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DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 88 OF 2017
DATE OF FILING: 12.07.2017
DATE
OF JUDGEMENT: 28.08.2019
Present
: President :
Ananta Kumar Kapri
Member
: Jhunu
Prasad
COMPLAINANT
: 1. Sri Sanjib Karmakar, S/O – Sri Dulal Chandra Karmakar.
2. Smt. Kakali Karmakar, W/O - Sri Sanjib Karmakar.
Both residing at C/o. Nirmal Dey, Nowapara 3rd Lane, P.O. +
P.S. – Sonarpur, Kolkata – 700 150.
O.P/O.Ps
: 1. Smt. Baishali Ghosh (Nee Mukherjee), W/O – Sri Tapan
Ghosh, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. –
Sonarpur, Kolkata – 700 149.
2. Smt. Piyali Basu (Nee Mukherjee), W/O – Sri Abhijit
Basu, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. –
Sonarpur, Kolkata – 700 149.
3. Sri Ram Chandra Shaw, S/O – Kapil Shaw, Residing at 38, Raipur
Road, P.O. – Garia, P.S. – Jadavpur, Kolkata – 700 084.
4. M/S. Sarada Construction, A sole proprietorship Firm,
Represented through Sri Ram Chandra Shaw, Having its office at East Baidya
Para, P.O. + P.S. – Sonarpur, Kolkata – 700 150.
_______________________________________________________________
JUDGMENT
Sri
Ananta Kumar Kapri, President
This is a case filed under section 12, CP Act, 1986 by the complainant
alleging deficiency in service on the part of the O.P.s.
Facts leading to the filing of the instant case may be epitomized as
follows.
O.P.s nos. 1 and 2 are land owners and O.P. nos. 3 and 4 are developers.
Sale agreement dated 28.04.2014 was executed by and between the
complainants and the O.P. no. 3 i.e. the developer and thereby the
developer agreed to sell a self-contained flat measuring 774 Sq.ft. super
built-up area, as succinctly described in schedule B to the complaint, for
Rs. 12,00,000/-. The entire consideration price of Rs. 12,00,000/- has been
paid by complainants to O.P. no. 3 on different dates. Sale deed has been
also executed and registered on 27.07.2015 by O.P. no. 3 / developer in
favour of the complainants. But, possession of the flat and completion
certificate of the building are yet to be delivered to the complainants.
Consistent demands of the complainants for possession of C.C. have turned
into a blind alley. Now, the complainants pray for delivery of physical
possession of the flat, payment of compensation etc. Hence, this case.
Written version is filed by O.P. no. 3 / developer wherein it is contended
that the case is not maintainable as it is not a consumer dispute.
According to him, possession of the flat was made over to the complainants.
The case is vexatious one filed after a long lapse of time since the date
of registration of the flat and therefore the case should be dismissed in
limini with cost.
Written version is also filed by O.P. no. 2 i.e. the owner, wherein it is
contended inter-alia that the developer (O.P. no. 3) has cheated O.P. nos.
1 and 2 by transferring the subject flat to the complainants. According to
them, the subject flat falls into owner’s allocation and O.P. no. 3 has no
locus standi to transfer that flat to the complainants. Complainants and
developer are in collusion with each other. Complainants are not entitled
to the possession of the flat and therefore the case should be dismissed in
limini.
Upon the averments of the parties, the following points are formulated for
consideration.
POINTS
FOR CONSIDERATION
1.
Are
the O.Ps guilty of deficiency in service as alleged by the complainants?
2.
Are
the complainants entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE
PARTIES
Evidence on affidavit is led by
the complainants, O.P. no. 2 and O.P. nos. 3 and 4. Questionnaires and
replies filed by the parties are kept in record. BNA is only filed by
complainants and the same is also kept in record after consideration.
DECISION WITH REASONS
Point
no. 1 and 2 :
In the instant case, registration of the deed of conveyance has been
effected by the developer i.e. O.P. no. 3 in favour of the complainants
with respect to the subject flat. The grievance of the complainants is that
the possession of the flat has not been delivered to them by the developer.
The developer has not been able to produce any possession letter before the
forum to prove that the possession of the subject flat has been made over
to the complainants by him. He was put a question, vide question no. 16 by
the complainants as to whether possession of the flat is made over to the
complainants and whether possession letter has been delivered to the
complainants or not. O.P. no. 3 has given no reply to that question of the
complainants during written cross examination. O.P. no. 2 is the land owner
and she was also asked, vide question no. 16 of the questionnaires put to
her by complainants, as to whether the complainants are in possession of
the subject flat. In reply, she was stated that she is not responsible to
give possession of the flat to the complainants. From all these, it stands
established that the possession of the subject flat has not been delivered
to the complainants by the developer i.e. O.P. no. 3, although O.P. no. 3
has effected a registered deed of conveyance in favour of the complainants
in respect of the subject flat. This is one chapter of the episode and here
is still another chapter of the episode left for discussion.
It is the version of O.P. no. 2 i.e. the land owner that she has been
cheated by the developer who had sold away the flat to the complainants
from her owner’s allocation. The developer has not been able to give
satisfactory answer to the charge levelled against him by the land owner. A
copy of development agreement dated 27.07.2011 is filed on record. On
perusal of the said development agreement and also the deed of conveyance
of the complainants, it is found that the subject flat lies in the
allocation of owner i.e. O.P. no. 2 and the developer i.e. O.P. no. 3 in
his shenanigans has sold away the said flat from owner’s allocation to the
complainants. The complainants have not also gone deeper into the matter;
they have purchased the flat blindly, relying upon the version of the
developer i.e. O.P. no. 3. Now, it is found that the developer has no authority
to sell the flat from owner’s allocation. He i.e. the developer has acted
in contravention of the terms and condition of the development agreement
and has sold away the flat to the complainants. Such transgression of the
terms of development agreement by the developer is not permissible in law.
This being the facts and circumstances of the case, it is found that the
developer i.e. O.P. no. 3 has no locus standi to sell out the subject flat
to the complainants from owner’s allocation of O.P. no. 2 and therefore the
deed of conveyance dated 27.07.2015 executed by the developer i.e. O.P. no.
3 in favour of the complainants is unlawful and invalid. The complainants
cannot get the subject flat which has been registered in their favour.
Regard being had to all these, we are inclined to pass an order in favour
of the complainants as hereunder for the reason that the dexterous act of
the developer appears to be more than deficiency in service.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the
O.P. nos. 3 and 4 with a cost of Rs. 10,000/- and dismissed on contest
against O.P. no. 2. The case also stands dismissed ex-parte against O.P.
no. 1.
The developers i.e. O.P. nos. 3 and 4 are directed to deliver a new flat of
similar type with similar area and similar facility, well complete in all
respects, to the complainants and to register the same in favour of the complainants
at his own cost, provided the complainants are ready and willing to accept
the said flat, within a month of this order, failing which he i.e. O.P. no.
3 shall return the entire consideration price i.e. Rs. 12,00,000/- to the
complainants with interest at the rate of 12% p.a. from date of payment
till full realization thereof.
In case the complainants do not accept the new flat sought to be provided
to them by O.P. no. 3, he i.e. O.P. no. 3 is also directed to pay a sum of
Rs. 7,00,000/- as compensation to the complainants to mitigate their loss,
mental agony and harassment caused to them, within the aforesaid period
i.e. one month of this order, failing which the compensation amount will
bear interest at the rate of 12% p.a. till full realization thereof.
O.P. no. 3 is further also directed to supply completion certificate to the
complainants, if a new flat is delivered to the complainants within
aforesaid period of one month, otherwise latitude is given to the
complainants to execute this award through the instrumentality of the
forum.
Register-in-charge is directed
to supply a free certified copy of this judgment at once to the parties
concerned.
I/We
agree
Member
President
Directed and corrected by me
President
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