Before
the Hon’ble District Consumer Disputes Redressal Commission, South 24 Parganas,
Baruipur, Kolkata – 700144
Consumer
Complaint no. CC/107/2019
In
the matter of :
Shri
Bikash Musib,
_________Complainant
-
Versus
–
M/s. Greenhaven
Realty Private Limited, and Other,
__________Respondents
Brief notes of
Argument on behalf of the Complainant
Facts :
1. That in the
year 2011, an advertisement was circulated in a network site namely Magic
Bricks and in the said advertisement the respondents publicized a scheme to
sell huge chunk of land by dividing it into numbers of plots, subsequently in
the year 2012, a property fair was also held at the Science City, Kolkata,
which was organized by CREDAI Bengal, and in the said Fair the Respondent
Company publicized the said scheme to sell huge chunk of land by dividing it
into numbers of plot. The respondent company promoted a project namely GREEN
CITY SONARPUR and invited applications from the intending purchasers to
purchase plots of land under the said project by making payments to the
respondents in number of installments within a stipulated period of time
mentioned in their advertisement brochure.
2. That the
Complainant paid Rs. 5,000/- and Rs.
45,000/- being 20% valuation of the plot to the respondent company. The
respondent company vide letter dated 03-03-2012, intimated tro the complainant
about the allotment of a plot being number 2B137, in the township project GREEN
CITY SONARPUR. Thereafter the respondents entered into an agreement for sale
dated 19th day of July’ 2012 , with the complainant, wherein the
value of the said plot of land with all amenities thereby given as of Rs.
2,50,000/- . the said Plot of Land described as measuring about 2 (Two) Cottah
being Scheme Plot no. 2B138, lying and situasted at Mouza – Sangur, J.L. no.
108, Dag no. 1623, Khatian no. 544, Police Station & Sub Registry Office –
Sonarpur, Kolkata – 700150, District South 24 Parganas, which comprise with
right to take electric, tap water, telephone, etc. connection through over and
under the 20ft wide common passage adjacent to the said plot of land together
with all easement rights and appurtenance thereto.
3. That the
Complainant subsequently booked one another plot of land with all amenities
with the respondents, as the respondents convinced the complainant to take two
plot of land as to construct house thereon for accommodation of the
complainant’s large numbers of family members.
4. That the
Respondents made another agreement for Sale dated 13th day of March’
2013, with the complainant in respect of another further schedule of plot of
land measuring 2 (two) Cottahas being Scheme no. 2B164 lying and situated at
Mouza Sangur, J.L. no. 108, Dag no. 1978, Khatian No. 1094 & 1095, Police
Station & Sub Registry Office – Sonarpur, Kolkatas – 700150, together with
right to take Electric, Tap Water, etc., connection through over and under the
20 ft wide common passage adjacent to the said plot of land together with all
easement rights and appurtenance thereto, for a total consideration of Rs.
2,50,000/-
5. That therefore
in totaling the calue of the plot of land in two agreement for sale which come
as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, and whereas the Complainant
paid in total as of Rs. 4,90,007/- ( Rupees Four Lakhs and Ninety Thousand and
Seven ) only, to the Respondents, therefore only a sum of Rs. 10,000/- ( Rupees
Ten Thousand ) only, remained to be paid to the respondents by the complainant.
The complainant made his last payment on 3rd day of June’ 2014.
6. That in the
month of July’ 2014, the respondents came with another proposal as of that they
have decided to modify their project as “PLOT with BUNGLOW” and asking for
further payments towards additional costs. The Complainant decline to take such
offer of the respondents, and thus asked for refund of his money with banking
rate of interest thereon along with appropriate compensation thereon.
7. That the
Complainant continuously ventilate his grievance to the respondents through
CREDAI Bengal and whereas finally on 22-06-2015, the respondents given a cheque
of Rs. 6,38,666/- to the complainant,
being refund of money with interest and compensation, thereof. The said cheque
has been presented on 13th day of July’ 2015, by the complainant to
his banker for collection of the values of the said cheque into his account,
but the said cheque has been dishonored with the remarks “Funds Insufficient”,
and the same has been intimated by the banker to the complainant on 13th
day of July’ 2015.
8. That in the Agreement for Sale dated 19th day of July’
2012, and 13th day of March’ 2013, at page no. 3, para 1, at last
portion it has been described as “ In the event of failure to give maraketable
title to the Purchaser / Allottee the Developer under takes to refund the amount
that will be paid upon execution of these presents to the Purchaser /
Allottee.” And in para 3, stated as “ Each allotte along with the Developer
will be entitled to the following easement rights and similarly be subject to
similar easements and rights to the other unit allottees as also the developer
i) Right of access and way in common with the Developer and / or other
allottees at all time with the use and enjoyment of common area and facilities
to which they are entitled to. Ii) Easements quasi easements, appendages
and appurtenances belonging to or
appurtenant to plots as usually held used and occupied or known as part or
parcel thereof or appertaining thereto provided always that nothing herein
contained shall permit the allottee or any person deriving title under him or
his agent and invitee to obstruct in any way by vehicle, deposit or materials,
rubbish or otherwise free passage of other person or persons including the
developer and other allottee entitled to such way as aforesaid. iii) the right
of protection of the plot by and from all parts of the project as far as they
are normally protected. iv) the right of flow in common of electricity,
telephone, water and waste or soil from and to the plot through pipes, drains,
wires, and conduits lying or being in under through or over the other parts of
the said project as applicable, so far as may be reasonably necessary for the
beneficial use occupation and enjoyment of each plot.
RELIED ON THE
FOLLOWING DOCUMENTS :
a)
Letter
of Allotment dated 3rd day of March’ 2012;
b)
Agreement
for Sale dated 19th day of July’ 2012;
c)
Letter
of Allotment dated 20th day of November’ 2012;
d)
Agreement
for Sale dated 13th day of March’ 2013;
e)
Money
Receipts;
f)
Ledger
provided by the Respondent;
g)
Email
Communications;
h)
Cheque
no. 000090, and return memo;
PRAYER
:
a)
to
direct the respondents / opposite parties to pay Rs. 6,38,666/- ( Rupees Six Lakhs Thirty Eight Thousand and
Six Hundred Sixty Six ) only, being the value of the purported
cheque, to your petitioner, as was ascertained and given by the Opposite
Parties / Respondents at the event of change of the nature of their projects;
b)
and
or alternatively direct the respondents / opposite parties to pay Rs. 4,90,007/- ( Four Lakhs and
Ninety Thousand and seven ) only, with appropriate Banking rate of interest to
the Complainant herein, in the interest of administration of justice;
c)
To
direct the opposite parties to pay compensation, as for the harassment,
troubles, loss of business, physical inconvenience and mental agony, suffered
by the petitioners from the purported activities and others by the opposite
parties as assessed as ₹ 3,00,000/- ( Rupees Three Lakhs ) only
to your petitioners;
d)
To
grant the cost of the proceedings ;
e)
To
grant any other relief or alternate relief to the petitioner as found out by
your Honour, in the facts and circumstances of the Complaint.
WRITTEN
VERSION BY THE RESPONDENT NO. 2(b) BISWANATH MONDAL AND RESPONDENT NO. 3(b)
MRS. IRA MONDAL ;
1. That the respondent no. 2b Mr.
Biswanath Mondal was the director of M/s. Green Haven Realty having 60% share
therein and Sri Sudipto Kumar Ghosh and Smt. Paroma Pathak jointly had 40%
share.
2. That the respondent no. 3b Mrs.
Ira Mondal is the wife of Sri Biswanath Mondal and became director of the said
Company in pursuant to fleeing/ resigning of the other two directors Sri
Sudipto Kumar Ghosh and Smt. Paroma Pathak share in the company.
3. That the present complainant
first has approached Mr. Biswanath Mondal for settlement of his disputes before
approaching the consumer forum, the said Mr. Mondal has also paid a sum of Rs.
20,000/- in 2018 by RTGS mode from Central Bank, Jadavpur Branch as part
payment honouring the said settlement.
4. That with respect to the
averments made in paragraph no. 15, the respondents denies each and every
allegations made therein. These respondents states that the allegation of
deficiency of service for non execution of sale deed is a false and frivolouse
story as the complainant never sought specific performance to possess the said
land and never asked for execution and registration deed of sale in their
favour. These respondents are ready and willing to execute and register deed of
conveyance as of today if the complainant so desire.
SUBMISSIONS ;
In the given facts and circumstances, the respondents could not
keep their commitment and as such agreed to refund the amount and ultimately by
a cheque, they refunded the amount of Rs.6,38,666/-. The evidence on
record goes to show that on the requests of the respondent company, the complainant
did not deposit the cheque immediately but ultimately on 13-07-2015, the cheque
in question was presented by the complainant to his banker, and the said cheque
was dishonoured with the remark 'funds insufficient'.
The entire episode clearly depicts the gross negligence and
deficiency in the services on the part of service provider towards a 'consumer'
as defined in the Act. The complainant had to suffer much due to
harassment and mental agony and as such it is also justified in imposing
compensation. The acts and conducts of the respondents compelled the complainant
to lodge the complaint and, therefore, the complainant is entitled to get
relief/s in terms of his prayer before the Hon’ble District Commission.
JUDICIAL
REFERENCES ;
First Appeal
No. A/365/2015 (Arisen out of Order
Dated 16/02/2015 in Case No. CC/605/2014 of District South 24 Parganas), {
Greenhaven Realty Pvt Limited and Others – Versus – Sri Prithwish Sarkar and
Other } Judgment dated 15th day of May’ 2017, decided by the Hon’ble
State Consumer Disputes Redressal Commission, West Bengal;
Through …………………
Advocate
Date : 22nd day of June’ 2022
Place : Baruipur, South 24 Parganas
