DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 166/2016
Date of Filing: Date of Admission Date of Disposal:
17.03.2016 28.03.2016 01.09.2017
Complainant
Sri. Swapan Aich,S/O Lt. B.L.Aich, E-942, C.R.Park,2nd Floor, New Delhi-110019.
Vs
Opposite Parties
- Sri. Debajit Banik S/O Sri. Gopal Chandra Banik of 126/2/2,Nagendra
Nath Road, P.S: Dumdum, Kolkata-700028 and P.A-91, Lichu Bagan,
P.O:-Arjunpur, P.S: Baguiati, Kolkata- 700059.
2 . GEM’s Construction, Represented by its proprietor Sri Debajit Banik
having its registered office at 126/2/2, Nagendra Nath Road,
P.S: Dumdum, Kolkata-700028 and also at 3, Ananda Mohan Bose
Road, Kolkata-700074
3. Sri. Samarendra Ghosh
4. Sri. Proloy Ghosh ,
Both Son’s of Late Harendra Chandra Ghosh, Both residents of
Motilal Colony, P.S: Dumdum, Kolkata-700081.
P R E S E N T : Sri. Bankim Chandra Chattopadhyay ………….. President
: Sri. Siddhartha Ganguli………………………………Member
Final Order & Judgment
The Complainant Sri. Swapan Aich files an application U/s 12 r.w Sec-13 & 14 ofthe C.P.Act,1986 for gross negligence, unfair practice and deficiency on the part of the O.Ps in rendering service towards the Complainant and therefore prays for reliefs as stated in the complaint petition.
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J U D G E M E N T
Brief facts of the case of the complainant is that he is an intending purchaser of a flat no:-H/111/203, having more or less having an area about 856 sq.ft. on the ground floor at the premises of 111/203, at Jangalpur Road, 2 ½ No. gate, Kolkata-700081 being E- 487, Motilal Colony under Mouza: Jalgalpur, P.S: Airport, C.S Plot No: 487, S.P No: 120, under local limits of Dumdum Municipality, Dist: 24Parganans(North), Kolkata-700081consisting of two bed rooms, one drawing cum dining room, one kitchen, one toilet, one bathroom, one verandah including all common areas to be appended in the said building and an agreement for sale has been executed on 10.04.2014 by and between the Complainant and the O.P No: 1 &2 ,who are the developers of the building and total consideration amount of the said flat was fixed at Rs.11,12,000/,out of which complainant paid Rs9,60,000/ by way of cash and cheques.
It is the contention of the complainant that the construction work of such flat has been completed and therefore the complainant requested the O.Ps to handover peaceful khas possession of the said flat after receiving the balance consideration amount of Rs.1,52,800/
It is stated by the Complainant that a development agreement had been prepared by and between the O.P Land owners being O.P No: 3 & 4 with the O.P Developers being O.P No: 1 & 2 on 05.06.2013 on the specific terms and conditions as mentioned therein and in view of the said development agreement the O.P No: 1 & 2 started constructing a multistoried building /residential flat at the schedule mentioned plot and being allured the Complainant booked the said flat and paid the advance amount as aforesaid after entering into an agreement for sale with the O.P developers i.e O.P No: 1 & 2.
It is further stated by the Complainant that O.Ps did not issue any inspection letter or provided any intimation after the completion period to him. The O.Ps also did not supply the copy of sanctioned plan or other documents etc. to the Complainant.
The Complainant stated that he received information that the project work for the construction of building has been completed but the O.Ps did not handover possession to him. Thereafter the Complainant served lawyer notice to the O.Ps demanding possession of the said flat and for performing other statutory
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duties within a specified period of time as mentioned in the letter dated 24.02.2016.But despite receiving the same O.Ps did not pay any heed to .Therefore the Complainant alleges deficiency of service on the part of the O.Ps. Finding no alternative he is constrained to file this case against the O.Ps before this Forum for the reliefs as prayed for in the Petition of Complainant which are as follows:-
- Restrain order against the O.P not to erection/construction/changes/alteration/handing over possession to others in respect of the flat as stated in the schedule.
- A direction upon the O.Ps to handover peaceful khas possession of the schedule flat to the Complainant with the Completion certificate and executing the registration of the said flat in favour of the Complainant .
- A direction upon the O.Ps to give all relevant clear documents of the statutory bodies like municipal authority, CESC and others as per the agreement to the Complainant.
- A direction upon the O.Ps to pay Rs.5,00,000/ to the Complainant as compensation for mental agony, pain, undue hardship, financial loss for the prolonged delay in the process for the delivery of possession of the said flat.
- Cost of litigation amounting to Rs.2,00,000/.
- Any other relief or reliefs as Ld. Forum may deem fit to pass.
The Complainant further stated that the said agreement for sale dated 10.04.2014 has been misplaced/lost and therefore the Complainant lodged a GDE vide No: 1894 dated 31.01.2016 before the Airport P.S
The Complainant filed written examination-in-chief and submitted the documents .
The notices were delivered to the O.Ps and the O.Ps appeared before this Forum and the O.P developer Namely Debajit Banik filed Written version in this case. The O.P denied all the allegations made in the complaint. But he did not file any document in this case.
From the written version of the O.P it is found that he is engaged in the business of development of properties since last good years and has reputation in this field. The Complainant who is permanent resident of Delhi came to contact with the O.P through the common friends and well wisher of the Complainant and O.P. It is stated that the Complainant shown eagerness to do business with O.P and Complainant started to invest in different project of the O.P and had been earning
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lucrative returns there from and cordial relation was build up in between the Complainant and O.P. The Complainant used to invest money as financier and the O.P use to give proportionate share in earning from the project. The O.P introduced one Ashis Das who was helpful in the project of the O.P and as such a friendly relationship has been grown up among them. As the Project started at C.S plot No: 2515(P) at holding No: 487,2 ½ Motilal Colony, Ashish Das requested the O.P to give him a flat as he was facing accommodation problem and accordingly one agreement for sale in between Soma Das, W/O Ashis Das and O.P Debajit Banik has been executed on 28.07.2015, the consideration amount of the flat has been fixed Rs.10,20,000/ and out of which the said Soma Das paid a sum of Rs.8,60,000 to the O.P and the matter is well within the knowledge of the Complainant as a common friend of the Complainant and the O.P and subsequently the possession of the flat has been handed over to the Soma Das in the last part of 2015 when it get ready on payment of part of balance amount and possession letter of the flat has been handed over to Soma Das by the O.P.
That in the last part of 2015 particularly after getting the possession of flat by Soma Das some misunderstanding has been cropped up with Complainant and husband of Soma Das namely Ashish Das and the Complainant started to pressurize this O.P to rescind the agreement of Soma Das and dispossessed her from the flat due to refusal to dance on the tune of the Complainant. It is stated in W/V that the Complainant with his men and agents started to disturb this O.P in different way. The Complainant never entered into an agreement to sale of flat and he have never paid any farthing to get a flat at 2 ½ Jalgalpur Mouza at holding No: 487 and at no point of time the O.P has got any money as alleged by the Complainant for booking the flat, the money receipt as shown is not proper and manufactured one and is not at all binding upon the O.Ps. The Complainant and his men and agents had free access to the office of the O.P and the money receipt is handiwork of the Complainant for the purpose of this case and other proceedings. The description given in the money receipt regarding number of flat and other details is false one and not identical as the Complainant has no right and or interest in the project and or flat.
It is further stated in the W/V that the Complainant is a master of mischief and he out of grudge and to satisfy his ego has filed several false criminal cases against the O.Ps, Soma Das and Ashish Das.
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The Complainant has filed the present petition to malign the O.P and his construction firm causing which the O.P has suffered great monetary loss and mental agony and physical harassment. Further the O.P stated that the Complainant has a strong financial back ground and man power and he is harassing the O.P by filing this petition and other false criminal cases as the O.P denied dancing with the immoral and illegal tune of the Complainant. The O.P further stated that there is no deficiency in service on the part of the O.P as there was no agreement for sale in between the parties.
The said Soma Das filed a petition before this Forum for addition of parties, but her prayer has been rejected vide Order no: 13 dated: 23.02.2017
Subsequently the O.P Debajit Banik filed one show cause on 24.04.2017 supported by an affidavit by which he admitted that he was ready and willing to provide the possession and registration of the suit flat in dispute to the Complainant. In para-8 of the said petition the O.P admitted that the Complainant being an intending purchaser was interested to purchase a flat No: GA on the ground floor measuring about 913 sq.ft super built up area situated at 2 ½ Motilal Colony, lying and situated on the plot of land measuring an area of 01 Cottah,08 chittak,00 sq.ft comprised in RS Daag No: 604, corresponding to the C.S Daag No: 2515,corresponding to E.P No: 487, S.P No: 120, R.S Khatian No: 1291, at Mouza- Jangalpur,J.L No: 10,P.S: Nimta, presently Airport, Ward No: 17, Holding No: 21/2, of the North Dumdum Municipality, North 24 Parganas, Kolkata-700081 as stated in detail in the schedule of the Complaint petition and acknowledged the receipt of money of Rs.8,60,000/.The O.P also admitted the existence of the agreement with Complainant.
During the continuance of the case the O.P registered the deed of conveyance vide deed No: I-1697/2017 registered before the DSR-II,24 Parganas(N),Barasat in respect of the suit flat in favour of the Complainant on 01.06.2017 and the total consideration money amounting to Rs.11,12,000/ has been paid by the Complainant.
The Complainant filed the copy of deed as aforesaid.
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The O.P No: 3 & 4 appeared before the Forum, but no W/V has been filed by them. Therefore the case is being proceeded ex-parte against them.
The Complainant and O.P No: 1 & 2 filed B.N.A.
From the Complaint petition, W/V of the O.P and other materials on record the following points have been framed-
- Is the Complainant is a Consumer under the C.P. Act?
- Is there is any deficiency of service on the part of the O.Ps?
- Whether the Complainant is entitled to get any relief as sought for?
Decisions with Reasons
All the points are taken up conjointly as the same are interlinked with each other.
From the Evidence and materials on record it is found that the Complainant was an intending purchaser of the flat in question and one agreement was executed between the parties as referred above. The Complainant paid advance amount of Rs.8,60,000/ to the O.P developer, out of total consideration amount being Rs.11,12,000/.
Fact remains that during the pendency of the case the O.P Debajit Banik executed a deed of conveyance on 01.06.2017 vide deed No: I-1697/2017, in favour of the Complainant in respect of the suit flat after receiving the total consideration amount.
It is pertinent to mention here that though the O.P developer initially denied the disputes or allegations of the Complainant but subsequently he admitted all the facts as stated in the Complaint petition and executed the deed of conveyance after receiving full price of the flat in question during the pendency of the case and thereby the O.P developer committed deficiency in service by admitting the case of the Complainant.
So, on considering the instant situation and the materials on record, we are in view that the Complainant proves his case and therefore the case of the Complainant succeeds but in part.
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Regarding the quantum of compensation and litigation cost we hold the view that as the O.P No: 1 & 2 executed the deed of conveyance during the continuance of the case, we are not inclined to make any order for compensation but we quantify the litigation cost amounting to Rs.10,000/ which is to be paid by the O.P No: 1 & 2 to the complainant.
Hence it is
Ordered
That the Complaint Case No: 166/2016 be and the same is allowed on contest against O.P No:1 & 2 and ex-parte against the O.P No: 3 & 4 in part but with cost.
O.Ps are directed to handover the vacant physical possession of the flat of the Complainant as stated in the schedule of Complaint petition to the Complainant within 30 days from the date of this order.
O.Ps are further directed to handover the letter of possession and completion certificate/occupancy certificate duly issued by the Municipality concerned within 30 days from the date of this order.
In default the O.Ps have to pay Rs.100/ per day as punitive damages which shall run from the 31st day till the date of getting actual physical possession of the flat by the Complainant. Out of total punitive damages the Complainant shall be entitled to get 50% of the amount and the rest 50% shall be deposited in the State Consumer Legal aid Account.
O.Ps are further directed to pay a sum of Rs.10,000/ as litigation cost , to the Complainant within 30 days from the date of this Order, failing which the amount shall carry an interest @8% p.a till realization.
Let free copies be given to the parties concerned.
Member President
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