State Consumer Disputes Redressal Commission
Sri Shuvendra Bardhan vs M/S. Kalpak Udyog on 26 November, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/331/2013 (Arisen out of Order Dated 28/02/2013 in Case No. Complaint Case No. CC/120/2011 of District South 24 Parganas DF, Alipore) 1. Sri Shuvendra Bardhan S/o Late Samarendra Narayan Bardhan, 226, Santoshpur Avenue, 2nd Floor, Rear Portion, P.S. - Jadavpur, Kolkata - 700 075. ...........Appellant(s) Versus 1. M/s. Kalpak Udyog E/16A, Baghajatin Station Road, P.S. - Jadavpur, Kolkata - 700 086. 2. Sri Haradhan Sarkar, Prop. M/s. Kalpak Udyog 14, Swami Vivekananda Road, P.S. - Jadavpur, Kolkata - 700 032. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. R. K. Choumal Ms. Deblina chakraborty, Advocate For the Respondent: Mr. S. Chatterjee, Advocate ORDER 26/11/2015 DEBASIS BHATTACHARYA, PRESIDING MEMBER
This appeal and FA/362/2013 have emanated from the same impugned order dated 28/02/2013 in CC No. 120/2011 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas (in short, District Forum). So, both the appeals are taken up together for passing a common order.
By the impugned order, Ld. District Forum has allowed the case in part. By FA/331/2013, the Complainant thereof has preferred the appeal against inadequate compensation mainly, while the OPs have preferred FA/362/2013 for remission of the huge cost and compensation mainly, as awarded.
Case of the Complainant is that there was an agreement on 30.5.2007 with the OPs for construction of a residential G + 3 storied building as per sanctioned plan. But, the developer has made and sold out one illegally constructed flat of 500 Sft. approx. in the ground floor without any prior sanctioned plan in place of one watchmen's room, one toilet and open car parking spaces. They have not done the necessary works in the building. They have also not given any shop to the Complainant nor any money and also not given the completion certificate. Accordingly, the Complainant has been incurring an additional rental expenditure of Rs.7, 300/- only p.m. for living in a separate rental house. They have given a part payment of Rs. 45,000/- only, out of Rs.59, 000/- against demurrage charges and the other expenses. They handed over the possession letter of the flat of the Complainant at 2nd floor on 03.3.2011, which he had to collect from the developer's office, and surprisingly the date of the letter was backdated for more than one year by 26.02.2010. So, the case followed.
Case of the OPs is denial of the contentions of the Complainant and that within one month after execution of the unregistered memorandum of agreement dated 30.5.2007, the OP No. 2 being the sole proprietor of the OP No. 1 verbally requested the Complainant to implead his brother, Samir Bardhan and two married sisters, Bulbul Ghosh and Anuradha Roy as parties in the memorandum of agreement, as they have acquired right, title and interest in the schedule property, which was not done. But, after getting verbal assurance from the Complainant, OP No. 2 started the construction work. Lastly, the OP No. 2 handed over possession to the Complainant on 31.01.2010. But the Complainant did not taken possession letter, and subsequently on 03.3.2011, the Complainant collected the possession letter dated 26.02.2010 from the OP No. 2. Accordingly, they prayed for dismissal of the case and also compensation and cost as counter- claim.
It is to be considered if the impugned order is required to be interfered with either in favour of the Complainant or the OPs as per their respective terms or not.
Decision with reasons Ld. Advocate for the Complainant, who is Appellant in FA/331/20013, has submitted that the Ld. District Forum has failed to award due compensation to the Complainant as per the terms and conditions of the agreement between the parties.
Ld. Advocate for the OPs, who are Appellants in FA/362/2013, has submitted that there has been non-joinder of necessary parties in the case. The possession to the Complainant was given on 31.01.2010, but Ld. District Forum made out that it was on 03.3.2011 and given demurrage in favour of the Complainant, which is a wrong on the part of the Ld. District Forum. There has been a proceeding under section 144, Cr.P.C. by some neighbours and land owners in respect of the case property for which there has been delay in the work of construction. The proposition of the Ld. District Forum of unfair trade practice is not a viable one.
As a matter of fact, the Ld. District Forum has considered all the pros & cons of the case. There has been no proper proof that the OPs delivered the possession on 31.01.2010 and not on 03.3.2011. In fact, the letter concerned shows that such possession letter dated 26.02.2010 was received by the Complainant on 03.3.2011. In all, the impugned order is in perfect nature, which should sustain in the facts and circumstances of the case.
Accordingly, both the appeals fail and are dismissed. The impugned order is affirmed. The original order be kept in FA/331/2013 and a photocopy of the same be kept in FA/362/2013. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER