State Consumer Disputes Redressal Commission
Dr. Partha Sarathi Deb vs Ma Anjana Infraprojects Pvt. Ltd. on 29 May, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/296/2017 ( Date of Filing : 19 Apr 2017 ) 1. Dr. Partha Sarathi Deb S/o Lt. Girija Kumar Deb, R.K. Mission Road, Karimganj, P.O. & P.S. - Karimganj, Dist. Karimganj, Pin - 788 710, Assam. 2. Mrs. Susmita Deb W/o Dr. Partha Sarathi Deb, R.K. Mission Road, Karimganj, P.O. & P.S. - Karimganj, Dist. Karimganj, Pin - 788 710, Assam. ...........Complainant(s) Versus 1. Ma Anjana Infraprojects Pvt. Ltd. 4/33, Bijoygarh, P.S.- Jadavpur, Kolkata - 700 032. 2. Mr. Ranjit Roy, Director, Ma Anjana Infraprojects Pvt. Ltd. S/o Lt. Ajit Kr. Roy, 4/33, Bijoygarh, P.S.- Jadavpur, Kolkata - 700 032. 3. Smt. Mousumi Chatterjee D/o Sri Ram Narayan Chatterjee, C/o Asish Naskar, Barhans Fartabadi(Rice Mill), P.S.- Sonarpur, Kolkata- 700 084, Dist. South 24 Pgs. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Souvik Das, Advocate For the Opp. Party: Dated : 29 May 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of a couple/ intending purchaser against the developer/builder and its Director (Opposite Party Nos.1 & 2) and the landowner (Opposite Party No.3) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a capsulated form, the Complainants' case is that on 16.06.2014 they entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 1490 sq. ft. super built up area on the 1st floor being Flat No.1C together with a car parking space of 120 sq. ft. on the ground floor in a multi-storied building lying and situated at Holding No.13, Mouza-Elachi, under R.S. Plot Nos. 218 & 219 (L.R. Plot No.697 & 256) of R.S. Khatian No.668 and L.R. Khatian Nos.478 & 647 under P.S.- Sonarpur, Dist- South 24 Parganas within the local limits of Ward No.26 of Rajpur-Sonarpur Municipality at a total consideration of Rs.48,00,000/-. The complainants have stated that they have already paid Rs.36,00,000/- as part consideration amount out of which the OP Nos. 1 & 2 have not enchased only a cheque of Rs.2,00,000/- and also received Rs.1,05,060/- as service tax. The complainants have also stated that as per terms of the Agreement, the complainants were under obligation to complete the building and handover the subject flat within 18 months from the date of execution of Agreement for Sale. The complainants have alleged that they were/are ready and willing to fulfil their part of obligations but the OP Nos. 1 & 2 have failed to keep their promise and in this regard all the requests and persuasions including the legal notice dated 25.02.2017 went in vain. Hence, the complainants have lodged the complaint with prayer for several reliefs, viz. - (a) a direction upon the OP Nos. 1 & 2 to deliver possession of the subject flat and one car parking space as per terms of the agreement after completion of the same in all respects alternatively refund the entire part consideration money of Rs.34,00,000/- + service tax of Rs.1,05,060/- along with interest thereon @ 18% p.a., (b) to obtain completion certificate from the Municipality; (c) to pay Rs.7,00,000/- as compensation for harassment and mental agony and (d) Rs.30,000/- as costs of litigation.
Despite service of notice, the Opposite Parties did not appear to contest.
During hearing of the case, on behalf of complainants, complainant no.1 Dr. Partha Sarathi Deb has tendered evidence on affidavit on behalf of himself and also on behalf of his wife i.e. complainant no.2. Apart from the same, the complainants have relied upon several documents. At the time of final hearing, a brief notes of argument has been filed by the complainants.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the complainants.
On perusal of parties of complaint and the evidence on record, it would reveal that OP No.3 was the owner in respect of a piece of land measuring about 9 cottahs 06 chittaks lying and situated at Holding No.13, Mouza-Elachi, under R.S. Plot Nos. 218 & 219 (L.R. Plot No.697 & 256) of R.S. Khatian No.668 and L.R. Khatian Nos.478 & 647 under P.S.- Sonarpur, Dist- South 24 Parganas within the local limits of Ward No.26 of Rajpur-Sonarpur Municipality. On 05.12.2011 OP No.3 had entered into an agreement with OP No.1 Construction Firm in order to raise a G+5 storied building over the said land as per plan sanctioned by Rajpur-Gopalpur Municipality. On 27.02.2012 the OP No.3 executed and registered a General Power of Attorney authorising OP No.2, one of the Directors of OP No.1/Company empowering him to enter into Agreement for Sale, Deed of Conveyance etc. in respect of developer's allocation. By dint of the power conferred upon him, the OP No.2 being Director of OP No.1 Construction Firm had entered into an agreement to sell a self-contained flat measuring about 1490 sq. ft. super built up area on the 1st floor being Flat No.1C together with a car parking space of 120 sq. ft. on the ground floor in the said building at a total consideration of Rs.36,00,000/-.
It is stated by the complainants that they have paid a total sum of Rs.36,00,000/-, effectively Rs.34,00,000/- as OP Nos. 1 & 2 did not encash a cheque of Rs.2,00,000/- towards part consideration and Rs.1,05,060/- as service tax. Though the complainants have failed to produce any money receipts as it was not handed over to them but the statement of bank accounts produced by the complainants clearly suggest that they have paid to the developer a sum of Rs.34,00,000/- + Rs.1,05,060/- = Rs.35,05,060/-. As per terms of the Agreement, the OP Nos. 1 & 2 were under obligation to handover the subject flat after completion within 18 months from the date of Agreement for Sale. However, the OP Nos. 1 & 2 have failed to fulfil their part of obligations. The complainants have already paid more than 75% of the total consideration amount and ready to pay the balance amount but the OP Nos. 1 & 2 are in no mood to keep their promise. The Legal Notice dated 25.02.2017 given by the complainants through their Advocate addressing to the OPs also turned a deaf ear.
Therefore, it is quite evident that the complainants being residence of Karimganj in Barak valley of Assam with an intention of having a roof of their own at Kolkata or in its suburb being 'consumer' within the meaning of Section 2(1)(d) of the Act hired the services of OP Nos. 1 & 2 on consideration and despite receipt of bulk consideration amount, the OP Nos. 1 & 2 have failed to keep their promise and was found deficient in rendering services as per definition of Section 2(1)(g) read with Section 2(1)(o) of the Act. However, the complaint against OP No.3 must fail.
Considering the above, the complainants are entitled to some reliefs. In my view, a direction upon the opposite party nos. 1 & 2 to deliver possession and to execute Sale Deed in favour of the complainants after obtaining Completion Certificate from the Rajpur-Sonarpur Municipality within 60 days from date on receipt of balance consideration amount will meet the ends of justice or alternatively the OP Nos. 1 & 2 to refund Rs.34,00,000/- + Rs.1,05,060/- aggregating Rs.35,05,060/- along with compensation thereon in the form of interest @ 18% p.a. from the date of each payments till its realisation will subserve the object of justice. As the situation compelled the complainants to lodge the complaint, the complainants are entitled to litigation cost which I quantify at Rs.10,000/-.
With the above discussion, I dispose of the complaint with the following directions:-
The Opposite Party Nos.1 & 2 are directed to deliver possession of the subject flat and car parking space and to execute the Deed of Conveyance in respect of the property as mentioned in 2nd Schedule of Agreement for Sale dated 16.06.2014 in favour of the complainants after obtaining Completion Certificate from the Rajpur-Sonarpur Municipality within 60 days on receipt of balance consideration amount in default the Opposite Party Nos.1 & 2 are directed to refund Rs.35,05,060/- along with compensation in the form of interest @18% p.a. from the date of each payments till its realisation with 60 days from date;
The Opposite Party Nos.1 & 2 are directed to make payment of Rs.10,000/- in favour of the complainants as costs of litigation within 30 days from the date of order otherwise the amount shall carry interest @8% p.a. from date till its recovery.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER