State Consumer Disputes Redressal Commission
Sri Ritesh Talwar. vs Sri Rahul Baid on 11 May, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/123/2011 ( Date of Filing : 16 Dec 2011 ) 1. Sri Ritesh Talwar. S/o Late Suresh Chandra Talwar, Flat no.3A, 3rd Floor, South-Western side, 177, Sarat Bose Road, P.S. Tollygunge, Kolkata-700 026 & also 88A, Madan Mohan Burman Street, Kolkata-700 007. 2. Smt. Pramila Talwar W/o Late Suresh Chandra Talwar, Flat no.3A, 3rd Floor, South-Western side, 177, Sarat Bose Road, P.S. Tollygunge, Kolkata-700 026 & also 88A, Madan Mohan Burman Street, Kolkata-700 007. ...........Complainant(s) Versus 1. Sri Rahul Baid S/O Karan Singh Baid, 10, Canning Street, P.S.- Hare Street, Kolkata-700001. 2. Sri Shivapada Joddar Executor to Estate of Late Santosh Kumar Basu, S/o Late Subodh Kr. Basu, 177, Sarat Bose Road, P.S. Tollygunge, Kolkata - 700 026. 3. Sri Saurabh Baid S/O Anand Singh Baid, 10, Canning Street, P.S.- Hare Street, Kolkata-700001. 4. Sumukhaa Construction 10, Canning Street, P.S. Hare Street, Kolkata - 700 001, ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Complainant: Ms. Sayantani Das., Advocate For the Opp. Party: Mr. Sabyasachi Sen., Advocate Mr. Prabir Kumar Sarkar., Advocate Dated : 11 May 2018 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This is to consider an application under section 17 of the Consumer Protection Act where the complainants prayed for directions upon the OPs no. 4 - 7 to complete the works of installation of intercom system, fire license etc. as set out in schedule 'C' of the petition of complaint, further direction upon the OPs to execute and register the deed of conveyance in favour of the complainants transferring the property referred to in schedule 'B' and 'B1' thereof with a prayer for further compensation to the tune of Rs. 1,00,000/- (Rupees one lakh), litigation cost and other consequential reliefs.
Briefly stated, the case of the complainants was that one Santosh Kumar Basu, Sudhanshu Kumar Base and Anjana Dutta were the owners of the property, as referred to in schedule 'A' of the petition of complaint, and on the expiry of Santosh Kumar Basu the OP no. 4, Siba Prasad Jotdar became the executor of a will, left by said Santosh Kumar Basu on the strength of a probate granted in his favour. The OP no. 4, Sumukhaa Construction/Developer and the original owners as referred to above, entered into a Development Agreement dated 10th June, 2004 with the intention to develop and construct a multistoried building to exploit the said premises commercially and several flats/units/spaces/garages were constructed in terms of the said Development Agreement and on obtaining a sanctioned plan from the Competent Authority. Said original owners also executed a general Power of Attorney in favour of one Samar Purakayastha, the OP no. 1 herein to perform various acts/deeds on their behalf, to represent them for all practical purposes in respect of the development and construction. The aforesaid owners and the OP no. 7/Developer thereafter jointly developed and constructed G + 4 storied building in terms of the Development Agreement and the owners and developer agreed to acquire for themselves as their allotment at 50 : 50 ratio. Pursuant to the terms of said Development Agreement and the general Power of Attorney being acted upon, the aforesaid original owners and the OP no. 7 being in possession of the newly constructed building, entered into an agreement with the complainants for transferring by sale of a flat, measuring 1309 sq. ft., on the 3rd floor (south eastern side) of the building being flat no. 3A having 978 sq. ft. of carpet area, properly described in schedule 'B' and one covered car parking space (no. 2) in the ground floor of the said premises measuring 100 sq. ft., described in schedule 'B1' together with proportionate right, interest in the undivided land beneath the building comprised in the said premises as well as rights over the common areas, amenities and facilities relating thereto for a consideration of Rs. 33,41,600/- (Rupees thirty three lakh forty one thousand six hundred) out of which Rs. 31,51,000/- (Rupees thirty one lakh fifty one thousand) have been paid and a sum of Rs. 1,90,600/- (Rupees one lakh ninety thousand six hundred) were due and agreed to be paid at the time of execution and registration of the deed of conveyance. In January, 2008 the complainants were called upon by the OP no. 7/Developer to take possession of the flat and car parking space, referred to schedule 'B' and 'B1' of the petition of complaint, and subsequent to such possession of the said property the complainants found that the said property was not complete in all respect like intercom facility, fire license with water connections to fire storage reservoir and electrical connection to fire pumps, drainage connection with the building, to demolish the illegal constructions for clearing the path which was the main entrance of the building. The complainants requested the OPs to get all the works completed and to issue a completion certificate to that effect. Several communications have been made including the letters dated 28-012008 and 17-08-2011 to which the OPs agreed to hand over the completion certificate to the complainants after obtaining the same from the Competent Authority of the KMC but ultimately no such certificate was served on them though in the 1st week of July, 2011, the complainants came to know that the completion certificate have been issued by the KMC inspite of incomplete work. The complainants claimed that they were entitled to have the defects removed by way of completion of the incomplete works as referred to earlier as well as by way of executing the deed of conveyance in their favour to perfect their title in respect of the property being the subject matter to the proceeding. The conduct of the OP was although 'deficiency in service' as well as 'unfair trade practice' within the meaning of the Consumer Protection Act, the complainants were entitled to have the reliefs claimed but denial on all the part OPs being detrimental to their interest, led them to take recourse of this Commission claiming reliefs in terms of the prayers as per petition of complaint, as referred to in the earlier part of the judgment.
The OPs no. 4 and 6 filed a joint written version whereas the OPs no. 1, 2, 3 and 7 filed separate written version to contest the complaint case where all the OPs denied the cause of action as averred in the body of the petition of complaint. In their respective written versions, the OPs though did not dispute the factual aspect of the matter but ultimately prayed for dismissal of the complaint case. It was averred in the joint written version, filed on behalf of the OPs no. 4 and 6 that as per owners' allocation receivable by the owners, four covered car parking space was agreed to be made by the OP no. 7 to the owners together 80 sq. ft. covered area on the ground floor, but inspite of repeated demands, the OP no. 7/Developer failed and neglected to make over possession of the car parking space and covered area to the OPs though they admitted that the OP no. 7/Developer was under obligation as per agreement to complete the same at its own cost to the satisfaction of the complainant, if any construction work was found incomplete.
Here all the OPs save and except the OP no. 4 ultimately did not turn up to contest the complaint case. On the other hand the OP no. 4 filed BNA, before the matter was taken up for hearing.
Ld. Counsel appearing for the complainant in course of hearing submitted with all fairness that his client entered into the agreement for purchasing a flat and a car parking space being space no. 6 though his client was in possession of space no. 2 and 3 instead of one space. He also admitted that a sum of Rs. 1,90,600/- (Rupees one lakh ninety thousand six hundred) is due and Ld. Advocate for the OP no. 4/Sibprasad Jotdar agreed to execute and register the deed of conveyance as a confirming party being the owner of the property provided the developer/OP no. 7 executes the deed and registers it in favour of the complainant transferring the title of the flat no. 3A as referred to in schedule 'B' and the car parking space as referred to in schedule 'B1'. Since the other OPs are not before us today at the time of final hearing, we are unable to assess the allegations brought by them in their respective written versions rather on hearing of Ld. Counsel for the parties being complainants and the OP no. 4 we come to the conclusion that the complainant would be entitled to get the reliefs they claimed on payment of balance consideration to the OPs/Developer as well as land owners.
In the result the petition under section 17 of the Consumer Protection Act is allowed on contest against the OP no. 4 but exparte against the rest. The OPs are jointly and severally liable for executing and registering the deed of conveyance in favour of the complainants on acceptance of a balance consideration of Rs. 1,90,600/- (Rupees one lakh ninety thousand six hundred) and they are directed to execute and register the deed of conveyance within 60 days from the date of this order. The cost of registration shall be borne by the complainants. The OPs are also directed to complete the construction work and providing other facilities as prayed for by the complainants who are again entitled to the compensation to the tune of Rs. 20,000/- (Rupees twenty thousand) and a sum of Rs. 10,000/- (Rupees ten thousand) towards litigation costs. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER