 also stated that the complainants father made the payment of Rs 5, 00, 000/- (through 5 Nos. of cheque no-105118, 105486, 429756, 080332 and 046281) against the total consideration money of Rs 9, 00, 000/- and Rs 1, 00, 000/- through cheque no-080330 against the extra works and decoration (as per instructions of the complainant’s father) against Rs 1, 17, 000/- till date and as such the complainant has to pay the remaining consideration money of Rs 4, 00,000/- , Rs 20, 000/- for deep tube well and electricity and a sum of Rs 17, 000/- (remaining part) for extra works and decoration and to take possession of the said flat and complete the registration in respect of the said flat and the complainant has to further pay interest and damage to the OP No-1 due to non-compliance of the part of the complainant in due time.
OPs further stated that a sum of Rs 4, 37, 000/- is still due and payable by the complainant to the OP No-1 since the value of the flat Rs 9, 00, 000/-, expenses for deep tube well and electricity installation charges Rs 20, 000/- and for extra works Rs 1, 17, 000/- total being Rs 10, 37, 000/- payable by the complainant, but only Rs 6, 00, 000/- has been paid by the complainant.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision
Both OP No-1 and complainant filed affidavit in chief and copy of documents and original documents in support of their contention. We have carefully perused all the above materials on record. Admitted position is that complainant has entered into an agreement with the OPs for purchasing a flat for a consideration of Rs 9, 00, 000/- along with other amenities and additional of the cost and liabilities for Deep Tube well of Rs 10, 000/- and for electricity installation charges of Rs 10, 000/- . Complainant ahs stated that complainant has paid a considerable portion of amount. OP No-1 has demanded extra amount for extra work as alleged amounting to Rs 1, 17, 000/- from complainant’s son.
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Complainant has brought to the notice of this Forum in page 13 of the paragraph-15 of the agreement wherein it was written that “in that event that purchaser must agree to bear and or pay for such extra work to the developer/confirming party, and such work shall be done only subject to written concerned of the purchaser”. And as per in seven schedule page no-22, paragraph no-11 has embodied in respect of payment of extra work inter-alia that “ shall be charged extra such amount, shall be deposited in the account of the developer before the execution of the extra work”. According to the complainant, complainant has to pay remaining consideration money of Rs 4, 00, 000/- and a sum of Rs 17, 000/- for extra works and decoration and to take possession of the said flat and complete the registration in respect of the said flat. Admittedly out of Rs 9, 20, 000/- as per agreement for sale OP No-1 has received Rs 6, 00, 000/-. According to the OPs Rs 3, 20, 000/- is due as price of the flat and Rs 1, 17, 000/- for extra work , total Rs 4, 37, 000/- is due from the complainant. But from the agreement page -22 clause-11 it is agreed between the parties that any extra work other than our standard specification shall be charged extra and as such amount shall be deposited in the account the developer before the execution of the extra work. OP No-1 did not mentioned in his written version or affidavit in chief works other than standard specification has been made by the OP No-1 in the disputed flat. When the OP No-1 alleged that it was the duty of the OP NO-1 to establish that before this Forum. OP No-1 did not prove that fact by cogent evidence. So, complainant is liable to pay Rs 3, 20, 000/- as balance consideration money. Accordingly we are of the view in the light of discussion above that the complainant is entitled to get relief as prayed for.
Hence
It is ordered,
that the complaint and same be allowed on contest against the OP No-1 and exparte against OP No-2.
Complainant is directed to pay balance consideration money of Rs 3, 20, 000/- to the OPs within one month from the date of this order, on receipt of the balance consideration money OP No-1 will deliver and handover the flat as per agreement for sale deed dated 31.12.2010 to the complainant and will execute and register the deed of conveyance.
In default complainant will deposit the balance consideration in this Forum and will get the deed of conveyance execute and register through this Forum.
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OPs are also directed to pay compensation of Rs 10, 000/- and Rs 5,000/- as litigation cost to the complainant within one month from the date of this order, failing which OPs shall have to pay sum of Rs 100/- per days from the date of this order till its realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
