State Consumer Disputes Redressal Commission
Sri Lakshman Prasad vs Smt. Asima Marick on 12 October, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/121/2016 1. Sri Lakshman Prasad S/o Lt. Baijnath Ram, 137, Brahmapur Road, Harisava Math, Usha Park, PS. Bansdroni, Kolkata -700 084. 2. Smt. Janaki Devi W/o Sri Lakshman Prasad, 137, Brahmapur Road, Harisava Math, Usha Park, PS. Bansdroni, Kolkata -700 084. 3. Smt. Sugandhi Devi W/o Sri Lakshman Prasad, 137, Brahmapur Road, Harisava Math, Usha Park, PS. Bansdroni, Kolkata -700 084. ...........Complainant(s) Versus 1. Smt. Asima Marick W/o Lt. Gobinda Marick, C/o Sambhunath Sadhukhan, 107, P.N. Mitra Lane Brick Field Road, P.S. Behala, Kolkata -700 53. 2. Sri Mintu Goswami S/o Ranjit Goswami, 28, Desha Pran Sashmal Road, behin Jayashree Unnayan Samity, P.S. Charumarket, Kolkata-700 033. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Sayak Pal, Advocate For the Opp. Party: Dated : 12 Oct 2017 Final Order / Judgement Date of filing - 30.03.2016 Date of hearing - 15.09.2017 The instant complaint under Section 17 (inadvertently mentioned under Section 12A) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of intending purchasers against the landowner (Opposite Party No. 1) and developer (OP No.2) on the allegation of deficiency in services on the part of them in respect of a flat in a consumer dispute of housing construction.
Succinctly put, complainant's case is that on 07.06.2013 the complainants entered into an agreement with the Opposite Parties to purchase of entire 1st floor measuring about 950 sq. ft. super built up area lying and situated at Premises No.102/Q, P.N. Mitra Lane, Brick Field Road, P.S.- Behala, Kolkata - 700053, Dist- South 24 Parganas within the local limits of Ward No.116 of Kolkata Municipal Corporation at a total consideration of Rs.21,00,000/-. The complainants have stated that they have already made payment of Rs.17,00,000/- to OP No.2/developer on diverse dates as part consideration amount. It was decided that the complainants shall pay the balance consideration amount of Rs.4,00,000/- on the date of execution and registration of Sale Deed in favour of the developer. The complainants have alleged that the OP Nos. 1 & 2 in connivance with each other are standing in the way to complete the flat and in this regard the correspondences and letters went in vain. Hence, the complainants lodged the complaint with prayer for several reliefs, viz. - (a) an order directing the OPs to deliver possession and to execute the Sale Deed; (b) to pay compensation of Rs.5,00,000/- and (c) litigation cost of Rs.1,00,000/-.
The OP No.1/landowner appeared but did not file written version within the period as prescribed in Section 13(2)(a) read with Section 18 of the Act and the decision of Three-Judge Bench of Hon'ble Apex Court reported in 2016 (1) Supreme 319 (New India Assurance Company Limited - Vs. - Hilli Multipurpose Cold Storage Pvt. Ltd.) and as such by Order No.05 dated 18.11.2016 this Commission passed an order that the complaint will proceed against OP No.1 exparte. It also reveals that despite service of notice, the OP No.2/developer did not come to contest.
Having heard the Ld. Advocate for the complainants and on perusal of the materials on record, it would reveal that OP No.1 was the owner of a piece of land measuring about 2 cottahs at Premises No.102/Q, P.N. Mitra Lane, Brick Field Road, Kolkata - 700053. During possession and enjoyment of the said property, OP No.1 entered into an agreement for Development with the OP No.2 on 08.10.2012. The OP No.1 has also executed a registered General Power of Attorney in favour of OP No.2 on 10.10.2012.
The overwhelming evidence on record go to show that 07.06.2013 the complainants entered into an agreement with the Opposite Parties to purchase of entire 1st floor measuring about 950 sq. ft. super built up area lying and situated at Premises No.102/Q, P.N. Mitra Lane, Brick Field Road, P.S.- Behala, Kolkata - 700053, Dist- South 24 Parganas within the local limits of Ward No.116 of Kolkata Municipal Corporation at a total consideration of Rs.21,00,000/-. The materials on record also indicates that complainants have already paid Rs.17,00,000/- to the OP No.2 as part consideration amount towards the said total consideration amount. The complainants have agreed to pay the balance amount of Rs.4,00,000/- in the credit of the OP No.2 on the date of delivery of possession and execution of the Sale Deed.
The parties are bound by the agreement. In the Paragraph-4 of the Agreement for Sale, the OP No.2/developer undertook to deliver the khas vacate possession to the complainants within 6 months from the date of execution of Agreement for Sale dated 07.06.2013. It is evident that the opposite parties could not keep their promise and as such they are deficient in rendering services to the complainants. In fact, the complainants being 'consumer' as defined in Section 2(1)(d)(ii) of the Act hired the services of the OPs to buy a flat on payment of Rs.21,00,000/- but despite receipt of notice 17,00,000/- the OPs have not shown any interest to fulfil their part of obligations and as such they are deficient in services as embodied in Section 2(1)(g) read with Section 2(1)(o) of the Act.
Considering the facts and circumstances, the complainants are entitled to some relief as prayed for. In my view, an order directing the opposite parties to deliver possession and to execute the Deed of Conveyance in respect of 2nd Schedule of the Agreement for Sale subject to payment of balance amount of Rs.4,00,000/- in favour of OP No.2 will meet the ends of justice. Moreover, the manner and attitude of the developer creates a stress and mental pain to the complainants and considering the same, I think a compensation of Rs.2,00,000/- would be proper in this case. The situation compelled the complainants to knock the door of this Commission and as such they are entitled to litigation cost which I quantify at Rs.10,000/-.
Resultantly, the petition of complaint is allowed exparte. The OP Nos. 1 & 2 are jointly and severally directed to deliver possession and to execute the Sale Deed in respect of 2nd Schedule as mentioned in the Agreement for sale in favour of the complainants within 30 days from date subject to payment of Rs.4,00,000/- in favour of OP No.2. The OP No.2 is directed to pay Rs.2,00,000/- as compensation and Rs.10,000/- as litigation cost aggregating Rs.2,10,000/- within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its full realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER