DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 71/2015
Date of Filing: Date of Admission Date of Disposal:
28.01.2015 11.02.2015 30.06.2015
PETITIONER = Vs. = O.Ps.
Smt. Bhagirathi Basu 1. Srimatya Shibani Roy Chowdhury
W/o. Sri Asis Kumar Basu W/o. Lt. Alok Roy Chowdhury
at Chandmaridanga, Abinash Sarani, being one of the Developers/
(near Police Quarter), Partners of
P.O., P.S. and Dist-Bankura, M/S Shivam Construction
Pin-722101, 2. Sailee Roy Chowdhury
West Bengal. D/o. Lt. Alok Roy Chowdhury
Both are residents of 11/1,
South Sinthi Road, P.S.-Sinthi,
Kolkata-700050.
3. Smt. Basanti Kandari
W/o. Sri Nagendranath Kandari
Resident of 36, B.T. Road,
P.S.-Baranagar, Kolkata-700050.
4. Mili Ghosh (De)
W/o. Dipankar De
Being one of the partners of
M/S Shivam Construction
Residing at 8A, D. Gupta Lane,
P.O. & P.S.-Sinthi,
Kolkata-700050 and presently
Residing at Nimta (Golbagan),
P.S.-Belgharia, Kolkata-700049.
J U D G E M E N T
Facts of the case, in short, is that the complainant Smt. Bhagirathi Basu is a bonafide citizen of India being a Govt. Employee and permanent resident of “Abinash Sarani” Chandmaridanga (Near Police Quarter) P.O. P.S. and Dist- Bankura, Pin-722101 and where the cause of action arose within the jurisdiction
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of the Ld. Forum and the complainant is the bonafide consumer of the OPs as she had the service of the OPs against consideration. The office of the OPs is also within the jurisdiction of this Ld. Forum and the dispute is a consumer dispute which is well within the ambit of Consumer Protection Act, 1986.
Complainant stated that the Mr. Aloke Roy Chowdhury, the husband of the OP No-1 and the father of the OP No-2 and the OP No-4 were the partners of M/S Shivam Construction having its registered office at 36, B.T. Road, P.S.-Baranagar, Kolkata-700050 and after death of said Aloke Roy Chowdhury on 22.07.2013, being one of his legal heirs Smt. Shibani Roy Chowdhury and afterward Sailee Roy Chowdhury the daughter of Aloke Roy Chowdhury being another legal heirs became the partners in place of him and performing the official work in management of M/S Shivam Construction.
Complainant also stated that the OP No-3 is the owner of the schedule property as mentioned in the complainant who made an agreement with M/S Shivam Construction on 22nd September, 2005, having its registered office at 35/7, B.T. Road, P.S.-Baranagar, Kolkata-700050. The agreement between the land owner and the developers, M/S Shivam Construction executed in respect of development of the premises within the schedule property as mentioned in the complainant and also agreed by all the parties to construct a multi-storied building providing residential flats with the intention to sell out to the intending purchasers against the consideration. After sanctioning plan from the Baranagar Municipality, M/S Shivam Construction started the proposed construction and partly completed the said multistoried building under the name and style as “Balaka Apartment”.
Complainant further stated that the complainant intended to purchase one flat of “Balaka Apartment” and accordingly a tripartite agreement for sale between of M/S Shivam Construction and this complainant Smt. Bhagirathi Basu has been made on 01.06.2012. The agreement has been made between them to sell all that one self contained flat measuring more or less 750 sq. ft including 25% super built up area be the same more or less on the south East side, first floor, being flat no-B, within the schedule property as mentioned in the complaint.
Complainant stated that the complainant by strength of that agreement booked one flat as aforesaid as a consideration of Rs 20, 00, 000/- out of which the complainant has paid part by different bank transactions and also same amount by cash payment being the total amount of Rs 13, 80, 000/- + Rs 50, 000/-=Rs 14, 30, 000/- in favour of M/S Shivam Construction as well as on behalf of the land lady namely Smt. Basanti Kondari. Hence the complaint.
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OP No-1 , 2 and 3 contesting the case by filing separate written version and OP No-4 did not turn up to contest the case.
OP No-1 and 2 stated that complainant has written false payment structure in the complaint that the complainant gave Rs 50, 000/- cash to the OP No-1. The actual fact is the husband of the complainant Mr. Asis Kumar Basu came to the residence of Smt. Shibani Roy Chowdhury, W/o. Lt. Alok Roy Chowdhury (the original owner of the said joint-venture project) and forcefully taken a signature of Smt. Shibani Roy Chowdhury of the said money receipt and at the time of handing over money he has given Rs 25, 000/- and the complainants/ OPs is also doubtful about the another cash payment of Rs 1, 30, 000/-.
OP No-1 and 2 also stated that after death of Alok Roy Chowdhury on 23.07.2013, the husband of complainant Mr. Asis Kumar Basu came to the house of Smt. Shibani Roy Chowdhury, W/o. Lt. Alok Roy Chowdhury and her only daughter Sailee Roy Chowdhury is almost in a penny less condition and that advantage taken by Asis Kumar Basu. Now OP No-1 Smt. Shibani Roy Chowdhury is trying to arrange a solution with the help of some other known people who are already engaged in same construction business of solve this problem.
OP No-1 and 2 further stated that OP No- 1and 2 are trying as legal heirs to complete the construction work with the help of some other promoters but virtually they don’t have any actual document by which they can proceed further but still they are trying to accumulate the documents at their level best. According to the joint-venture agreement dated 7th September, 2005 Smt. Basanti Kandari, the land owner taken Rs 3, 00, 000/- and self contained three flats of which two flats will be of 550 sq. ft and one flat of 300 sq. ft including super built up and beside this Smt. Basanti Kandari taken Rs 3, 00, 000/- from Lt. Alok Roy Chowdhury who was the sole proprietor of M/S Shivam Construction according to the joint-venture agreement.
OP No-1 and 2 also stated that Smt. Basanti Kandari ( OP No-3) executed a general power of attorney in the name of demised Alok Roy Chowdhury which was registered. OP No-1and 2 are still ready to complete the construction work if they get all the information about the said building such as all agreement holder, execution of the power of attorney in favour of Smt. Shibani Roy Chowdhury and extension of the sanctioned plan and the complainants/ OP Nos. 1 and 2 has no bad intension to cheat the complainant in this grave situation of her family.
OP No-3 stated that it is fact that the OP No-3 is the land owner and she entered into one agreement with the developers and apart from the same all
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activities were conducted and occurred by the developer beyond the knowledge the OP No-3. OP No-3 is one old aged (85 years age) ailing lady and she was deprived and cheated by the promoters/developers from all aspect.
Point for Decision:-
- Whether complaint is maintainable?
- Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Issue No-1 At the time of perusal of the complaint and other documents it appears that complainant in Paragraph-7 of the complaint has stated that value of the disputed flat is Rs 20, 00, 000/-. Ld Lawyer the OPs submitted that this Forum has no pecuniary jurisdiction to entertain this case. On the other hand Ld Lawyer for the complainant has submitted as this point was not challenged at the first stage of the hearing, at this stage this point cannot be taken. Considering the submission of the complainant we are of the view that complaint is maintainable.
Issue No-2 We have perused the written version of both the parties. It appears that both promoter and developer admitted that there was an agreement between the complainant and husband of the OP No-1 in connection with the dispute property. Bank receipts shows that complainant has paid Rs 14, 30, 000/- out of Rs 20, 00, 000/-. Hence complainant has an obligation to pay the balance consideration money of Rs 5, 70, 000/-. Accordingly we are of the view that complainant is entitled to get relief as prayed for.
Hence
It is ordered,
that the complaint and same be allowed on contest against the OP No-1 to 3 and exparte against OP No-4.
Complainant is directed to pay the balance consideration money to the OPs within one month from the date of this order.
On receipt of the balance consideration OPs will execute and register the deed of conveyance in favour of the complainant.
In default complainant is at liberty get the deeds execute and register through this Forum on deposit of balance consideration money in this Forum.
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OPs are directed to handover the possession of the flat after receipts of the balance consideration money.
OPs are also directed to pay Rs 4,000/- as litigation cost to the complainant within one month from the date of this order, failing which OPs shall have to pay sum of Rs 100/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
