Date of Filing: Date of Admission Date of Disposal:
05.07.2012 26.07.2012 31.08.2015
COMPLAINANT Vs. OPPOSITE PARTIES
1. Smt. Doly Dutta 1. Sri Nemai Das
W/O Sri Dilip Dutta S/O late Ujjal Mohan Das
273/1, Criper Road,
Konnagar, P.S. Uttarpara,
2. Sri Biswajit Dutta Dist. Hooghly.
S/O Sri Dilip Dutta
Of Barobahera, Naity Road 2. Sri Manimoy Das
P.S. Uttarpara, Hooghly S/O Late Tarapada Das
Kanaipur, P.S. Uttarpara
Dist. Hooghly.
P R E S E N T - Smt. Chandrima Chakraborty - Member
- Sri Nirmal Chandra Roy - Member
J U D G E M E N T
Interference of this Forum has been sought for by the Complainant contending gross negligence, deficiency in service and unfair trade practice in rendering necessary service towards the Complainant by the Opposite Parties.
In diminutive, the case of the Complaint, is that, the Complainant entered into an ‘Agreement’ on 06.08.2007, with the Opposite Party no. 2 who is the employee and the Power of Attorney Holder of the Developer Opposite Party No. 1 for delivering some portion of the property of the Complainant to the Opposite Parties for purpose of extension of the multistoried building and agreed to provide a shop room measuring of 150 sq. ft. and a residential flat measuring of 600 sq. ft. on the 4th floor @ Rs. 400/- only per sq. ft. to the Complainant. Believing the Opposite Parties the Complainant on good faith had allowed them to construct the said multistoried building on the portion of the Complainant. Accordingly the Opposite Parties had completed the said multistoried building by amalgamating the property of the Complainant with the property of them and has started to sell to the intending purchasers, but reluctant to deliver the said flat and the shop room to the Complainant as per the said ‘Agreement’ dated 06.08.2007.
Thereafter, the Complainant had repeatedly requested the Opposite Parties Developer to deliver the possession and also to execute and register the Deed of Conveyance, in respect of the said flat and the shop room in favour of the Complainant, but the Opposite Parties failed to do the same, what amounts to negligence and deficiency in service on part of the Opposite Parties and caused mental agony and harassment to the Complainant for which he had asked for compensation. Hence, this case is filed for seeking adequate redressal before this Forum.
Resisting the Complaint, the Opposite Party no. 2 filed Written Version for denying the contentions and all material allegations made by the complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case, the case is bad for non-joinder of necessary parties, is not maintainable and is barred by limitation.
The case, as a whole, stated by the Opposite Party No. 2 in crisp, is that, the Opposite Party had partly admitted the case of the Complainant that an ‘Agreement’ was executed and as per the said ‘Agreement’ dated 06.08.2007 the relevant flat is situated on the 3rd floor but not on the 4th floor. Moreover the Opposite Parties had already handed over the said shop room in favour the Complainant, but the Complainant had failed to pay the agreed consideration amount to the Opposite Parties. Though the Complainant himself failed to comply his part of obligation by paying the consideration amount within due time and became a defaulter, the Opposite Parties had denied any negligence or/ and deficiency in rendering service on their part and the Complainant is not entitled to get any relief as prayed for. Hence, the Opposite Party No. 2 prayed for dismissal of this case.
Despite proper service of the notice to the Opposite Party No. 1, the concern Opposite Party never appeared before the Forum to contest the case nor he had filed any ‘Written Version’ on his behalf or through any Ld. Advocate/Representative. Thus the Opposite Party No. 1 has relinquished his scope to refute the case. So, the instant case has been heard ex-parte against the Opposite Party No. 1.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that in spite of executing the ‘Agreement’ dated 06.08.2007 the Opposite Parties never handed over the possession of the said flat and shop room to the Complainant and also never executed and registered the Deed of Conveyance in respect of the same in favour of the complainant.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 2 and also critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocates of both the parties, and on critical appreciation of the case record, it is clearly evident that admittedly an ‘Agreement’ was executed by and between the complainant and the Opposite Parties on 06.08.2007, the photocopies of which was filed by the Complainant.
Manifestly it is evident from the said ‘Agreement’ dated 06.08.2007 that the Opposite Parties had agreed to deliver the 600 sq. ft. flat and the 150 sq. ft. shop room in favour of the Complainant and the Complainant also agreed to pay the consideration amount @ Rs. 400/- per sq. ft. only for 600 sq. ft. flat and 150 sq. ft. shop room which amounting to Rs. 3,40,000/- (Three lakhs forty thousand) only [850 sq. ft. (600 sq. ft. + 150 sq. ft.) x Rs. 400/-] in total.
The record reveals that both the Complainant and the Opposite Party No. 2 admitted the execution of the said ‘Agreement’ dated 06.08.2007 wherein in is specifically written that the Opposite Parties were/are agreed to deliver a flat of 600 sq. ft. on the 2nd floor and a shop room of 150 sq. ft. of the said multistoried building in favour of the Complainant within 18 months from the date of the said ‘Agreement’ dated 06.08.2007, in default the Opposite Parties shall have to pay a penalty of Rs. 300/- only per day to the Complainant and on the other hand the Complainant was is also agreed to pay the consideration amount @ Rs. 400/- only per sq. ft. to the Opposite Parties.
But the fact remains that after expire of the said scheduled period the Opposite Parties had/has failed to deliver the said flat and shop room, though the Opposite Parties claimed to have delivered the possession of the said shop room to the Complainant in the Written Version filed by the Opposite Party No. 2 but failed to produce any document or any scrap of paper to prove their such contention 0f delivering the possession where the Complainant strictly denied to get the same.
Now it is revealed from the photocopies of the documents filed by the Complainant that the Complainant had paid a sum of Rs. 80,000/- only by two cheques of the UTI Bank on 03.10.2007 and 15.10.2007 for which the Opposite Parties issued the ‘Money Receipt’ but admitted the non payment of the rest amount of consideration money to the Opposite Parties which the Opposite Party No. 2 alleged, but the Complainant specifically stated that he is always ready and willing to pay the balance consideration amount of Rs. 2,60,000/- only as per the said ‘Agreement’ dated 06.08.2007 and thus the Opposite Parties concerned are strictly liable to comply their part of obligations by delivering the actual physical possession and also to execute the Deed of Conveyance in respect of the said flat and shop room, in favour of the complainant, for which the said ‘Agreement’ dated 06.08.2007 was executed.
Thus, in view of the above findings we are inclined to hold that in the present state of affairs the prayer of delivering the actual possession and the execution of registration of the Deed of Conveyance should only be awarded in favour of the Complainant.
But now the dispute is that whether the Complainant is entitled to get the flat on the 4th floor as he claimed in his ‘Complaint’ filed before the Forum which the Opposite Party No. 2 strictly denied in his Written Version or not. It is distinctly revealed from the said ‘Agreement’ dated 06.08.2007 that the Opposite Parties were/are obliged to deliver the flat on the 2nd floor of the said multistoried building (specifically written as “TRITOLER FLAT” in the Para : 6 of the said ‘Agreement’ dated 06.08.2007). So, the Forum unanimously decide that the Opposite Parties are bound to deliver the 600 sq. ft. flat on the 2nd floor to the Complainant.
But though the Complainant is also made default in payment of consideration amount to the Opposite Parties and failed to produce any scrap of paper or document to show that he had approached the Opposite Parties to receive the payment as per the said ‘Agreement’ dated 06.08.2007, he is not entitled to get any compensation from the Opposite Parties.
Therefore, in light of the above analysis, we are inclined to hold that the Complainant has successfully proved his case and is entitled to get the relief as prayed for from the Opposite Parties and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party No. 2 and also allowed ex-parte against the Opposite Party No. 1 with cost of Rs. 2,000/- only payable by both Opposite Parties within one month from the date of this ‘Order’.
That the Complainant is directed to deposit a sum of Rs.2,60,000/-(Two lakhs sixty thousand) only in total to the head of the ‘President’ of the DCDRF, Hoogly at Chinsurah within one month from the date of this ‘Order’, in default the Complainant is bound to pay the interest @ 9% p.a. from the date of filing this case till its realization.
That the Opposite Party no. 1 & 2 jointly and severally are directed to hand over the actual vacant possession of the said flat of 600 sq. ft. on the 2nd floor and shop room of 150 sq. ft. on the Ground floor, within a period of one month and fifteen days from the date of this ‘Order’ and thereafter shall have the liberty to withdraw the said amount.
That the Opposite Party no. 1 & 2 jointly and severally are directed to execute and register appropriate Deed of Conveyance, in favour of the Complainant in respect of the said flat and shop room within a period of one month and fifteen days from the date of this ‘Order’, failing which the complainant has liberty to get the said two flats registered through the Forum.
In the event of non compliance of any portion of the executable order by any of the Opposite Parties within the above specified period, the said O.P./s shall have to pay a sum of Rs. 300/- only per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.P./s to the State Consumer Welfare Fund.
Let the copy of the order be supplied to the parties free of cost when applied for.
