DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __334_ _ OF ___2014
DATE OF FILING : 30.7.2014 DATE OF PASSING JUDGEMENT:19 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Sri Sankha Jyoti Maitra, son of late Bibek Jyoti Maitra, ( Amrita Vihar Apartments Block-B, Flat-3/3, Garia Main Road, Kamal Gazi, P.O Narendrapur, P.S Sonarpur, Kolkata-103).
O.P/O.Ps : 1. Sri Rajib Goswami, son of Biplab Goswami, C/o Goswami Enterprise, Church Lane, P.O & P.S Baruipur, Kolkata-144, Dist. South 24-Parganas.
2. Smt. Rupa Roy, wife of Goutam Roy, P.O Ramgopapur, P.S Baruipur, South 24-Parganas, Pin-743387 , also at ICON, Baruipur Kulpi Road, P.O & P.S Baruipur, Kolkata-144.
3. Sri Alok Kumar Das, son of late Krishna Chandra Das of Krishna Apartment, 1st floor, Flat no.-1, Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
4. Sri Ashoke Kumar Das, son of late Krishna Chandra Das of Krishna Apartment, 1st floor, Flat no.-1, Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
5. Sri Sandeep Chatterjee, s/o late Satyendra Nath Chatterjee, Proforma O.P-1
6. Smt. Jui Chatterjee alias Ruchira Chatterjee ,wife of Sri Sandeep Chatterjee, Prororma O.P-2.
7. Sri Saikat Ganguly, son of late Timir Ganguly of Krishna Apartment, 3rd floor, Flat no.-1, Uttar Ukil Para 1st Lane, P.O & P.S Baruipur, Kolkata-144. Proforma O.P-3.
8. Sri Baidya Nath Mitra, son of late Kali Charan Mitra,Proforma O.P-4
9. Ms. Indrani Mitra, wife of Shri Baidya Nath Mitra, Proforma O.P-5
Both of Krishna Apartment, 2nd floor, Flat no.-3, Uttar Ukil Para 1st Lane, P.O & P.S Baruipur, Kolkata-144.
10. Sri Prasanta Das, son of late Krishna Chandra Das at Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144.
11. Smt. Sila Nandi
12. Smt. Madhuri Dutta
13. Smt. Padma Bhowmik
14. Smt. Pushpa Pal
15. Smt. Tripti Pal
16. Smt. Sanchita Sarkar, all daughters of late Krishna Chandra Das of Village Uttar Ukil Para, P.O & P.S Baruipur, Kolkata-144. Present Land owners/O.Ps.
17. Sri Rahul Roy, son of late Goutam Roy, P.O Ramgopalpur, P.S Baruipur, South 24-Parganas, Pin-743387.
18. Smt. Puja Roy, d/o late Goutam Roy , P.O Ramgopalpur, P.S Baruipur, South 24-Parganas, Pin-743387.
19. Sri Anupam Panda, son of Banabihari Panda of 25, B.K Roychowdhury Road, Chakraborty para, P.O & P.S Baruipur, South 24-parganas, Pin-144.
20. Miss Adrija Panda, d/o Sri Anupam Panda and latge Juine Panda, being minor , represented by her natural guardian and father Sri Anupam Panda, son of Banabihari Panda , of 25, B.K Roychowdhury Road, Chakraborty Para, P.O & P.S Baruipur, South 24-Parganas, Pin-144.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Inability to register the subject flat in favour of the complainant by the O.P/ developers i.e O.P nos. 1 and 2 has galvanized the complainant to file the instant case, alleging deficiency in service .
The facts leading to the filing of the instant case and as it transpires in the amended petition of complaint, may be epitomized as follows.
O.P nos. 1 and 2 are developers; O.P nos. 3,4 and 10 to 16 are legal representatives of original land owner ; O.P nos. 5 to 9 are flat owners of same apartment and O.P nos. 17 to 20 are legal representatives of Goutam Roy, the original Co-developers.
One sale agreement was executed on 8.12.2010 between the complainant and the O.P nos. 1 and 2 , whereby the said O.Ps agreed to sell a flat as succinctly described in schedule to the complaint to the complainant for a total consideration price of Rs.8,25,000/-. Complainant paid Rs.1 lac to the O.P/developers on 8.12.2010 and the O.p/developers assured him to deliver the possession of the subject flat within six months of the execution of sale agreement. Possession was also delivered to the complainant on 3.7.2011. Thereafter, also the complainant paid Rs.7,65,000/- to the said developers. The complainant took electricity from commercial sub-meter, as provided to him by the said developers. No Transformer is installed and, therefore, the complainant could not take domestic electric line to his flat. The said developers agreed to install transformer entirely at their own cost. Still, each flat owner including the instant complainant has paid Rs.15000/- ,totaling to Rs.1,8i0,000/- to the said developers to mitigate the cost of installation of transformer by them. But, the said developers have neglected to install the Transformer despite repeated requests made on behalf of the complainant and other flat owners. They have also neglected to register the sale deed in favour of the complainant with respect to the subject flat . The complainant has ,therefore, come up to this Forum with the filing of the instant case ,praying for passing an order directing the said O.Ps to register sale deed in his favour, to install transformer and to compensate the complainant . Hence, this case.
O.P-1 has been contesting the case by filing written statement, wherein it is averred that the O.P purchased a flat from original owner by a sale deed dated 27.1.2010. Thereafter, he sold away the said flat to the complainant and also delivered possession thereof to him. There is no provisions for installation of any transformer by him and he has no liability whatsoever for installation of the transformer. The case as brought by the complainant is false and frivolous and, therefore, the complainant is not entitled to get the relief as prayed for.
O.P-2 has also filed a separate written statement, wherein it is contended by her that late Goutam Roy was her husband and he was co-developer of O.p-1. After his demise, she was admitted as co-developer. She has been always ready and willing to register the flat in favour of the complainant ; but the complainant has all along neglected to get it registered in his favour and, therefore, the registration was delayed. She has no knowledge about any dispute relating to installation of transformer in the flat. The complaint is frivolous and vexatious and ,therefore, it should be dismissed in lemini with cost.
Written statement has also been filed by the O.P nos. 5 to 9 who have supported the case of the complainant.
No other O.Ps have turned up to contest the case and as such the case is heard exparte against them.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by both the parties. Questionnaires, replies and BNAS filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the complainant and the contesting O.Ps. Perused the petition of complaint, written statement and other documents filed on record. Considered all these.
Only two questions need determination by this Forum. The two questions are - (1) whether the O.P/developers are bound to install the transformer in the subject flat and (2) whether they are liable to register the deed of conveyance in favour of the complainant with respect to the subject flat.
As regards first point, as mentioned just above, it has been argued on behalf of the O.P/developers that the developers are not bound to install any transformer in the subject flat inasmuch as there is no provisions in the sale agreement. On the other hand, it has been contended on behalf of the complainant that there is a provision for installation of the transformer in the sale agreement and that the cost of installation of transformer is included in the consideration price of the flat . So, according to the submission of Ld. Lawyer appearing for the complainant, O.P/developers i.e O.P nos. 1 and 2 will have to install the transformer at the subject flat. Neglect of them to install transformer at the flat is a deficiency in service , as goes his submission. O.P-1 appears to be an acting developer and O.p-2, sleeping developer. But ,the conduct of O.p-1 appears to be very strange; he does not appear to be a straight forward person. He is found to be a crooked man. We feel compelled to pass such comment against him for the reason that he presents one thing in his written version and another thing in his evidence submitted on affidavit. In his written version, he has stated that he has purchased the subject flat by a sale deed dated 27.1.2010 and thereafter, he sold away the same to the complainant. He does not utter even a word in his written version to the effect that he executed a sale agreement dated 8.12.2010 in favour of the complainant. But, in his evidence he has divulged that he executed the agreement and also received consideration price from the complainant. This role of duplicity of O.p-1 is never desirable before a Court of law and ,therefore, we feel constrained to pass the aforesaid remark against O.P-1.
To begin with point no.1 just mentioned above, we know very well that a man is best known not by his externals ,but by his internals. The internal of a man is much reflected from his conduct and using this attribute, we will be able to know what the exact nature of a man is and what the exact nature of a thing is.
In the instant case, O.p-1 has all along harped on the same but one thing that there is no provision of installation of transformer at the subject flat and that he is ,therefore, not bound to install such transformer there. A copy of sale agreement dated 8.12.2010 has been filed on record by the complainant. It is mentioned in that sale agreement in the last line thereof that the developers have received Rs.20,000/- for electric meter. Except this, there is no other thing written in the said agreement about the installation of electric transformer at the subject premises. But, we have to proceed ahead with our search to find out what the exact truth of the matter is. The complainant has placed some documents of electric department (WBSEDC). The WBSEDC submitted a quotation to O.P-1 on 27.4.2013 and thereby directed the O.P-1 to deposit Rs.2,11,531/- . O.P-1 also made a deposit of Rs.1000/- as earnest money and this has also been mentioned in that quotation of WBSEDC. Now to see, for what purpose, this quotation was given to O.P-1. With the quotation is annexed an estimate of the said electric company. It is clearly mentioned in that estimate that quotation is “For erection of 1 x 63 KVA Distribution Transformer and associated work for effecting new service connection to the premises of Sri Rajib Goswami at Ukilpara under the jurisdiction of Baruipur Customer Care Centre”. From this document, it is clear that the O.P-1 made an application before the electric department for installation of transformer at the flat of the complainant and the electric department also delivered quotation to him, asking him to deposit the quotation money. Question arises: why did O.p-1 submit application before the electricity department for installation of transformer at the subject flat ,if he had no obligation in terms of the agreement to do so. These facts establish and establish only that the developers including O.P-1 agreed to install transformer at the subject flat and, therefore, he received Rs.20,000/- or Rs.15000/- ,whatever it be , from the complainant for this purpose and this payment is acknowledged in the sale agreement. Now, it is found that O.P-1 has reneged from his earlier promise; he has neglected to install transformer at the subject flat in terms of his agreement. We have already stated that falling back from earlier promise is the characteristic of O.P-1.
Be that as it may, the O.P/developer is bound to install the transformer in the subject flat in terms of their agreement. They cannot avoid their obligation under any pretext.
Now comes up the question whether there is any laches on the part of the O.P/developers for not registering the subject flat in favour of the complainant in terms of the agreement. We have already discussed the conduct of the O.P/developers and, therefore, we are reluctant to say any more upon their conduct. However, we do give out that the O.P/developers will have to register the deed of conveyance in favour of the complainant in respect of the subject flat.
In so far as the registration of the flat is concerned, O.P nos. 3,4 and 11 to 16 , being the legal representatives of the original land owners have liability to effect such registration and, therefore, the cause of action is sustained against them to this extent only. There is no cause of action against O.P nos. 17 to 20 ,who are legal representatives of Goutam Roy,the original co-developer. After demise of Goutam Roy, his wife i.e O.P-2 has been admitted as co-developer by the then land owner and, therefore, the other legal representatives of Goutam Roy i.e O.P nos. 17 to 20 cannot be made liable in any way for any transaction relating to the business of the developers. The case ought to be dismissed against them i.e O.P nos. 17 to 20. It also deserves dismissal against O.P nos. 5 to 9 for want of cause of action.
In the result, the case succeeds in part .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 2 with a cost of Rs.10,000/- and decreed exparte against O.P nos. 3,4 and 10 to 16 without any cost.
The case is dismissed against the rest of the O.Ps without any cost.
The O.P nos. 1, 2,3,4 and 10 to 16 are directed to effect a deed of conveyance relating to the subject flat in favour of the complainant within a month of this order. O.P nos. 1 and 2 are also directed to install electric transformer at the subject premises within the aforesaid period i.e one month from this order, failing which, they will have to pay a sum of Rs.10 lac as compensation to the complainant and the complainant is at liberty to recover the said amounts by execution of this order through the machinery of this Forum.
Let a free plain copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
