State Consumer Disputes Redressal Commission
Sri Arup Kumar Bose vs Sri Pralay Kumar Das on 20 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/739/2012 (Arisen out of Order Dated 12/09/2012 in Case No. Complaint Case No. CC/100/2010 of District South 24 Parganas DF, Alipore) 1. Sri Arup Kumar Bose S/o Late Bidyut Kumar Bose, 27/11, Chandi Ghosh Road, Kolkata - 700 040. 2. Sri Aloke Kumar Bose S/o Late Bidyut Kumar Bose, 27/11, Chandi Ghosh Road, Kolkata - 700 040. 3. Sri Asim Kumar Bose S/o Late Bidyut Kumar Bose, 27/11, Chandi Ghosh Road, Kolkata - 700 040. 4. Sri Goutam Bose S/o Late Bidyut Kumar Bose, 27/11, Chandi Ghosh Road, Kolkata - 700 040. 5. Smt. Dolly Dutta W/o Sri Dilip Dutta, 326/1, N.S.C. Bose Road, Kolkata - 700 047. 6. Smt. Kabita Patranabish W/o Sri Biren Patranabish, 4/23, Seth Bagan Road, Dum Dum, Kolkata - 700 030. 7. Smt. Tandra Roy Chowdhury W/o Sri Tapan Roy Chowdhury, C/o Late Madhab Saha, Radhanath Bhawan, Anandabazar, Naihati, Dist. North 24 Pgs. 8. Sri Rajib Roy S/o Late Mrinal Kanti Roy, Malancha Halishar, Dist. North 24 Pgs. 9. Sri Tridib Roy S/o Late Mrinal Kanti Roy, Malancha Halishar, Dist. North 24 Pgs. ...........Appellant(s) Versus 1. Sri Pralay Kumar Das S/o Late Chinta Haran Das, 32/51, Chandi Ghosh Road, Kolkata - 700 040. 2. Smt. Krishan Das W/o Sri Pralay Kumar Das, 32/51, Chandi Ghosh Road, Kolkata - 700 040. 3. Smt. Dipti Bose W/o Late Jayanta Kumar Bose, 27/11, Chandi Ghosh Road, Kolkata - 700 040. 4. Smt. Rupa Ghosh W/o Sri Sujit Kumar Ghosh, 40/1/1B, Netaji Subhas Ch. Bose Road, Kolkata - 700 040. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Ramesh Kumar Choumal Ms. Debolina Chakraborty, Advocate For the Respondent: Sri Prasanta Banerjee, Advocate Mr. Prasanta Banerjee, Advocate ORDER
20/03/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 100 of 2010 allowing the complaint and directing the OPs to execute and register the deed of conveyance in respect of the flat in question and deliver possession of the same. The OP No.1 was directed to pay cost of Rs.10,000/- and compensation of Rs.50,000/- to the Complainant.
The case of the Complainants/Respondents, in short, is that OP No.1 is the Developer and OP Nos.2 to 10 are the Owners of land. There was development agreement between the Owners and the Developer followed by power of attorney in favour of OP No.1. The Complainants entered into an agreement on 25/01/08 with the OP No.1 for the purchase of a flat in the 2nd floor at the South-West North side of the building for consideration of Rs.12,40,000/-. The Complainants paid Rs.9 lakh to the OP against receipts and last payment was made at 26/11/08 to the OP No.1. Subsequently, the OP No.1 stated that the measurement of the flat in question was 830 sq. ft. and, as such, the amount of the flat should be increased to Rs.13 lakh. The OP, accordingly, made change in the agreement in page nos.5 and 12 mentioning the measurement of the flat as 830 sq. ft. and consideration was fixed at Rs.13 lakh. The OP did not extend cooperation to the Complainants in the matter of obtaining loan from the Bank. However, the Complainants arranged loan from the Bank and intimated the same to the OP No.1. The Complainant requested the OP No.1 to hand over the possession of the flat as per agreement on acceptance of the balance amount of consideration. The OP No.1 started avoiding to hand over the possession of the flat and the garage space with obvious motive to sell the flat at higher price to the 3rd party. The Complainant wrote letters to the OP No.1 on 08/06/09 and 14/07/09, but to no effect. The Complainant issued notice through Learned Advocate on 15/12/09 to OP No.1 requesting to hand over the possession of the flat after accepting the balance amount of consideration. The Learned Advocate on behalf of the OP No.1 replied on 25/01/10 expressing the inability of OP No.1 to hand over the flat and wanted to refund the deposited amount to the Complainant. Finally, after completion of the building the OP No.1 declined to hand over the flat and garage to the Complainant without refunding the said amount. There was negligence and deficiency in service on the part of the OP No.1. The Complainant is entitled to get possession of the flat in question and also the registration of the deed.
The Learned Counsel for the Appellant has submitted that no opportunity was given to the OP/Appellant to file questionnaire and evidence. It is contended that the agreement was cancelled. The Learned Counsel for the Appellant has referred to the decision reported in 2014 (1) CPR 205 (NC) [Sh. D. Vilas Rao, Deputy Manager (Legal) vs. Sri Amit Kumar Sharma]; 2013 (4) CPR 561 (NC) [Ansal Properties & Infrastructure Ltd. & Anr. vs. Indu Dhir]; 2013 (1) CPR 65 (NC) [Delhi Development Authority vs. Mr. Rajendra Singh]; 2014 (3) CPR 155 (NC) [Rajasthan Housing Board Through Secretary vs. Smt. Gyanwati Jain (since deceased) Through LRs & Ors.]; 2013 (2) CPR 447 (NC) [Vijaya Rashmi Developers and Ors. vs. Shri Parshuram Narayan Redij and Ors.].
The Learned Counsel for the Respondent has submitted that the possession was not delivered and the registration was not done by the Appellant. It is contended that out of Rs.13 lakh, Rs.9 lakh was paid by the Complainants to the OP/Appellant. It is contended that the Complainant is a retired person and there is unfinished work in the construction. It is contended that the OP was trying to create 3rd party interest.
We have heard the submission made by both sides and perused the papers on record. The Appellants in the BNA has stated that the Complainants did not comply with their part of obligation under the agreement dated 25/08/08 and, as a result, the same was revoked and/or cancelled. It has further been contended that at present the flat in question has been given to another party and the Complainants are entitled to get back their money towards the flat and there was no deficiency in service on the part of the Appellant. It has further been mentioned in the BNA that there was no agreement for sale of the car parking space.
The Appellant has also filed the completion certificate dated 24/12/09. From the BNA of the Appellant it is clear that 3rd party interest has already been created. In the petition of complaint at paragraph 10 the Complainants have also expressed apprehension about the creation of 3rd party interest. It is the case of the OP/Appellant that the agreement has been cancelled as the Complainants did not make payment of the balance amount as per terms of the agreement and in this connection the Learned Counsel for the Appellant has referred to the decision reported in 2013 (1) CPR 65 (NC) (supra) wherein it has been held that the allotment of flat can be cancelled for default in payment. Admittedly, out of Rs.13 lakh, Rs.9 lakh has been paid by the Complainants. Since it appears from the BNA of the Appellant that 3rd party interest has been created and agreement has been cancelled, we are of the view that the Complainant is entitled to get refund of the amount already pad to the OP/Appellant and get compensation. We, therefore, modify the impugned judgment as hereunder.
The Appeal is allowed in part. The OP No.1 of the complaint, that is, the Developer is directed to refund the amount of Rs.9 lakh, compensation of Rs.9 lakh and litigation cost of Rs.10,000/- to the Complainants within 45 days from this date failing which the interest @ 9% p.a. shall accrue on the aforesaid amount from the date of default till realization. The directions passed by the Learned District Forum in the impugned judgment and order are set aside. The impugned judgment stands modified to the extent stated above. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER