West Bengal

South 24 Parganas

CC/615/2014

Smt. Chnadana Ghosal, Wife of Late Sashanka Kumar Ghosal. - Complainant(s)

Versus

Sri Dipankar Sarkar, S/O Sri Manindra chandra Sarkar. - Opp.Party(s)

06 Jun 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _615_ OF ___2014__

 

DATE OF FILING : _23.12.2014__                         DATE OF PASSING JUDGEMENT:  _6.6.2016__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Sharmi Basu   & Subrata Sarker

                                                                             

COMPLAINANT             :        1. Smt. Chandana Ghosal,w/o late Sashanka Kumar Ghosal

2. Sri Subhajit Ghosal,s/o late Sashanka Kumar Ghosal
3. Smt. Sangita Ganguly,w/o late Sanjoy Ganguly

33/1, R.N. Tagore Road, Nabapally, P.S. Thakurpukur, Kolkata-63.

 

-VERSUS  -

 

O.P/O.Ps                            :    1. Sri Dipankar Sarkar,s/o Sri Manindra Chandra Sarkar of 165/N, Das Para Road, P.S. Thakurpukur, Kolkata – 63.

                                                2.     Sri Anil Ranjan Majumder,s/o late Rajendra Lal Majumder

                                                3.     Smt. Basanti Majumder,w/o Sri Anil Ranjan Majumder

                                                Both of 136/N, Karunamoyee Ghat Road, P.S. Thakurpukur, Kol-82.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

 

The short case of the complainant as unfolded under section 12 of the C.P Act is that O.P on the strength of the Development Agreement dated 28.9.2003 executed an agreement for sale dated 7.6.2005  and agreed to sell one self contained flat consisting of one bed room , one dining cum kitchen, one bath cum privy measuring 400 sq.ft super built up area  on the second floor southern side of three storied building together with  undivided proportionate share in land and its all amenities  in premises no.398, Vidyasagar Sarni, P.S. Thakurpukur, Kolkata – 63 with Sashanka Kumar Ghosal, since deceased. After the death of the original complainant the legal heirs who are complainant nos. 1 to 3 are contesting the case.  It has stated that the total consideration was Rs.3,08,000/- and the O.P-1 and her husband late Sashanka Kumar Ghosal already paid Rs.3 lacs to the O.P-1 developer. Accordingly after receiving almost entire consideration money the O.P handed over the possession of the said flat to the complaiant-1 and her husband on 31.12.2005  and after receiving the possession of the said flat complainnt-1 and her deceased husband requested the O.Ps to execute and register the proper deed of conveyance  in their favour but the O.Ps avoided on some false and frivolous grounds. It has stated that complainants always requested the O.Ps to execute and register the deed of conveyance upon receiving balance consideration money of Rs.8000/- but they have deferred the same on different pretext. Thereafter, legal notice was issued wherein complainants received same reply  through his Ld. Advocate Manoj Pal on 20.11.2014 that his client refused to execute and register the deed of conveyance in respect of the flat in favour of the complainant on the plea that developer has received the consideration money and as such they are not liable to execute and register the deed of conveyance. Hence this case with the prayer to direct the O.Ps to execute and register the deed of conveyance , cost and compensation as well as Rs.50,000/- for difference of stamp duty.

The O.P nos. 2 and 3 contested the case by filing written statement and has denied all the allegations leveled against them. It is the positive case of the O.Ps that they are not directly or indirectly responsible and liable to the husband of the petitioner no.1 and they are in dark  and ignorant regarding the transaction . It is further stated that O.P nos. 2 and 3 are 80 and 70 years old respectively. So, this is nothing but a harassing case , for which, they claim  Rs.60,000/- each and litigation cost of Rs.25000/- only from the O.P-1 and the complainants.

The O.P-1 inspite of serving summon did not appar,for which case is running in exparte against him.

Points for decision in this case whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

                                                            Decision with reasons

At the very outset it must be stated that developer O.P-1 is not contesting the case inspite of issuing summon . O.P nos. 2 and 3 ,the land owners, are contesting the case.

Regarding point no.1 , it appears from the development agreement that land owners and the developers made a joint venture agreement for developing the land wherein the Schedule B is shown as owner’s allocation. From the said development agreement it appears at page 14 in bottom (b) that the developer shall be entitled to transfer, alienate or assign this agreement to any other person or persons for completion of the building under the terms and conditions of the agreement and without any consent of the owners. It has further stated in said page in the midst para no.3 in the last part that “But shall have all right to let out , grant lease, booking money etc. from the person, company/companies or any person”.

Thus developers have ever right to collect the booking money to the intending purchaser on his portion, that is why, developer has agreed to execute the agreement for sale on 7.6.2005 with the complainant no.1 and her husband Sashanka Kumar Ghosal ,since deceased, and in the said agreement for sale it is clear that the developer has put his signature as constituted attorney of O.P nos. 1 and 2. It is well known to us that the act of the Attorney is the act of the persons who has given the said power (herein the O.P nos. 2 and 3)”. So they are not aware about the same and are not liable to execute the deed of conveyance. In terms of the Development Agreement they are only bound to execute and register the deed of conveyance in favour of the complainants. Thus, this point is hereby disposed of.

Now the question is after delivery of possession of the said flat O.Ps are not taking any steps for execution and registration of the deed of conveyance. So, this is an example of deficiency in service and unfair trade practice. It is true that contesting O.P nos. 2 and 3 although wanted to save their skin showing their old age but they will take no shelter from the Law of Land because they are the owners of the land   and in that case complainant will arrange execution and registration of the flat either through machinery of the Forum or through Commission because contesting O.P No. nos. 2 and 3 are liable for the act of the developer in terms of the development agreement and O.P nos. 2 and 3 have got their portions from the developer. So, they are also liable to comply the terms and conditions of the agreement towards the intending purchasers at least in registration matter.

With that observation we find that complainant has been able to prove his case of unfair trade practice and deficiency in service since non-taking steps of the developer clearly shows the same.

Hence,

                                                            Ordered

That the application under section 12 of the C.P Act is allowed on contest against O.P nos. 2 and 3 and in exparte against  O.P-1.

The O.Ps are directed to execute and register the deed of conveyance in respect of the flat in dispute in favour of the complainant within 30 days from the date of this order, failing which, Ld. Advocate Madan Mohan Das is being appointed as a Machinery of the Forum  to execute and register the deed of conveyance on behalf of the land owners and standing as a confirming party on behalf of the developer O.P-1 and in that event the remuneration of the Advocate Commissioner is fixed at Rs.6000/- which will be borne by the complainant and the Ld. Advocate Commissioner will verify  the draft deed of conveyance strictly in terms of the agreement for sale.

The O.P-1 is hereby directed to pay compensation to the tune of Rs.50,000/-  and litigation cost of Rs.5000/- to the complainant  and O.P nos. 2 and 3 are liable to pay cost of Rs.1000/- each to the complainants for non cooperation in the matter of registration within 30 days from the date of this order.

Claim of the O.P nos. 2 and  3 as unfolded in the written version is not tenable in the eye of Law ,for which, he has to file a separate case since he is not a consumer against the complainant and if they have any grievance they may file separate case against the O.P-1 .

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                                                           Member                                                           President

Dictated and corrected by me

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement 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 is allowed on contest against O.P nos. 2 and 3 and in exparte against  O.P-1.

The O.Ps are directed to execute and register the deed of conveyance in respect of the flat in dispute in favour of the complainant within 30 days from the date of this order, failing which, Ld. Advocate Madan Mohan Das is being appointed as a Machinery of the Forum  to execute and register the deed of conveyance on behalf of the land owners and standing as a confirming party on behalf of the developer O.P-1 and in that event the remuneration of the Advocate Commissioner is fixed at Rs.6000/- which will be borne by the complainant and the Ld. Advocate Commissioner will verify  the draft deed of conveyance strictly in terms of the agreement for sale.

The O.P-1 is hereby directed to pay compensation to the tune of Rs.50,000/-  and litigation cost of Rs.5000/- to the complainant  and O.P nos. 2 and 3 are liable to pay cost of Rs.1000/- each to the complainants for non cooperation in the matter of registration within 30 days from the date of this order.

Claim of the O.P nos. 2 and  3 as unfolded in the written version is not tenable in the eye of Law ,for which, he has to file a separate case since he is not a consumer against the complainant and if they have any grievance they may file separate case against the O.P-1 .

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                                                           Member                                                           President