West Bengal

South 24 Parganas

CC/221/2015

1. Sri Prithwis Mukherjee, S/O Dr. P. K. Mukherjee. - Complainant(s)

Versus

Sri Malay Chatterjee, S/O Sri M.N. Chatterjee. - Opp.Party(s)

Timir Baran Sinha.

31 Aug 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _221_ OF ___2015__

 

DATE OF FILING : 11.5.2015                  DATE OF PASSING JUDGEMENT: _31.08.2015__

 

Present                         Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :        1. Sri Prithwis Mukherjee,s/o Dr. P.K. Mukherjee

2.   Smt. Susmita Mukherjee,w/o Sri Prithwis Mukherjee of  93, R.N. Das Road, Dhakuria, P.S. Garfa, Kolkata – 31.

 

-VERSUS  -

 

O.P/O.Ps                            : Sri Malay Chatterjee,s/o Sri M.N. Chatterjee  , 25, Rathin Banerjee Lane, P.S. Kasba, Kolkata – 34, the Sole Prop. Of  M/s Metromech Construction

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant case has been filed by the complainant under section  12 of the C.P Act, 1986 with allegation of deficiency in service against the O.P.

In a nutshell the case of the complainants is that   one Smt. Renuka Bala Dasi had entered into a development agreement with the O.P on 19.4.2004 for construction of multi storied building situated at 93, R.N Das Road, Dhakuria, P.S. Garfa, Kolkata – 31 . She also had given a General Power of Attorney in favour of the O.P.

The complainants decided to purchase a flat and entered into an agreement for sale with the O.P on 26.6.2006  for purchasing the flat  on the top  floor north west side of the said building a flat measuring 600 sq.ft super built up area from the developer’s allocation together with undivided proportionate area  at a consideration of Rs.6,00,000/-, out of which, complainants already paid Rs.5,50,000/- and ready to pay the balance Rs.50,000/- at the time of registration . The O.P has put the complainants in possession of the flat on 1.8.2009  but inspite of several requests followed by legal notice he did not execute and register the deed of conveyance in favour of the complainants. Hence this case with a prayer for direction upon the O.P to execute and register the deed of conveyance in favour of the complainant and other reliefs.

 Inspite of service of summon upon the O.P, he did not appear and did not contest the case. It appears that O.P is reluctant to proceed with the instant case and as such we have no other alternative but to proceed exparte against him.

 

 

 

After scrutinizing four corners of the case following points are in limelight :

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.P or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

                                                            Decision with reasons

Point no.1:-   In the instant case the complainant paid to the O.P(developer) Rs.5,50,000/- out of total consideration of Rs.6,00,000/- for purchasing the suit flat as per agreement for sale entered into between the parties . Therefore, the complainant is a ‘consumer’ and the O.P is ‘service provider’ under section 2(1)(d)(ii) and 2(1)(o) of the C.P Act, 1986 and the case is adjudicable by this Forum.

Thus the point no.1 is discussed and the same is in favour of the complainants.

From the record it is crystal clear that the complainants have entered into an agreement for sale on 26.6.2006 with the O.P the developer , and paid Rs.5,50,000/- out of Rs.6 lac to the O.P  and physical possession of the flat was also handed over to them by the O.P. But the O.P has not executed and registered the deed of conveyance till the date of hearing of the instant case. Therefore, complainants run from pillar to post for getting the deed of conveyance executed and registered but all in vein. The O.P did not appear even after valid service of summon and this Forum has no other alternative but to consider all the documents submitted by the complainants as unchallenged piece of testimony and also as true documents. Therefore, keeping in mind the decision of Hon’ble National Commission ,  we have no hesitation to hold that the O.P is duty bound to execute and register the deed of conveyance in respect of the flat in question. But he has not done the same and thus the O.P has committed deficiency in rendering services towards the complainant/consumer and complainants have to suffer mental agony , harassment and complainants have no other alternative but to pay excess amount of stamp duty for escalation of cost of registration fee and  the O.P is liable to aptly compensate the complainants  for their inaction and deficiency in service and duty bound to execute and register the deed of conveyance in respect of the suit flat in favour of the complainants.

Thus the point nos. 2 and 3 are discussed and both are in favour of the complainant and the complainants’ case succeeds.

 

 

 

 

 

 

 

Hence,

                                                Ordered

That the case be and the same is allowed exparte with cost.

The O.P is directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants as per agreement for sale  within 45 days from this date and complainants are directed to pay Rs.50,000/- towards balance consideration money to the O.P on the date  of execution and registration of the flat in question.

The O.P is  directed to pay to the complainants  Rs.1 lac  towards compensation and Rs.5000/- towards litigation cost within 45 days from the date of this order, failing which, the O.P will pay Rs.100/- per diem to the complainants till the date of full compliance of this order.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                              

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

                                                Ordered

That the case be and the same is allowed exparte with cost.

The O.P is directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants as per agreement for sale  within 45 days from this date and complainants are directed to pay Rs.50,000/- towards balance consideration money to the O.P on the date  of execution and registration of the flat in question.

The O.P is  directed to pay to the complainants  Rs.1 lac  towards compensation and Rs.5000/- towards litigation cost within 45 days from the date of this order, failing which, the O.P will pay Rs.100/- per diem to the complainants till the date of full compliance of this order.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member