West Bengal

South 24 Parganas

CC/316/2014

MADHUSUDAN CHAKRABORTY, S/O. Hari Ranjan Chakraborty. - Complainant(s)

Versus

TAPAN BAKSHI, S/O. Late Santi Ranjan Bakshi. - Opp.Party(s)

16 Nov 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN COMPLEX, BARUIPUR, KULPI ROAD, KOLKATA-144

 

         C.C. CASE NO. _316_ OF ___2014__

 

DATE OF FILING : 18.7.2014     DATE OF PASSING JUDGEMENT:  16/11/2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Subrata Sarkar

                                                                             

COMPLAINANT              :   Madhusudhan Chakraborty,s/o Hari Ranjan Chakraborty of BD-254, Sector-I,

           Saltlake City, P.S Bishnupur, Dist. North 24-Parganas, Kolkata – 64.

 

-VERSUS  -

 

O.P/O.Ps                            :  1.  Tapan Bakshi,s/o late Santi Ranjan Bakshi,P-20P, Harish Neogi Road, Kolkata – 67.

                                               2.     Smt. Hira Dutta Banik,w/o late Prafulla Chandra Banik of Plot no.178, G.S Scheme (CMDA) of Refugee Rehabilitation Department, P.S Anandpur, Dist. South 24-Parganas.

                                              2A.    Sri Swapan Dutta Banik,son, 178, R.R. Plot, Anandapur (P.SO P.O-EKTP, Kol-107.

                                              2B.    Sri Prodip Dutta Banik,son,  178, R.R. Plot, Anandapur (P.SO P.O-EKTP, Kol-107.

                                              2C.   Mina Chakraborty,w/o late Ajit Kumar Chakraborty ,Daughter, 17, Begmari lane, Block No.-18, Flat no.28, P.O Kankurgachi, P.S. Manicktala, Kolkata- 54.

                                              2D.    Bina Ghosh,w/o late Sannasi Ghosh, Daughter, 29/F, Sitalatala Lane, P.O & PS Narkeltala, Kolkata – 11.

                                             2E.    Malabika Koley,w/o Raj Kumar Koley , Daughter, Vill. South Mamudpur, P.O Jagatnagar, P.S Singhur, Dist. Hooghly,Pin-712409.

                                             2F.    Mousum Dutta Banik, Daughter, 178, R.R. Plot, Anandapur (P.SO P.O-EKTP, Kol-107.

                                               2G.     Nanda Roy, w/o Bidyut Roy, Daughter, 7/39B, Bijaygarh Colony, Jadavpur, Kolkata – 32.

 

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

            The instant case has been filed by the complainant under section  12 of the C.P Act, 1986 with allegation of deficiency in service against the O.Ps.

In a nutshell the case of the complainant is that O.P-1 being the developer/promoter started construction of residential flats at Plot no. 178, G.S. Scheme ,CMDA, R.R. Plot, Anandapur , Kol-107 in terms of the  development agreement executed with the land owners. Complainant was willing to purchase a flat for his own use and booked two flats measuring 700 sq.ft on second floor and 300 sq.ft at second floor over the suit property and the price of the property was settled at Rs.12,00,000/-out of which complainant paid a sum of Rs. 2 lacs to the developer on 3^rd August, 2006  after execution of the agreement for sale on that date. Complainant thereafter severally requested to both the O.Ps to take balance dues and to deliver possession of the flat but the O.Ps refused to do the same, even O.Ps warned for dire consequence to the petitioner stating that if the complainant will further demand for any flat or refund of money then he will teach a lesson. Hence, this case, praying for direction upon the O.Ps to deliver peaceful possession of the flat after accepting balance consideration money, compensation of Rs.2 lacs and cost of the proceedings.

            The O.P-2 contested the case by filing written version and admitted about the execution of the development agreement. The positive case of the O.P-2 is that possession of the agreed allocation of the O.P-2 was supposed to be delivered within 12 months from the date of execution of the development agreement but the same was not done and even, O.P-2 had to start construction of the said building as per sanctioned plan and managed to live there and as such the aforesaid development agreement did not literally exist on expiry of the said 12 months  from the date of execution of the development agreement. O.P-2 prays for dismissal of the case.

            The O.P-1 also contested the case by filing written version denying all the material allegations contending inter alia that when the O.P-2 got  notice of execution of sale agreement with the complainant, she started creating disturbance and O.P-2 forcibly took possession of developer’s allocation, for which he is unable to take balance amount from the complainant. The positive case of the O.P-1 is that he is always agree to take balance of the sale price and to hand over possession of the complainant but he is unable to perform his part as per agreement because of the illegal disturbance or interference of the O.P-2. O.P-1 prays for dismissal of the case.

            After scrutinizing four corners of the case following points are in limelight :

1.             Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

                                                            Decision with reasons

            All the points are taken together as they are interlinked.

            In the instant case the complainant paid Rs.2 lacs to the O.P-1, developer, as an advance towards the consideration of the flats where other O.Ps are landowners of that premises and the premises is situated under the territorial jurisdiction of this Forum, where the O.P-2 series are land owners of the land in question. Therefore, complainant is a “consumer” under section 2(1)(d)(ii) of the C.P Act 1986 and O.Ps are service providers under section 2(1)(o) of the C.P Act, 1986.

            After scrutinizing the records in its entirety and hearing argument in full length from the Ld. Advocates for the complainant and the land owners ( O.P 2 A to 2G) it is crystal clear that the complainant being interested to purchase a flat from the developer,O.P-1, has entered into an agreement for sale on 3.8.2006. But till the date of hearing of argument of the instant case neither the O.P-1 has handed over possession of the flats in question as per the aforesaid agreement for sale nor the O.Ps have executed and registered the deed of conveyances of the suit flats in question in favour of the complainants.

            In this regard we are keeping in mind the remarkable judgment of the Hon’ble Apex Court in the case of Lucknow Development Authority . In this landmark Judgment Hon’ble Supreme Court has been pleased to observe that the delay to deliver the possession and/or delay to execute and register the deed of conveyance of a suit flat  or plot in favour of the complainant amounts to deficiency in rendering services of the developer and/or land owners towards the complainant/intending consumer.

            In light of the above decision of the Hon’ble Supreme Court we have no hesitation to hold that where the complainant has time and again requested the developer,O.P-1 to hand over the possession and to execvute and register the deed of conveyance of the flats in question in favour of the complainant but the developer has not paid any heed to his request, therefore, O.P-1/developer has committed deficiency in rendering services by his inaction towards the complainant/consumer and he is duty bound to hand over possession of the flats and to execute and register the deed of conveyance in favour of the complainant and it is also beyond doubt that due to the aforesaid deficiency in services of the O.P-1 complainant has to suffer not only tremendous mental agony, harassment but also has to suffer financial loss, for which complainant has to be aptly compensated by the O.Ps.

            In this regard, it is also noted to be mentioned here that being land owners after giving power of attorney to the developer.P-2 series, they should not shrug off their entire responsibility towards the complainant/consumer and they are also duty bound to take part in the registration matter in favour of the complainant because it is crystal clear that it was very much within the knowledge of the land owners( O.P-2 series) from the very first instance the property in question could not be transferred and/or alienated within ten years from the date of registration  by the office of the Refugee Rehabilitation Commission i.e. from 08.04.2013. (Page 2 of B.N.A of O.P-2 series), but the Power of Attorney was given to the Developer for developing and to sell the flats in question and for this unscrupulous activity complainant has to suffer the present situation and to be harassed even after paying part of balance consideration to the developer, who started to promote the flat in question having power of attorney from the landowners. Therefore, landowners are equally responsible, along with the developer for the aforementioned tremendous harassment ,financial loss and mental agony of the complainant and liable to compensate the complainant.

            In this regard this is also to be mentioned that Ld. Advocate for the O.P-2 series has referred two judgments of the Hon’ble NCDRC ,and after going through those remarkable decisions of the Hon’ble NCDRC, but  as in the instant case the complainant being intending purchaser intends to purchase two flats of small area for his residential purpose and in the four corners of the case never it is reflected that he purchased the same for commercial purpose ,nor the O.Ps have never mentioned ,even failed to submit any documentary evidence to establish that flats are for commercial purpose.Therefore, both the decisions do not relevant in the instant case.  

            Therefore, considering all the facts and circumstances and in light of the above discussion we are of the opinion that complainant is eligible to get relief as prayed for in part .

            Thus all the points are discussed and all are in favour of the complainants and complaint case succeeds in part.

            Hence,

                                                                                    Ordered

That the case be and the same is allowed in part on contest against O.P-2 series and in exparte against O.P-1 with cost of Rs.5000/- .

The O.P-2 series are jointly and/or severally directed to pay Rs.50,000/- towards compensation to the complainant for his suffering harassment and mental agony ,profuse financial loss due to deficiency in service and negligence on the part of the O.P-2 series.

The O.P-2 series are also directed to execute Power of Attorney  in favour of the O.P-1 ,so that the O.P-1 developer  shall be able to hand over the suit property i.e. two flats within 30 days from the date of this order.

O.P-1 is also directed to hand over the peaceful vacant possession of the two flats complete in all respect if not at all in terms of the Agreement for Sale after obtaining sanctioned plan as per agreement for sale within 60 days from the date of this order  and O.P-1 is also directed to obtain necessary sanctioned plan if so required from the statutory authority in the meantime.

 

 

 

 

 

 

 

 

All the order should be complied with within the stipulated period, failing which interest @12% p.a shall be accrued on the decreetal amount as mentioned in the order till full and final compliance of this order.

Complainant is at liberty to execute the order through this Forum by filing separate execution case.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                               President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Ordered

That the case be and the same is allowed in part on contest against O.P-2 series and in exparte against O.P-1 with cost of Rs.5000/- .

The O.P-2 series are jointly and/or severally directed to pay Rs.50,000/- towards compensation to the complainant for his suffering harassment and mental agony ,profuse financial loss due to deficiency in service and negligence on the part of the O.P-2 series.

The O.P-2 series are also directed to execute Power of Attorney  in favour of the O.P-1 ,so that the O.P-1 developer  shall be able to hand over the suit property i.e. two flats within 30 days from the date of this order.

O.P-1 is also directed to hand over the peaceful vacant possession of the two flats complete in all respect if not at all in terms of the Agreement for Sale after obtaining sanctioned plan as per agreement for sale within 60 days from the date of this order  and O.P-1 is also directed to obtain necessary sanctioned plan if so required from the statutory authority in the meantime.

 

Member                                                           Member                                               President