DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No. 366/2022
Date of Filing Date of Admission Date of Disposal
21.11.2022 16.12.2022 12.10.2023
Complainant/s:- | Sri Pranab Banerjee, S/o Laxman Banerjee of Sandalpur, Mistri Ghat, Manirampur, P.O & P.S. Barrackpore, District – North 24 Parganas, Kolkata – 700120. -Vs- |
Opposite Party/s:- | - SRI KAUSHIK GHOSH, S/o Sri Kamal Krishna Ghosh and Proprietor of K. Enterprise situated at 78/44, Satrapara (East), Bandipur, P.O. Rahara, P.S. Khardaha, District North 24 Parganas, Kolkata – 700118.
- SRI DIGEN CHAKRABORTY, S/o Late Bibhuti Bhusan Chakraborty residing at R. K. Pally, P.O. Rahara, P.S. Khardaha, District North 24 Parganas, Kolkata – 700118.
- SRI SAMAR CHAKRABORTY
S/o Late Bibhuti Bhusan Chakraborty - SMT MILAN CHAKRABORTY
W/o Sachindra Chakraborty, Serial no. 3 to 4 are residing at Patulia Govt Colony, P.O. Rahara, P.S. Khardaha, District North 24 Parganas, Kolkata – 700118. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT/FINAL ORDER
Complainant above named filed this complaint U/s 35 of the Consumer Protection Act, 2019 against the aforesaid Opposite Parties praying for direction to the O.P No. 1-4 to hand over the physical possession with possession letter or to return the amount of Rs. 14,40,000/- along with interest @ 18% p.a. by the O.P No. 1, compensation amounting to Rs. 2,00,000/- against O.P No. 1 and litigation cost amounting to Rs. 2,00,000/- against O.P No. 1.
He alleged in the petition of complaint that O.P No. 1 is a developer and O.P No. 2-4 are the vendors. Complainant had purchased one flat specifically described in the first schedule and second schedule of the petition of complaint from the O.P No. 1-4 and they executed one sale-deed in favour of the Complainant.
As per said registered deed of conveyance the total sale consideration of the aforesaid flat was settled at Rs. 11,00,000/- and O.P No. 1 had received the said amount on different dates and lastly on 26/02/2015 from the Complainant and said fact has reflected in the aforesaid deed of conveyance.
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Complainant had also paid Rs. 3,40,000/- to the O.P No. 1 as payment for the registration of the said deed of conveyance and advance payment for the expenses regarding municipal mutation.
In the aforesaid deed of conveyance it has clearly mentioned that O.P No. 1-4 have confirmed the physical possession of the aforesaid flat in favour of the Complainant. But O.P No. 1-4 did not hand over the physical possession of the aforesaid flat in favour of the Complainant on 20/12/2019.
On repeated demands for physical possession by the Complainant, O.P No. 1 failed to deliver physical possession of the aforesaid flat.
Due to failure of delivery of possession of the aforesaid flat Complainant asked the O.P No. 1 to hand over the physical possession of the aforesaid flat on several occasion. Lastly O.P No. 1 has refunded the aforesaid sum of Rs. 14,40,000/- in favour of the Complainant by a cheque. Complainant placed said cheque in his bank but it was not enchased due to insufficient fund. The aforesaid O.P No. 1-4 are nothing but deficiency in service. Hence, the Complainant filed this case and prayed for aforesaid reliefs.
TRIAL
During trial, Complainant filed evidence by way of affidavit-in-chief.
DOCUMENTS
Complainant produced the following documents at the time of filing of this case with the marked annexures:-
- Deed of Conveyance executed on 20/12/2019, presented for registration on 24/12/2019……xerox copy (annexure A).
- Notarial Certificate along with development agreement in between O.P No. 1 and O.P No. 2-4 executed on 07/09/2022……xerox copy( annexure B).
- Development Power of Attorney dated 14/09/2012 registered document……xerox copy (annexure C).
- Declaration-cum-undertaking (notarized)…….……(xerox copy) (annexure D).
- Declaration-cum-undertaking (notarized)…….…… (xerox copy) (annexure E).
- Return memo out of work clearing (CTS along with cheque dated 14/06/2022 amounting to Rs. 14,40,000/-)…… (xerox copy) (annexure f).
- Certificate issued by O.P No. 1 date NIL………(xerox copy) (annexure G).
During hearing of argument Ld. Advocate for the Complainant produced the aforesaid original documents before us and we verified the same.
BNA
Complainant produced BNA.
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C.C. No. 366/2022
Decision with Reasons
We have carefully gone through the affidavit-in-chief filed by the Complainant which is nothing but unchallenged testimony. We have also carefully gone through the documents filed by the Complainant. These are Xerox copies but at the time of hearing of argument. Ld. Advocate for the Complainant produced the original documents which were verified. There is no counter evidence on record. Nothing has brought to our notice during hearing against the aforesaid documents. Accordingly, we do not find any reason to disbelieve those documents.
We have carefully gone through the other materials on record.
In the present case notice were served upon the O.P No. 1-4 but they did not turn up.
On careful perusal of aforesaid documents and materials on record it is clear before us that Complainant alleged that he paid total sum of Rs. 14,40,000/- in favour of O.P No. 1 and all the Opposite Parties executed registered sale-deed in respect of the flat mentioned in the first schedule and second schedule and petition of complaint. On careful perusal of Xerox copy of deed of conveyance (annexure A). We find that all the Opposite Parties jointly executed the sale-deed in respect of aforesaid flat in favour of the Complainant.
It is the further allegation of the Complainant that inspite of execution of aforesaid sale-deed, aforesaid Opposite Parties not yet handed over the possession of the said flat in favour of the Complainant. On perusal of Xerox copy of cheque (annexure F) we find that O.P No. 1 gave a cheque amounting to Rs. 14,40,000/- in favour of the Complainant and as per return memo said cheque was not encashed in favour of the Complainant due to fund insufficient.
So, it is clear before us with reference to the annexure F and annexure G that O.P No. 1 was agreed to refund the sum of Rs. 14,40,000/- and by this conduct he himself established that he has no intention to hand over the vacant possession of the aforesaid flat in favour of the Complainant. No reason came before us as to why the Opposite Parties did not hand over the vacant possession of the aforesaid flat in favour of the Complainant.
On careful perusal of petition of complaint and other materials on record it is clear before us that Complainant is the consumer and Opposite Parties are the service provider.
It is also clear before us that within the period of limitation Complainant filed the present case before this Commission and this Commission has sufficient jurisdiction to entertain the aforesaid complaint.
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Having regard to the aforesaid discussion it is clear before us that the aforesaid act of O.P No. 1-4 are nothing but deficiency in service. Accordingly Complainant is entitled to relief as per his prayer.
In the result present case succeeds.
Hence ,
It is ordered,
That the present case be and the same vide no. C.C./366/2022 is allowed ex-parte against the O.P No. 1-4 with cost of Rs. 5,000/- to be paid by O.P No. 1-4 in favour of the Complainant.
O.P No. 1-4 jointly or severally are directed to hand over the vacant possession of the aforesaid flat which has been specifically mentioned in the first schedule and second schedule of the petition of complaint positively within 45 days in complete form or O.P No. 1-4 jointly or severally are directed to refund Rs. 14,40,000/- in favour of the Complainant along with interest @ 10% p.a. from the date of execution of the deed i.e. from 20/12/2019 to till the date of actual payment.
O.P No. 1-4 jointly or severally are directed to pay Rs. 2,00,000/- as compensation in favour of the Complainant positively within 45 days from this date.
O.P No. 1-4 are further directed to comply the aforesaid directions within the specified date failing which Complainant shall have liberty to put this order into execution and O.P No. 1-4 are liable for all the consequences.
Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
