State Consumer Disputes Redressal Commission
Mrs. Bharati Saha vs M/S. Dream Construction & Ors. on 14 February, 2013
D R A F T
State Consumer Disputes Redressal
Commission
West Bengal
BHABANI BHAVAN (GROUND
FLOOR)
31, BELVEDERE ROAD, ALIPORE
KOLKATA 700 027
S.C. CASE NO.
: CC/27/2010
Date of Filing : 05.05.2010 Date
of Final Order : 14.02.2013.
APPELLANTS/COMPLAINANTS :
MRS. BHARATI SAHA, wife of
Sri Asim
Kumar Saha, residing at 23,
Kalabagan Lane, Police Station
Kolkata 700 033
RESPONDENTS/O.P.S :
(1) M/S. DREAM CONSTRUCTION, a
partnership firm being represented
by its partners (A) SRI UTPAL SAHA
son of Late Suresh Chandra Saha
residing at, 55B, Anjuman Ara Begum
Row, Police Station Jadavpur,
Kolkata-700 033 and (B) SRI PRAVAS
BHATTERJEE, son of Sri Bholanath
Bhattacharjee residing at 44/1,
Prince Anwar
Shah Road, Police
Station Tollygunge, Kolkata-700 033.
(2) SRI ASIM SAHA son of Late
Gouranga Chandra Saha
Residing at 5th Floor, AO-II/LPG-OPS
(WBSO), I.O.C. Limited, 2, Gariahat
Road (South), Police Station
Kolkata 700 068.
(3) SRI RATHINDRA PROSAD ROY,
Late Son of Upendra Prasad Roy
55A, Anjuman Ara Begum Row,
Police Station Jadavpur,
Kolkata 700 033.
(4) SRI UTPAL SAHA,
Son of Late Suresh Chandra Saha
55B, Late Son of Upendra Prasad Roy
55A, Anjuman Ara Begum Row,
Police Station Jadavpur,
Kolkata 700 033.
(5) Sri Provas Bhatterjee,
Son of Sri Bhola Nath Bhattacharjee
residing at 44/1, Prince Anwar Shah
Road, Police Station Tollygunge
Kolkata 700 033.
(6) Sri Narendra Nath Bhattacharjee
Son of Sr Sailendra Nath
Bhattacharjee
residing at 62/31/2,
Hariapada
Dutta Lane,
Kolkata 700 033.
(7) Sri Subir Kumar Bhowmick
Son of Late Sirish Chandra Bhowmick
3, Chanditala
Branch Road, P/10,
Udyan
Park, Police Station
Behala,
Kolkata 700 053.
BEFORE : HONBLE JUSTICE : Sri Kalidas
Mukherjee,
President.
MEMBER : Sri S. Coari.
MEMBER : Smt. Mridula Roy.
FOR THE PETITIONER /
APPELLANT : Mr. Debesh Halder,
Ld. Advocate.
FOR THE RESPONDENT / O.P.S. : Mr. Avijit Chatterjee,
Ld. Advocate.
Ms. Bisakha Sribastab,
Ld. Advocate.
: O R D E R :
MRIDULA ROY, MEMBER.
The instant petition of complaint is filed by Bharati Saha under Section 12 read with Section 13 of C. P. Act against the above named O.Ps.
The Complainants case in brief is that she and her husband being the O.P. No. 2 herein, had jointly entered into an agreement on 30.05.2008 with the O.P. Developer being O.P. No. 1 herein, a partnership firm represented by its partners being O.P. Nos. 4 & 5 who had constructed a building in a piece of land being the premises No. 55A, Anjuman Ara Begam Road, P.S. Jadavpur, Kolkata 700 033, District 24 Pgs. (South) owned by O.P. Nos. 3, 6 & 7 for purchasing a flat at a consideration of Rs.21,00,000/-. Accordingly, the Complainant has made payment of Rs.13,52,000/- from her personal account and the balance amount has been paid by her husband. Subsequently, the O.P. Developer intimated the Complainant by a letter dated 21.01.2010 to pay a further sum of Rs.56,425/- on the ground that some excess area was allotted to her in the flat in question. The Complainant also paid the entire amount demanded by the O.P. Developer i.e. Rs.56,425/-. Subsequently, the O.P. No. 1 Developer requested the Complainant and the O.P. No. 2 by a letter dated 21.01.2010 to take the possession of the said flat within seven days from the date of receipt of the said letter, but since then the O.P. Developer did not take any initiative to handover the said flat to the Complainant. The Complainant pertinently has mentioned that she had rift with her husband and, therefore, they have been residing separately since a spell of time. But, in spite of that her husband had not refused to take the possession of the said flat. The Complainant contacted with the O.Ps on several occasions and asked them to deliver possession of the said flat but no fruitful result was forthcoming.
Hence, she filed the instant complaint praying for direction upon the O.Ps to deliver the possession flat in question and to register the deed of conveyance, not to transfer or alienate the said flat or any part thereof to any stranger/purchaser/transferee, not to raise any objection or to create any hindrance in delivering the possession of the said flat and to pay compensation of Rs.21,00,000/- for unfair trade practice.
The O.P. Nos. 1 and 3 to 7 file Written Objection denying and disputing all material allegations stating inter alia that the O.P. No. 2 being the husband of the Complainant entered into an agreement along with his wife with the O.P. developer for purchasing a flat constructed by them. Total amount of consideration had already been paid by the Complainant and the O.P. No. 2. The said O.Ps specifically stated that they had no problem to deliver the possession of the said flat to the Complainant and the O.P. No. 2 together. But the O.P. No. 2 intimated them that he had a strained relationship with his wife as a result of which, he was not willing to live with his wife under the same roof. Therefore, he requested the O.P. Developers to divide the said flat by a partition so that two self-contained flats could be constructed and he and his wife could enjoy equal portion of the said flat. The O.P. Developer stated that he could not find out where to construct the partition so that there could be two self-contained flats created. Therefore, the O.P. Developer could not deliver any step to deliver the possession of the flat to the Complainant. The above stated O.Ps specifically mentioned that they are ready and willing to deliver the possession of the said flat to the Purchaser i.e. the Complainant and the O.P. No. 2 jointly. Therefore, they prayed for direction be given to the purchasers to take the possession of the said flat jointly.
O.P. No. 2 filed the Written Version stating inter alia that he was not ready to take possession with his wife jointly since he was not in good relation with her. The O.P. No. 2 specifically stated that he instructed O.P. Developers to divide the said flat in two equal portions and to construct two separate self-contained flat and to deliver possession of the two self-contained flat to him and his wife respectively. He also prayed for rejection of the petition of complaint with cost.
Points for determination :
(1) Whether the O.P. Developers and Landowners are deficient in providing service to the Complainant?
(2) Whether the Complainant is entitled to get relief as prayed for?
DECISION WITH REASONS :
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant and her husband entered into an agreement with the O.P. Developers on 30.05.2008 for purchasing a flat at a consideration of Rs.21,00,000/-. Entire consideration amount had been paid by the purchasers to the developers and there was no outstanding dues payable to the O.P. Developers. The developers also issued a letter dated 21.01.2010 to the purchasers for the delivery of possession of the said flat, but subsequently they did not take any initiative to that effect. The Complainant along with her three children had been facing too much difficulty for a suitable accommodation. Therefore, she requested the O.P. Developers on several occasions for handing over the possession of the said flat.
The Developers and the landowners specifically stated that the Complainant and her husband jointly entered into an agreement on 30.05.2008 and entire consideration amount was paid jointly by the purchasers to them. The O.P. Developers and Landowners categorically submitted they had no intention to deprive the purchasers of getting possession of the flat, but the husband of the Complainant instructed them over telephone not to handover the possession of the said flat, rather he expressed his intention to divide the said flat into two self-contained flats of equal area and to deliver possession of the said two self-contained flats to the Complainant and her husband respectively. The Complainants husband expressed his unwillingness to stay with his wife under the same roof and due to the strained relationship of them he wanted to stay in a separate flat. The O.P. Developers and Landowners are still in effort to find out the way to construct a partition and to convert the said flat into two self-contained flats.
Therefore, the possession of the flat is yet to be delivered.
The O.P. No. 2 (husband of the Complainant) admitted that he instructed the O.P. Developers to covert the said flat into two self-contained flats of equal area so that he and his wife could enjoy equal portion of the flat they booked vide agreement dated 30.05.2008.
In course of hearing the Ld. Advocate for the O.P. Developers and Landowners has submitted that the Developers and Landowners have no problem to deliver the possession of the said flat to the purchasers if the purchasers jointly approach them. Since the purchasers have booked the flat jointly and made payment jointly, they are to accept the possession jointly. Ld. Advocate for the O.P. No. 2 submitted that the O.P. No. 2 has no intention to deprive his wife of getting possession of the flat.
Parties led evidence followed by cross-examination.
It appears from the record that the O.P. Developers received the entire amount of consideration and accordingly were ready to deliver the possession of the flat to the purchasers. They are in no way deficient in providing service to the purchasers.
The O.P. No. 2 stated that he instructed the Developers to convert the said flat into two self-contained flats but no subsequent agreement was executed to that effect. In fact, the agreement dated 30.05.2008 is still in force and parties are bound by the terms of the said agreement. Therefore, the parties are bound to act in accordance with the terms of the agreement.
The Complainant has prayed for compensation of Rs.21,00,000/-. But in the instant case it appears that the O.P. Developers had no intention to deprive the purchasers of delivering possession of the said flat since they already had issued a letter dated 21.01.2010 requesting the purchasers to take possession. In view of that we are of opinion that the O.P. Developers and Landowners are in no way liable to pay compensation to the Complainant.
Both points are answered accordingly.
In the result, the petition of complaint is allowed in part on contest without cost. O.P. Nos. 1 and 3 to 7 are directed to handover the possession of the flat in the building having premises No. 55A, Anjuman Ara Begam Road, P.S. Jadavpur, Kolkata 700 033, District 24 Pgs. to the purchasers within 30 days from the date of this order.
MEMBER MEMBER PRESIDENT