West Bengal

StateCommission

CC/620/2018

Smt. Rupa Ghosh - Complainant(s)

Versus

Sri Ujjal Chakraborty - Opp.Party(s)

Mr. Barun Prasad, Mr. Subrata Mondal, Mr. Sovanlal Bera, Mr. P. K. Majumder

28 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
Complaint Case No. CC/620/2018
( Date of Filing : 21 Aug 2018 )
 
1. Smt. Rupa Ghosh
D/o Lt. Sadhan Chandra Roy Mukherjee, 303A, Vivekananda Road, 2nd Floor, P.S. - Maniktala, Kolkata - 700 006.
...........Complainant(s)
Versus
1. Sri Ujjal Chakraborty
S/o Lt. Sukumar Chakraborty, 303A, Vivekananda Road, 3rd Floor, P.S. - Maniktala, Kolkata - 700 006.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. AJEYA MATILAL PRESIDING MEMBER
 HON'BLE MRS. SOMA BHATTACHARJEE (BASU) MEMBER
 
PRESENT:Mr. Barun Prasad, Mr. Subrata Mondal, Mr. Sovanlal Bera, Mr. P. K. Majumder, Advocate for the Complainant 1
 
Dated : 28 Nov 2022
Final Order / Judgement

Hon’ble Mr. Ajeya Matilal, Presiding Member

The complainant, Rupa Ghosh filed this complaint case against one Ujjal Chatterjee u/s 17 of C.P. Act, 1986 praying for direction upon the OP to execute a deed of conveyance in favour of the complainant, litigation costs of Rs. 50,000/-, compensation to the tune of Rs. 10 lakhs for physical harassment and mental agony and punitive damages of Rs. 55 lakhs payable to the Government Legal Aid Services.

          The fact of the case is in short like that the complainant was in search for one residential accommodation. He came to know that the OP being owner of the piece and parcel of land measuring about 3 cottahs and 27 sq. ft. at the premises no. 303 A Vivekananda Road, Kolkata- 700006 started construction over the land in accordance with the building plan sanctioned by KMC vide sanctioned plan no. 2013020037 dt. 17.02.2014. The OP agreed to sell scheduled flat to the complainant for consideration of Rs. 27 lakhs and entered into an agreement for sale on 16.12.2014. As per the terms of the agreement the OP shall complete the construction of the flat and deliver possession of the flat within 18 months in a habitable condition. The complainant paid Rs. 22 lakhs from his funds to the OP by cheque but the OP did not issue any money receipt against such payment. The complainant paid the said sum from her account no. 0095010511790 of Bank of India and entire amount of payment will be reflected in the bank statement. After receiving the said amount the OP delivered possession of the flat to the complainant in the month of September, 2017 and since then the complainant has been residing in the said flat. The OP, a vendor cum developer resided in the said building, so, a close relationship developed between the parties. The wife of the OP became ill and was admitted in a nursing home. The OP requested the complainant for financial assistance and demanded the balance consideration amount of Rs. 5 lakhs. The complainant paid the same in cash to the OP, but the OP did not issue any money receipt against such payment in spite of requests from the complainant. The OP assured to execute a deed of conveyance in favour of the complainant after recovery from illness of the wife of the OP. On 22.05.2018 the complainant received a legal notice from the OP through his Ld. Advocate Uditendra Mukherjee wherefrom it appeared that a complainant was residing in the flat in question as a licensee and the payment was received by the OP only for internal decoration and he requested the complainant to vacate the flat. The complainant being perplexed with the conduct of the OP sent a legal notice to the OP through her advocate on 22.06.2018 raising objection against the contents of the said letter. In reply the complainant stated that nowhere in the agreement for sale he was defined as a licensee. It is denied that the complainant paid the said amount for internal decoration as alleged. The complainant alleged that there is deficiency in service in respect of sale of the flat. After receiving the entire consideration amount, the OP totally denied the identity of the complainant as a purchaser. According to the complainant that it was nothing but a deceptive trade practice. According to the complainant it was nothing but a deceptive trade practice. The cause of action of this case arose on 16.12.2014 being the date of execution of agreement for sale, on 22.05.2018 being the date of legal notice whereby the OP denied as a purchaser the complainant as a purchaser and lastly on 28.06.2018 being the date of reply to such legal notice.

          The OP initially contested the case by filing a W.V denying material allegations of the complainant except the matters which are matters on record. The OP has a good relation with one Debasish Ghosh being an employee of the KMC holding a high post there. Sri Ghosh introduced the complainant to the OP. On good faith OP signed on the said “agreement for sale” presuming that the said agreement was for leave and license in respect of flat in question. The OP is the owner of the property in question and not the developer or promoter. He constructed the building for his own purposes at the premises and sold some flats to overcome his financial stringencies. Complainant took the possession of the flat in question as a licensee at her instances and paid Rs. 22 lakhs through Banker’s Cheques. As the relationship between the parties was very good, so the complainant proposed the OP to execute a deed of conveyance in favour of the complainant at the market value of the property in question and as a result the parties agreed to execute such documents. It was settled that the then market value of the flat in question in the concerned area was @ 7000/- per Sq. ft. and the total measurement of the flat was 1000 sq. ft. So, the settled market value of the flat was 70 lakhs. The complainant undertook to prepare the agreement for sale in respect of the flat for a total consideration of Rs. 70 lakh and it was agreed that the balance amount would be paid at the time of execution and registration of the deed of conveyance and the complainant paid Rs. 22 lakhs as earnest money by cheques. The complainant thereafter prepared the agreement for sale on 16.12.2014 stating the fact that the total consideration money is Rs. 70 lakhs and deed of conveyance would be executed and registered within 18 months from the date of execution i.e. from 16.12.2014. As the Opposite Party has a good faith in the complainant. So the agreement was kept lying in the custody of the complainant. The Opposite Parties within the statutory period of 18 months delivered possession of the flat in question in favour of the complainant.  The Opposite Party requested the Complainant to pay the entire consideration money, but the complainant ill-behaved with the Opposite Party on various occasions. The complainant turned down the request of the Opposite Party to complete the process of sale and created a terrorising situation so that the Opposite Party might bow down to her pressure. The complainant reported the matter to the local Police Station, but unfortunately a molestation case was started. Finally on the second week of January 2019 the Opposite Party received the notice of the complaint case. However, the Opposite Party admitted certain averments made in the complaint. It is also alleged by the Opposite Party that the agreement for the sale dated 16.12.2014 is a fraudulent and manufactured document.

The points for considerations are:

(i) Is a Consumer?

(ii) Whether there is any deficiency on the part of the Opposite Party?

(iii) Is the Consumer entitled to reliefs as prayed for?

Decision with Reasons:

The Complainant adduced evidence. She adopted the complaint as her evidence in chief. The Opposite Party filed questionnaire and complaint gave replies to such questionnaires. But Opposite Party did not adduce any evidence on his behalf.

It appears from the written version that the Opposite Party admitted that there was an agreement for sale between the parties and he received Rs.22,00,000/- from the complainant. It is also an admitted position that the possession of the flat in question is also delivered to the complainant.  We examined the agreement for sale dated 16.12.2014. It appears from the body of the agreement that it is nothing but an agreement for out and out sale.  Our attention was drawn to the Bank Statement filed by the complainant wherefrom it appears that a major portion of the consideration money was paid to the Opposite Party. Now question arises whether the complainant paid Rupees five lakhs to the Opposite Party in cash as her last payment. It appears from Para 8 of the written version that the OP denied the contents of Paragraph No. 1 to 6 of the complaint and the OP did not admit anything beyond the record. But the complainant pays Rs.5,00,000/- in cash to the OP as her last payment has not been denied specifically by the OP. So the contents of Paragraph No. 8 of the Written Version tantamount to evasive denial. Although the OP No. 1 alleged that the complainant undertook to prepare an agreement for sale in respect of the flat in question for consideration of Rs.70,00,000/- to be paid at the time of execution of registration in respect of the deed of conveyance and the complainant paid earnest money to the tune of Rs.22,00,000/-, but nothing has been reflected to the effect in the agreement for sale dated 16.12.2014. There is nothing in the agreement to the effect that the complainant have to pay the balance amount of Rs.48,00,000/-. So it appears from the discussion that the complainant paid the entire consideration money as per agreement and the OP put him into possession of the said flat, but he did not execute and register any deed of conveyance. The OP did not adduce any evidence on his behalf to establish the defence case. Out attentions were drawn to the written correspondences made by both parties through their Ld. Advocates.

From the evidence on record it appears that the complainant is a consumer, she paid the entire consideration money. But the OP did not execute any deed of conveyance in her favour, although the possession of the flat was delivered to the complainant. So, there is deficiency in service on the part of the OP.

So, in our view the complainant has established her case and she is entitled to relief as prayed for.

So all the points are decided accordingly in the favour of the complainant. So the case succeeds.

Hence it is ordered

The CC Case is allowed ex parte against the OP with a litigation cost of Rs.30,000/-. The OP is directed to execute and register a deed of conveyance in respect of piece and parcel of one flat on the second floor at the south east portion measuring a super-built up area of 1000 sq. ft. at premises No. 303A, Vivekananda Road, Kolkata – 700006 under Police Station Maniktala in favour of the complainant within sixty days from the date of this order and pay compensation of Rs.2,50,000/- for mental agony and harassment suffered by the complainant, failing which it shall carry an interest @ 9% per annum on  the said amount from that day till realization of the entire amount. If this order is not complied with within the stipulated period, the complainant will be at liberty to put the order into execution through the machineries of this Commission.

 

 
 
[HON'BLE MR. AJEYA MATILAL]
PRESIDING MEMBER
 
 
[HON'BLE MRS. SOMA BHATTACHARJEE (BASU)]
MEMBER
 

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