DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 148/2018

Date of Filing:                         Date of Admission:                      Date of Disposal:

   03.04.2018                                       13.04.2018                                   01.09.2022

P R E S E N T                       :-Shri Debasis Mukhopadhyay…………President.

                                                :-Smt. Monisha Shaw …………………. Member.

JUDGMENT/FINAL ORDER

This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to redress his grievance till filing of this complaint.

The Complainant stated that she used to reside at 28, Italgacha Road, 1 No. Airport Gate, Post and P.S. Dum Dum, District North 24 Parganas, Kolkata – 700028. The O.P. No. 2 and 3 the owner of ‘A’ scheduled property all that piece and parcel of land measuring about 2 Cottah 2 Chittak 34 sq.ft., more or less, situated at Dum Dum Municipality, Ward No. 6, Holding No. 5, Italgacha Road under Mouza – Sultanpur, J.L. No. – 10, Khatian No. 33, Dag No. 2800, 2794, R.S. Dag No. 2794, 2794/3860, 2794/3861, 2794/3862, Re. Sa. No. – 148, Touzi No. – 172, within P.S. – Dum Dum, Kolkata – 700079, District – North 24 Parganas within the limits of butted and bounded by

ON THE NORTH                  -           Plot No. 5

ON THE SOUTH                   -           Municipal Road

ON THE EAST                      -           Land of Dag No. 2793

ON THE WEST                      -           Plot No. 3.

and O.P. No. 1 is a developer and the Complainant entered into an agreement with O.P. No. 1 as developer and O.P. No. 2 and 3 as the owner to purchase residential flat being no. A/1 measuring about 760 sq.ft. super built up area at first floor together with proportionate share of

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the land of the said multi-storied building over the land measuring about 760 sq.ft. super built-up area at 1^st Floor of the building along with proportionate share of land constructed over the land measuring about 2 Cottah 2 Chittak 34 Sq.ft. situated at Dum Dum Municipality, Ward No. 6, Holding No. 5, Italgacha Road under Mouza – Sultanpur, J.L. No. – 10, Khatian No. 33, Dag No. 2800, 2794, R.S. Dag No. 2794, 2794/3860, 2794/3861, 2794/3862, Re. Sa. No. – 148, Touzi No. – 172, within P.S. – Dum Dum, Kolkata – 700079, District – North 24 Parganas.

SCHEDULE ‘C’ OF THE SUIT PROPERTY

1. Path passage in the building / premises other that reserve by the developer and owners for its own for any purpose or marked by developer / owners.
2. Entrance lobby, staircase landing of flooring.
3. Steel / wooden windows with glass fittings in the lobby and staircase.
4. Electrical wiring and lighting the staircase and landing and roof.
5. Electrical installation with main switch and meter and space required thereof.
6. Water pump with motor and motor room if provided.
7. Lift.
8. Deep tubewel for 24 hours water supply. As per drawing from water supply from Municipality.
9. Overhead tank with distribution pipe therefrom connecting to different unit.
10. Water wastes and sewerage pipe from unit to drain and sewerage common to the building.
11. Septic tank.
12. Boundary wall of the premises.
13. Roof of the premises.

As per said agreement for sale has been made for the purpose of purchase of ‘B’ and ‘C’ scheduled property on 11/01/2016. The said agreement of sale has been made by and between the Complainant and the Opposite Parties. The total consideration for the purchase of ‘B’ and ‘C’ scheduled suit property has been fixed of Rs. 19,00,000/- (nineteen lakhs) only.

As per agreement for sale, Complainant paid Rs. 7,00,000/- (seven lakhs) only by way of two cheques being cheque no. 840630 dated 21/12/2015 and cheque no. 840632 dated 11/08/2016 out of total consideration money in favour of O.P. No. 1 who has been empowered by the original owner, i.e. O.P. No. 2 and 3 on the strength of said development agreement dated 06/06/2012.

The Complainant further stated that she was ready to pay the balance consideration money of Rs. 12,00,000/- in favour of the O.P. No. 1 as per terms and conditions and the Complainant requested to the O.P. to register the necessary sale deed in respect of ‘B’ schedule flat in favour of the Complainant on receipt of the balance consideration amount.

The Complainant’s issued an Advocate’s letter on 16/02/2018 to O.Ps to receive the balance consideration amount and to execute and register the deed of sale in favour of the Complainant of the flat in question.

Inspite of receiving the letter the O.Ps did not execute and register the deed of sale the flat in favour of the Complainant till today.

Finding no other alternatives filing the instant case. The Complainant sending another notice on 20/03/2018.

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Prayer of the Complainants:-

1. The OPs are directed to execute and register the deed of sale in respect of ‘B’ and ‘C’ schedule property out of ‘A’ schedule property within the stipulated period.
2. O.Ps failed and neglected to comply the direction of the Ld. Court in that event the deed of sale may be registered through Ld. Forum.
3. For an order thereby restraining the O.Ps by an order of injunction from transferring or alienating the suit property or any part thereof to any third party permanently and temporarily till disposal of the instant case and an order of add-interim temporary injunction be also passed in similar manner.
4. Any other relief / reliefs to which the Complainant is entitled under law equity natural justice be award.
5. Cost of proceeding.

O.Ps had received the notice but did not appear so the case do run ex-parte against the O.P. dated 03/03/2021 vide order no. 09.

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of the materials along with the supporting affidavit related to documents available in the case record as well as hearing of argument by the Ld. Advocate for the Complainant, it is revealed that the Complainant deposited amount of Rs. 7,00,000/- out of Rs. 19,00,000/- to the OP No. 1 by two cheques as mentioned. Here the status of the OP No. 1 is service provider and the Complainant being a customer of the OPs, so the Complainant becomes a consumer as per Consumer Protection Act, 1986.

The Complainant resides at at 28, Italgacha Road, 1 No. Airport Gate, P.O. & P.S. – Dum dum, District – North 24 Parganas, Kolkata – 700028 and the OP No.2 is situated within the District of North 24 Parganas and the claimed amount does not exceed the pecuniary limit of this Commission. Therefore, this Commission has ample power to try this case.

We have perused the complaint as well as Examination-in-Chief on affidavit filed by the Complainant. We have perused the copy of the money receipt which was provided by the O.P members with the supporting affidavit and other documents filed by the Complainant. On perusal of the aforesaid materials it appears that the Complainant paid Rs. 7,00,000/- on 21/12/2015 and 11/08/2016 respectively.

Since the O.Ps did not hand over the possession to the Complainant. Complainant repeatedly request to handover the possession  after receiving the balance consideration amount of Rs. 12,00,000/- though the Complainant was ready to pay the balance consideration amount. As such there is deficiency in.

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Considering the fact and circumstances as well as nature and character of this case, the following points are necessarily come out for consideration to reach just decision of the case:-

1.  Is the Complainant a consumer U/s 2(1)(d)(ii) of the CPC Act, 1986 (as amended up to date).
2. Has this Commission jurisdiction to entertain the instant case ?
3. Has the OP any deficiency in service as alleged by the Complainant?
4. To what other reliefs the complainant is entitled?

On perusal of the materials along with supporting affidavit related to documents available in case record as well as hearing of arguments by the Ld. Advocate for the Complainant, it reveals that the Complainant paid Rs. 7,00,000/, out of Rs.19,00,000/ the total consideration amount.

The status of the Complainant consumer as per provision laid down U/s 2(1)(d)(ii) of the C.P.C. Act, 1986 (as amended up to date).

The Complainant residing at 28, Italgacha Road, 1 No. Airport Gate, Post and P.S. Dum Dum, District North 24 Parganas, Kolkata – 700028. The Opposite Parties are i) SRI SUSANTA KUMAR GHOSH, S/o Not known, Proprietor of M/s. Suman Construction residing at 27B, Tarun Sengupta Sarani, P.O. – Italgacha, P.S. – Dum Dum, District – North 24 Parganas, Kolkata – 700079 at present residing at “Binapani Bhavan” (Top Floor), 106, Italgacha Road, P.O. & P.S. – Dum Dum, Kolkata – 700028, ii) SRI BISWANATH KUNDU and iii) SRI SIBU KUNDU No. 2 & 3 both are son of Dasarath Kundu, both are residing at 5, Italgacha Road, P.O. – Italgacha, P.S. – Dum Dum, District – North 24 Parganas, Kolkata – 700079.

We have perused the complaint filed by the Complainant. We have perused the copy of the money receipt along with the supporting affidavit, other documents filed by the Complainant. On perusal of the aforesaid material, it appears that the Complainant paid Rs. 7,00,000/-, out of total consideration amount of Rs. 19,00,000/- and after receiving the said amount the OPs did not delivered the suit property (schedule ‘B’) and did not register the said property after receiving the balance consideration amount received.

The discussed point bears positive result. As such we are of the view that the Complainant is entitled to get registration done by the O.Ps after receiving the balance amount.

Thus, all the points are discussed accordingly.

Hence, for ends of justice

It is

Ordered

That the instant case being no. C.C. 148/2018 be and the same is allowed ex-parte against the OPs with cost. The Opposite Parties are directed to register the said flat within 03 (three) months from this date after receiving the balance consideration amount of Rs.12,00,000/- and after receiving the balance consideration amount the OPs are directed to hand over the possession.

The O.Ps are also hereby directed to get registration to the Complainant within 03 (three) months failing which the Complainant will be at liberty to put this decree into execution according to law.

Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.                                   

  Dictated & Corrected by me    

Member                                                                                                                      President

Member