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. 165 / 2011.
1) Sri Arunava Ganguli,
Flat no. 3A, 3rd Floor,
21, Prince Baktier Shah Road, Kolkata-700033. ---------- Complainant
---Versus---
1) Vasudev Builders,
17, Mohini Mohan Road, Kolkata-700020.
2) Jyotsna Bose,
3) Smt. Subhra Bose,
4) Souvik Bose,
5) Smt. Sarmishtha Ghosh
All of 21, Prince Bakhtier Shah Road, P.S. Charu Market, Kolkata-700033. ---------- Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Sharmi Basu, Member
Order No. 13 Dated 30/07/2012.
The instant case has been filed by the complainant against the o.p.s with an allegation of deficiency in service.
In a nut-shell, the case of the complainant is that the complainant entered into an agreement for sale with the O.P1,Developer for purchasing one flat with one covered car parking space at a total consideration of Rs.14,41,000/- on 16.06.05.. He is in occupation and possession of the suit flat on 23.02.2007. As per the complainant, the vacant spaces in the ground floor, which was specified only as car parking space for the flat owners, allowed to park outsiders’ vehicles by o.p.1 with a view to make unlawful gain. But, being lawful user of the car parking space complainant could not park his own car at the aforesaid car parking space, After repeated requests to the o.p.1,Developer, the complainant could not obtain any fruitful result. Moreover, though the complainant paid total amount towards the consideration of the suit flat to the O.P.1,Developer but the deed of conveyance in favour of the flat in question has not been executed and registered in favour of the complainant by all the o.p.s (i.e.o.p.1,Developer and o.p.2 to 5,land owners). Hence,he has no alternative but to file the instant case before this Forum for Redressal of the disputes.
O.P.s contested the case by filing w/v and denied all the material allegations against them and inter alia stated that they are ready and willing to execute and register the Deed of Conveyance in question.
Decision with reasons:-
After scrutinizing vividly all the documents filed before this Forum by all the parties and hearing of argument vividly of both sides it appears before this Forum that the complainant entered into an agreement for sale with the o.p.s for purchasing the suit flat and he paid total consideration amount to the developer,o.p.1 as per agreement and he is in possession of that flat. The complainant has prayers for two fold relieves, firstly for Execution and Registration of the Deed of Conveyance in favour of the complainant and secondly for specify and proper car parking space as per agreement for sale by the O.P.s.
Ld. Counsel for the o.ps raised a point that the instant case is time-barred. In this regard, we are referred a number of remarkable Judgements of the Hon’ble National Commission, wherein the Hon’ble National Commission has been pleased to observe that cause of action will be continued in case of developed plot or flat unless Deed of Conveyance (D.O.C.) would be Executed and Registered in favour of the complainant in relation to the suit flat by the Land Owner(s) and/or Developer. In the instant case, the Deed of Conveyance has not been Executed and Registered in favour of the complainant in relation to the suit flat by the o.p.s till the date of hearing. Therefore, the case of the complainant is not time barred.
It is also held by the Hon’ble National Commission that Land Owner(s) and/or Developer are duty bound to Execute and Register the D.O.C. in favour of the complainant in relation to the suit premises if they have entered into an agreement for sale with any intending purchaser. Therefore, we are of the opinion that the o.p.s are duty bound to Execute and Register the D.O.C. in favour of the complainant in relation to the suit flat and car parking space as per agreement for sale and they have committed deficiency in service towards the complainant due to their inaction to non-Execute and Register the D.O.C. in favour of the complainant in relation to the suit flat even after full and final payment already paid by the complainant towards the consideration of the flat in question.
To decide about the Car Parking Space, it is observed by the Forum that in the Para 7, Page 3 of Agreement for Sale dated 20.05.06. it is mentioned that Parking space shall mean space reserved in the land for parking of medium size motor cars or mechanized two wheelers and three wheelers if so mentioned. Though, in para 7 there are some jugglery of words, but, o.p.s shall not shrug their responsibilities and they should give ‘space for parking of medium size motor car’ to the complainant/consumer. From the report of survey dated 21.12.11. by the Ld. Advocate, it can’t be decided the area of scheduled car parking space which is 5 ft. or 6 ft. However, we are of the opinion is entitled to get car particular parking space which should be spacious atleast for a medium size motor car. Moreover, it is not expected from the developer that he would give any indulgence to any person other than flat owners, without consent of the complainant to park any vehicle at the suit premises.
To decide whether the complainant is eligible to get compensation or not it is our opinion that due to in action of the o.p.s ( mainly o.p.1) D.O.C. has not been executed and registered till the date of hearing of the instant case in relation to the suit flat in favour of the complainant even after full and final payment towards the consideration of the suit flat by him to the o.p.1 and for this deficiency in service and negligence of the o.p.s complainant has to suffer financial loss and mental agony and tremendous harassment. O.P.1 also causes deficiency in service by not providing proper car parking space to complainant . Therefore, we are strongly of the opinion that developer(o.p1) as he received the total amount from the complainant was duty bound to execute and register the deed of conveyance in favour of the complainant and also duty bound to give proper car parking space to the complainant and being developer he is liable to compensate the complainant for his financial loss, tremendous mental agony and harassment.
Hence, Ordered
The case of the complainant is allowed on contest against the all ops, with cost against the o.p.1 and without cost against the o.p.2 to o.p.5.
All the o.p.s are directed to Execute and Register the Deed of Conveyance in favour of the complainant in relation to the suit flat.
O.P.1 is directed to provide a specific undisputed car parking space within the premises which should not be sufficient for parking of medium size motor car.
O.P.1 is directed to pay compensation of Rs.1,00000.00(Rupees one lakh) only to the complainant for his financial loss, mental agony and harassment due to inaction, negligence and deficiency in rendering service by the o.p.1.
All the above orders should be complied within 60 days from the date of communication this order, failing which O.P.1 should be liable to pay Rs.100/- per day and o.p.2 to 5 jointly and/or severally be liable to pay Rs.100/- per day after the completion of stipulated period i.e. 60 days from the date of communication this order.
