West Bengal

South 24 Parganas

CC/602/2014

Sri Dharani Kumar De, S/O Sachindra Nath De. - Complainant(s)

Versus

Sri Sekhar Roy, S/O S.K. Roy Proprietor of Tower and Tiles. - Opp.Party(s)

Manab Kr. Sarkar.

10 Aug 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

C.C. CASE NO. _602_ OF ___2014_____

 

DATE OF FILING : 12.12.2014     DATE OF PASSING JUDGEMENT:  10.8.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

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

                                                                             

COMPLAINANT             :   Sri Dharani Kumar De, s/o Sachindra Nath De of Flat -08(3^rd Floor), 78, N.S. Road, Rajpur, P.S. Sonarpur, Kolkata – 149.

 

-VERSUS  -

 

O.P/O.Ps                            :    Sri Sekhar Roy,s/o Sri S.K. Roy , Prop. Of Tower & Tiles of

                                                Flat-8,(2^nd Floor), at Anukriti ,4/2, Baishnabghata Bye Lane, P.S.

Patuli, Kolkata – 47.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986.

            This application under section 12 of the C.P Act 1986 has been filed by the complainant on the ground that in the month of November, 2011 complainant approached the O.P for getting one residential flat at Rajpur area and O.P also offered one flat about 900 sq.ft super built up area in the newly constructed building at 78, Netaji Subhas Road, Rajpur, P.S. Sonarpur, Kolkata – 149 . It was agreed between the parties that total consideration money will be Rs.13 lacs and complainant paid Rs.20,000/- by cheque no. 253011/14 dt.5.11.2011 as booking money. Thereafter on demand of the O.P the complainant again paid Rs.20,000/- on 19.12.2011 and Rs.4,60,000/- on 12.3.2012 by two account payee cheques vide nos. 551302 and 55580210 respectively , drawn on Allahabad Bank. Thereafter on 16^th day of March, 2012 one Memorandum of agreement was signed between the parties which is annexed as annexure A. Complainant already paid full and final amount of Rs.13 lacs and the O.P handed over possession and issued possession letter which is annexed herewith. It has further stated that individual meter has already            been installed in the month of September, 2013 which is annexure C but inspite of several requests the O.P  did not execute and register the deed of conveyance in favour of the complainant and his daughter namely Mumpy De. Hence, this case with a prayer for registration of the flat in dispute and further prayer to complete the incomplete works of the said premises, compensation of Rs.40,000/- and litigation cost .

            The O.P is contesting the case by filing written statement  and has denied all the allegations leveled against them.

            It is the main contention of the O.P that the land owners Sri Debdas Ghosh and Sri Tapash Ghosh have not been impleaded who are necessary parties to execute and register the deed of conveyance. It has further stated that complainant is well aware in view of Memorandum of Agreement that Debdas Ghosh and Tapsh Ghosh are the owners of the property. It has also claimed by the O.P that due to delayed payment complainant has to pay interest @18% p.a on Rs.2 lacs for two months and 5 days as per clause 3  of the Memorandum of Agreement. This O.P has admitted that possession of the flat has already been given to the complainant on 7.10.2012. But complainant did not pay any interest on delayed payment. The O.P also denied that he did not complete the building work and neglected security of the said building and on the contrary O.P has stated that he has already completed the building in terms of the sanctioned plan and building is not exposed to threat and danger. It has strongly claimed that the complainant has not yet paid entire consideration money and balance money is still lying due.

            Points for decision is whether the O.P/developer acted any deficiency in service or unfair trade practice by not disclosing the fact regarding the registration matter.

                                                            Decision with reasons

            From the admitted documents i.e. Annexure D , the possession letter, we find that in the written version this O.P has admitted the same regarding annexure B. So, this annxure B is a vital document which clearly suggests that on one hand complainant accepted the possession with full satisfaction, and on the other hand this O.P developer delivered possession on 2.10.2012 after satisfying the terms of the agreement, which was required to be complied by the complainant. So, this possession letter is considers as a Vise versa, because on one hand complainant has given full consideration money in terms of the agreement and on the other it will be considered that complainant accepted  the possession letter with full satisfaction and this document has been filed by the complainant bearing the signature of the O.P and O.P has admitted the same by filing written version.

            Now the question is whether complainant was aware regarding the registration matter by the land owners and whether the developer /O.P has disclosed before filing the case that land owners are required for registration matter or at the time of Memorandum of Agreement, since he has no registered power of attorney.

            We have perused the page no.5 and finds that it has categorically mentioned that the registration of the flat has to be completed by adding owners  as a vendor therein within six months from the date of possession of the concerned flat. So, it was within the knowledge of the complainant that until and unless the land owners whose names are reflected in the agreement dated 16.3.2012 namely Sri Debdas Ghosh and Sri Tapash Ghosh ,s/os of late Nilratan Ghosh by faith Hindu, by occupation-Business, residing at Abhay Doctor Lane, Baikunthapur, P.S. Sonarpur, Dist. South 24-Parganas are made parties, the registration cannot be completed.

            In this telling circumstances, this case is hopelessly bad for mis-joinder of necessary parties in relates to the registration. It may be mentioned here that after adding the owners as O.P nos. 2 and 3 that Debdas Ghosh and Tapash Ghosh and after serving summon if they were unwilling to register the deed of conveyance, then definitely we can arrange for registration of the flat but until and unless the owners are made parties in this case, how the registration matter will be completed.

            In this sorry state of affairs we find that we cannot say the developer O.P has made any deficiency in service at least for registration matter because Memorandum of Agreement clearly disclosed the same as we have discussed above. Secondly, complainant has miserably failed to prove the incomplete work by appointing any building expert in terms of the agreement. It is true that complainant is in possession and deed of conveyance is required to be made but at this stage due to latches of the complainant we are unable to direct our machinery of the Forum to register the deed of conveyance since land owners were not made party in this case inspite of the fact that it has specifically mentioned in the Memorandum of Agreement dated 16.3.2012 filed by the complainant at page 5 in middle portion that the registration of the flat has to be completed adding owners as a vendor therein within six months from the date of possession of the concerned flat. We find that possession was given on 2.10.2012. So, it was the duty of the complainant to come before this Forum thereafter adding the owners of the land who are also party in the Memorandum of Agreement.

 

 

 

 

 

 

            With that observation, it is

                                                                                    Ordered

That the case is disposed of with a liberty to the complainant to file afresh in the light of the observation made hereinabove since complainant already is in possession and paid the consideration money whatsoever in terms of the agreement and only on technical ground we are unable to pass any effective order ,that is why, liberty is given to the complainant to file afresh within three months from the date of this order because the cause of action is still continuing when registration has not yet been completed.  

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

Ordered

That the case is disposed of with a liberty to the complainant to file afresh in the light of the observation made hereinabove since complainant already is in possession and paid the consideration money whatsoever in terms of the agreement and only on technical ground we are unable to pass any effective order ,that is why, liberty is given to the complainant to file afresh within three months from the date of this order because the cause of action is still continuing when registration has not yet been completed. 

Let a plain copy of this judgement be handed over to the parties free of cost.

 

 

 

Member                                                           Member                                                           President