In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No. 325 / 2011 .
1) Sri Prodip Kumar Sarkar,
Flat No. E-27, 2nd Floor, Premises no. 343,
Garia Gardens, Kolkata-700084. ---------- Complainant
---Versus---
1) The Singhi House Family Trust, Promoter / Developer,
Represented by Sri Prakash Kumar Singhi, 9/3A, Gariahat Road, Kolkata-700019.
2) (a) Sri Pradip Chowdhury.
(b) Sri Probal Chowdhury
(c) Sri Partha Chowdhury
All are residing at
343, Garia Gardens, 24 Parganas(S), Kolkata-700084. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Sharmi Basu, Member
Order No. 11 Dated 31/07/2012.
The instant case has been filed by the complainant against the opposite parties with allegations of deficiency in service which is within the scope and ambit of the COPRA.
In a nut-shell, the case of the complainant is that the complainant has entered into an agreement for sale dated 19.04.2001. with the O.P.1,Developer for purchasing a flat( schedule A of the agreement for sale).The consideration amount of the suit flat was fixed for Rs.5,30,000/- and the complainant paid through several instalments in total Rs.4,70,000/- to the O.P.1,towards the consideration of the suit flat. He was in possession since 28.11.2004. It is needed to be mentioned that O.P.1 received the Power of Attorney from the Landowners [O.P.2(a),(b) &(c)] in respect of the suit premises for and by virtue of the Power of Attorney the O.P.1 was empowered to offer the flat in question for sale to the intending consumer and to receive consideration amount and also to present the Deed for execution and registration. However, though the complainant requested the O.P.s time and again to receive the balance amount and to execute and register the Deed of Conveyance of the suit flat and also to handover the concerned Completion Certificate to the complainant but the O.Ps did not pay heed to that. And as per the complainant due to this inaction of the O.P.s complainant has to suffer irreparable loss. Hence the complainant has no alternative but to appear before this Forum redress the dispute. The complainant has prayed for relief as mentioned in the prayer portion of the complaint petition.
The O.P.1 has appeared before this Forum and filing written version denied all the material allegations and interalia prayed for dismissal of the instant case in limini.
Decision with reasons:
After securitising vividly all the documents filed before this Forum and hearing every nook and corner from the complainant and o.p. no.1 it appears to us that complainant has entered into an agreement for sale on 19.4.01 with o.ps. for purchasing a flat for the suit premises The consideration amount of the suit flat was fixed for Rs.5,30,000/- and the complainant paid through several instalments in total Rs.4,70,000/- to the O.P.1,towards the consideration of the suit flat. He was in possession since 28.11.2004. It is needed to be mentioned that O.P.1 received the Power of Attorney from the Landowners [O.P.2(a),(b) &(c)] in respect of the suit premises for and by virtue of the Power of Attorney the O.P.1 was empowered to offer the flat in question for sale to the intending consumer and to receive consideration amount and also to present the Deed for execution and registration. It is also admitted fact that after requests of the complainant o.ps. did not execute and register the deed of conveyance in favour of the complainant with respect to the flat in question nor handover the copy of related completion certificate of Rajpur Sonarpur Municipality. Ld Counsel of o.p. no.1 has raised the point the instant case is time barred. In this regard we are of the opinion that the instant case is not at all time barred and in this regard we are referring the remarkable judgment of Hon’ble National Commission in which Hon’ble National Commission has been pleased to observe that the cause of action shall continue till completion of execution and registration of deed of conveyance in favour of the complainant and delivery of completion certificate with respect to any flat or plot by the developer and/or landowner. O.p. no.1 has also raised a point that the complainant has took forceful possession in the said flat. But from the record it appears that o.p. no.1 never lodged any complaint before the police in this regard. Therefore, question of forceful possession could not be raised at this stage after long period of taking possession in the suit flat by the complainant on 28.11.04.
It is observed by the Hon’ble National Commission which was affirmed by the Hon’ble Apex Court that after entering into agreement for sale with the intending consumer, if the developer and/or landowner did not execute and register the deed of conveyance in favour of the complainant with respect to any flat or plot and/or completion certificate did not handover to the intending purchaser it tantamounts to deficiency in service. In the instant case though the complainant was in possession since 2004 and the complainant is always ready to pay the balance amount of Rs.60,000/- towards the full and final consideration of the suit flat at the time of execution and registration of the suit flat. Therefore, as per above discussion it is held by this Forum that o.p. no.1 developer and o.p. no.2 (a,b,c) are liable for deficiency in service under the purview of the C.P. Act, 1986. To decide whether the complainant is eligible to get compensation as prayed for partly or in full from the o.ps. following discussion is advanced. The o.p. no.1 being developer having power of attorney from the landowners, after receiving Rs.4,70,000/- from the complainant lastly on 28.11.04 towards the consideration amount of the suit flat did not take any positive action to execute and register the deed of conveyance and to serve the completion certificate, has committed deficiency in service and for this complainant has no alternative but to pay huge excess amount for stamp duty at the time of execution and registration of deed of conveyance. Moreover, for this inaction of o.p. no.1 complainant has to suffer tremendous mental agony and harassment. Therefore, we are of the opinion that complainant is rightfully eligible to be compensated by the O.P.1,Developer.
Hence, ordered
The case of the complainant is allowed with cost against O.P.1 on contest and without cost against O.P.2(a.b.c).
All the o.ps. are jointly and/or severally directed to execute and register the deed of conveyance in favour of the complainant with respect of the suit flat. O.P.1 is directed to pay Rs.70,000/- as compensation and to pay Rs.5,000/- as litigation cost to the complainant.
All the above orders should be complied within 60 days from this date of order i.d. an interest @ 9% p.a. shall carry over entire sum due to the credit of the complainant in case of O.P.1,till the date of realization and O.P.2 shall be liable to pay Rs.50/-per day to the complainant after 60 days from the date of this order. Complainant is also directed to pay Rs.60,000/- to the O.P.1 on the date of execution and registration of deed of conveyance.
