Date of filing :24.4.2017
Judgment : Dt.6.4.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Arindam Mukherjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Gopal Dey, S/o Lt. Rakhal Chandra Dey, 16/1Q Raipur Mondal Para Rd., P.S.-Netajinagar, Kolkata-700 047, (2) Sri Monoranjan Dey, S/o Lt. Rakhal Chandra Dey, 16/1Q Raipur Mondal Para Rd., P.S.-Netajinagar, Kolkata-700 047, (3) Sri Amal Dey, S/o Lt. Rakhal Chandra Dey, 16/1Q Raipur Mondal Para Rd., P.S.-Netajinagar, Kolkata-700 047, (4) Sri Subrata Dey, S/o Lt. Rakhal Chandra Dey, 16/1Q Raipur Mondal Para Rd., P.S.-Netajinagar, Kolkata-700 047, (5) Sri Babul Dey, S/o Lt. Rakhal Chandra Dey, 16/1Q Raipur Mondal Para Rd., P.S.-Netajinagar, Kolkata-700 047, (6) M/s Sree Krishna Real Estate, Developer (a partnership firm), E/61C, Baghajatin, P.S.-Patuli, Kolkata-700 086, (7) Sri Dilip Kumar Das, S/o Late Nibaran Chandra Das, 304 (Old 6/1E), Green Park, Purba Foolbagan, P.S.-Patuli, Kolkata-700 084, (8) Sri Sajal Chakraborty, S/o Late Tapan Chakraborty, E/61C, Baghajatin, P.S.-Patuli, Kolkata-700 086, (9) Sri Sudip Paul, S/o Late Paresh Chandra Paul, at 2/191D, Sree Colony, P.S.-Patuli, Kolkata-700 092, (10) Sri Sudip Paul, S/o Late Paresh Chandra Paul, at 2/19B, Sree Colony, P.S.-Patuli, Kolkata-700 092.
Facts in brief are that the OP Nos.1 to 5 are the owners of a land measuring about 3(three) cottah 11 (eleven) chittacks 00 sq.ft. in EP No.271, CS Plot No.1081(1), Mouza-Raipur, J.L.No.-33, P.S.-Jadavpur, Dist.- South 24 Parganas entered into a development agreement on 7.11.2012 with the OP No.6, partnership firm represented by its partners i.e. OP Nos.7 to 9 for developing the said plot of land by constructing a multistoried building as per terms of the development agreement dt.7.11.2012. The Complainant has stated that being an intending purchaser the Complainant entered into an agreement for sale on 23.07.2014 with the OP Developer for purchasing a self contained flat measuring about 700 sq.ft. having two bed rooms, one kitchen, one drawing cum dining room, two bath cum privy and one verandah in the second floor of the said building lying and situated at premises No.16/1Q, Raipur Mondal Para Road, P.S.-Netajinagar, KMC Ward No.099, Kolkata-700 047, Dist.- South 24 Parganas at a consideration of Rs.8,00,000/- and accordingly paid Rs.5,00,000/- to the OP Nos.6 to 9 and agreed to pay balance consideration amount within 6 months from the date of execution of agreement for sale and as per terms of the said agreement for sale dt.23.7.2014 the OP was to deliver possession and to execute deed of conveyance in favour of the Complainant within the said span of time. It is specific allegation of the Complainant that in spite of receiving part consideration amount the OP Nos.6 to 9 failed and neglected to deliver possession and to execute deed of conveyance in favour of the Complainant. The Complainant has further stated that he sent legal notices which was duly received by OP Nos.1 to 5 but OP Nos.6 to 9 did not receive the same although the envelope with postal remark ‘intimation served’ returned to the Complainant. So, the Complainant by filing the Consumer Complaint prayed for a direction upon the OPs to deliver possession of the flat in question, execute and register the deed of conveyance in favour of the Complainant, to pay interest to the tune of Rs.1,60,000/-, to pay Rs.2,00,000/- towards compensation and Rs.50,000/- as cost of litigation.
Notices were served upon the OPs but the OP Nos.6 to 9 did not turn up so the case was proceeded ex-parte against OP Nos.6 to 9 vide order No.12 dt.31.10.2017. .
The OP Nos.1 to 5 contested the case by filing written version stated inter alia that father of the OP Nos.12 to 5 was the owner of the property lying and situated in Mouza Raipur, J.L.No.33, E.P. No.-271 C Plot No.1081(P) being postal premises No.16/1Q Raipur Mandal Para, P.S.- Patuli, Dist.- South 24-Parganas, died intestate on 28.12.1999, leaving behind his wife, Smt.Kamala Dey, five sons i.e. OP Nos.1 to 5 and four daughters namely Smt. Uma Dhar, Bula Roy, Anjali Datta & Tulu Bhowmick as legal heirs and, thereafter, Smt. Kamala Dey along with her four daughters gifted their share of property to the OP Nos.1 to 5 by way of registered gift deed. The OP Nos.1 to 5 admitted every allegation of the Complainant and stated that this contesting OPs are ready and willing to register the deed of conveyance in favour of the Complainant since the averment of the Complainant fact and accordingly prayed for passing necessary order.
Both parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
The Complainant annexed Development Agreement dt.7.11.2012, Agreement for Sale dt.23.07.2014, General Power of attorney dt.19.11.2012.
Points for determination:
- Whether Complainant is a consumer under the OPs?
- Whether there is a deficiency in providing service?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 – The Complainant entered into an Agreement for Sale in respect of availing housing construction service to be provided by the OP Developers who were empowered to do so vide Power of Attorney dt. executed by the OP land-owners in favour of the OP Developers and also agreed to pay consideration and, therefore, became Consumer under the OPs as per provision of Section 2(1)(d) of C.P.Act, 1986.
Point No.1 is decided accordingly.
Point Nos. 2 & 3 - Both points are taken up together for comprehensive discussion and decision. The Complainant claimed to have entered into an agreement for sale on 23.7.2014 with the OP Developers who were empowered by a registered General Power of Attorney dt.19.11.2012 executed by the OP land-owners in respect of a flat at a consideration of Rs.8,00,000/- out of which he has paid Rs.5,00,000/-. Copies of Agreement for Sale dt.23.7.2014 and Power of attorney dt.19.11.2012 support such averment of the Complainant. In the Agreement for sale the OP Developers acknowledged receipt of Rs.5,00,000/- towards consideration paid by the Complainant. The Complainant has alleged that the OPs failed and neglected to deliver possession of the said flat in question and also to execute the registration of the Deed of Conveyance of the same in favour of the Complainant.
The OP land-owners have filed their written version admitting the allegations made by the Complainant and expressed their willingness to execute and register the deed of conveyance in favour of the Complainant. The Complainant adduced evidence o n affidavit and the same has been remained unchallenged by the OP Developers and supported by the OP landowners.
The Complainant has prayed for delivery of possession and registration of the deed of conveyance. Under such circumstances, as stated hereinabove, the Complainant as per terms of the Agreement for Sale is entitled to possess the flat in question and to get it registered in favour of him. The Complainant is liable to pay the balance amount of Rs.3,00,000/- towards consideration. The Complainant h as also prayed for direction upon the OP to pay Rs.2,00,000/- and also interest amount of Rs.1,60,000/- to be paid by the OPs. In this regard, we are inclined to hold that the entire amount of consideration has not been paid so far and moreover, the Complainant failed to substantiate the quantum of loss suffered by him for non-delivery of the flat in question so that an amount of Rs.2,00,000/- may be awarded towards compensation. The Complainant has paid Rs.5,00,000/- towards consideration of the flat in question and has prayed for direction upon the OPs to deliver possession and to register the Deed of Conveyance of the said flat in favour of him and, therefore, no question of awarding interest on the paid amount towards consideration arises at all.
The Complainant has prayed for direction upon the OPs to pay Rs.50,000/- towards litigation cost.
Considering the circumstances, as stated hereinabove, we are inclined to pass no order as to cost of litigation.
In the result, the Consumer Complainant succeeds.
Hence,
ordered
That CC/242/2017 is allowed ex-parte against OP Nos.6 to 9 with cost and on contest against OP Nos.1 to 5 without cost.
The OPs are directed to execute registration of Deed of Conveyance in favour of the Complainant after taking balance consideration amount by the OP Developers within three months from the date of communication of this order to them.
If the OP Nos.6 to 9 are found unwilling to receive the balance consideration amount of Rs.3,00,000/- and also to execute registration of Deed of Conveyance in that case the Complainant shall deposit the balance consideration amount of Rs.3,00,000/- with SCWF and to get the said flat registered in favour of him through the machinery of this Forum.
