State Consumer Disputes Redressal Commission
Sri Ranjan Ghosh vs Sri Gopal Dhar on 9 October, 2013
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/536/2012 (Arising out of order dated 29/06/12 in Case No.CC/240/2011 of District Consumer Disputes Redressal Forum, Alipore, South 24-Parganas) DATE OF FILING:27/08/12 DATE OF FINAL ORDER:09/10/13 APPELLANT : Sri Ranjan Ghosh Proprietor of M/s Resources Developer 25A, Jatin Bagchi Road P.S. Lake, Kolkata-700 029 RESPONDENT : Sri Gopal Dhar S/o-Sri Nitya Nanda Dhar C-72, Gosthatala New Scheme P.S. Regent Park Kolkata-700 084 PROFORMA RESPONDENT : Smt. Arati Das W/o-Ajit Kumar Das Permanent Address: 4/75, Netaji Nagar P.S. Jadavpur Kolkata-700 040 Present Address: 180, Gosthatala P.S. Regent Park Ward No.111, Kolkata-700 084 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Sukalyan Sarkar Ld. Advocate FOR THE RESPONDENTS : Mr. A. K. Dutta Ld. Advocate Mr. S. Mukherjee Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.240 of 2011 allowing the complaint ex parte against the OP Nos.1 and 2 with cost of Rs.10,000/-. The OPs were directed to handover the possession of the flat and also to execute and register the deed of conveyance within one month from the date of passing the order. The OPs were further directed to pay Rs.20,000/- as compensation within the specified time failing which the entire sum will carry interest @ 9% p.a. from the date of default till realisation.
The case of the complainant/respondent, in short, is that there was a development agreement between the landlord and the developer on 12/06/01 followed by power of attorney in favour of the developer. The complainant entered into an agreement with the developer on 14/06/04 to purchase the flat as described in the petition of complaint at a consideration of Rs.5,40,000/-. The complainant paid Rs.5,03,200/- and the balance amount was Rs.36,800/- to be paid by the complainant at the time of registration. The OPs did neither deliver possession nor execute and register the deed of conveyance. For the said reason, the complaint was instituted before the Learned District Forum.
The Learned Counsel for the appellant/developer has submitted that the development agreement was executed by the land owner and thereafter there was agreement with the purchaser. It is contended that the suit is pending between the parties and there is also a criminal case filed by the purchaser. It is submitted that during the pendency of the complaint case a Civil Suit bearing T.S. No.65 of 2004 has been filed. It is contended that the petition for maintainability of the complaint case was not disposed of. The Learned Counsel for the appellant has referred to the decision reported in 2012 (3) CLJ (Cal) 291 [Smt. Rita Das Vs. Mrs. Jayashri Ghosh & Ors.].
The Learned Counsel for the respondent/complainant has submitted that the suit was dismissed for default as the promoter did not appear. It is submitted that the complainant is ready to pay the balance amount of consideration money. It is submitted that the appellant filed an affidavit dated 21/11/08 with the assurance to deliver possession within seven days. The land owner is not contesting. The Learned Counsel has referred to the decision reported in III (2009) CPJ 417 Delhi High Court (DB) [Hindustan Motors Ltd. Vs. Amardeep Singh Wirk & Ors.]. It has been submitted that the decision referred to by the Learned Counsel for the appellant is not applicable.
We have heard the submission made by both sides and perused the papers on record.
Admittedly, there was an agreement between the purchaser/complainant and the developer. It is also an admitted fact that neither possession has been delivered nor the deed has been registered. The Learned District Forum has recorded that the OP No.1 appeared, but did not file any W.V. or documents. It has been specifically contended by the respondent/complainant that the suit was dismissed for default as the promoter did not appear. It has been contended that the petition for challenging maintainability of the complaint case was filed on 27/06/12 and the judgment was delivered on 29/06/12.
It has been observed by the Honble Apex Court in the decision reported in 1999 (3) CPR 67 (SC) [Mr. France B. Martins & Anr. Vs. M/s Mafalda Maria Teresa Rodrigues] that where builder though delivered flat as per agreement but failed to execute sale deed, C. P. Commission was justified in giving direction to builder for specific performance of contract.
Relying on the aforesaid judgment and considering the fact that the OPs of the complaint did neither deliver the possession nor execute the deed of conveyance, we are of the considered view that the Learned District Forum rightly passed the impugned judgment and order. There is no ground to interfere with the findings of the Learned District Forum.
In the result, the appeal fails and the same stands dismissed. We make no order as to costs.
MEMBER(SC) MEMBER(L) PRESIDENT