Dt. of filing- 15/05/2018
Dt. of Judgement- 03/10/2018
Mrs. Sashi Kala Basu, President
This is complainant filed by Smt. Alo Shikari u/s. 12 of the Consumer Protection Act read with Section 13 of the said Act against Opposite Parties namely (1) Makhan Lal Ghosh ( Developer ) (2) Smt. Gitashree Dey (3) Sri Priyatosh Dey and Smt. Gopa Dey ( owners of the land ) alleging deficiency in service.
Brief fact of the case of the complainant is that Opposite Party no No.1 entered into a development agreement with the land owners /Opposite Parties no.2 to 4 on 28.11.2010 for construction of multi-storied building. Complainant entered into an agreement for sale with the OP No,.1 on 30.03.2011 in respect of a Flat situated on the ground floor at the Kolkata Municipal Corporation Premises No. 90, Sahid Nagar, Mailing address 7/103A, Sahid Nagar, Police Station – Garfa, formerly Police Station – Kasba, Mouza Dhakuria, appertaining to C. C. Dag No. 1577 (P) within the District of South 24 Parganas at the consideration of Rs.3,25,000/-. Petitioner/Complainant paid Rs. 2,80,000/- out of Rs.3,25,000/- to the developer in terms of the said agreement for sale. OP/Developer undertook to handover and deliver the said Flat to the complainant within 12 months from the date of execution of the agreement for sale dated 30.03.2011. Complainant requested several times and lastly on 25.04.2017 to the Opposite Parties to deliver the vacant possession of the Flat mentioned in the second schedule of agreement and to execute and register the deed of conveyance by accepting remaining amount towards consideration money but they failed and neglected to handover vacant possession. Hence this case for a direction to OPs to handover and deliver the vacant possession of the Flat, to pay compensation of Rs. 2,35,000/-, to pay Rs. 1,00,000/- for increasing stamp duty and Rs. 40,000/- for litigation cost and also interest @ 2% per month on the awarded amount till realization.
Opposite Party No.1 has contested the case by filing written version contending inter alia that possession of Flat was handed over to the complainant on 16.03.2015 but she herself failed to retain the possession of the flat and was dispossessed by one Gohardhan Das OP No.1 tried to settle the dispute but his all efforts were in vein. Complainant has suppressed the material facts before this Forum. Complainant has already taken back Rs. 42,500/- out of Rs. 2,60,500/- paid by her . There has not been any unfair trade practice and deficiency in service on the part of the Opposite Party and thus he has prayed for dismissal of the case.
OP No. 2 to 4 did not appear and so case proceeded ex-parte against them.
Complainant has annexed documents with the petition of complaint. They are copy of development agreement, Power of Attorney, agreement for sale, some letters including lawyer’s notices dated 04.05.2015, 20.11.2015 and 09.10.2015.
Both the parties filed their evidence in examination-in-chief with affidavit . They were cross-examined by way of filing questionnaire and reply thereto.
Points for determination
- Whether the complainant is a ‘consumer’ under the Provision of Consumer Protection Act ?
- Is there any deficiency –in-service on the part of alleged service provider ?
- Whether t he complainant is entitled to the reliefs as prayed for ?
Decision with reasons
Point No.1 & 2 :
Both these points are taken –up together for discussion for the sake of convenience and to avoid repetition.
From the agreement for sale filed by the complainant, it is apparent that the complainant entered into an agreement for sale of a Flat in the ground floor on the proposed building having super built up area more or less 428 sq.ft. ( described in the schedule ‘B’ in the agreement ) at a total consideration of Rs. 3,25,000/- . This fact is not in dispute. According to complainant she was supposed to hand over and deliver the vacant possession of the said Flat within 12 months of the execution of the sale agreement but same has not been done by the OPs. In this context it may be pointed out that the letters filed by complainant speaks otherwise. Copy of notice dated 04.05.2015 , sent by the complainant through her Ld. Advocate to one Gobardhan Das is very specific that possession of the flat was handed over to the complainant by the developer. It reads that “ My client Smt. Alo Shikari received the possession letter from Makhan Lal Ghosh (Developer ) on 16.03.2015 for the flat towards the North – West Corner on the ground floor of the building situated at 7/103A, Sahid Nagar, Kolkata – 700 078.
My client locked her flat with her own lock and key after receiving the possession letter”.
So the above mentioned statements in the notice supports the case of the Opposite Party that the possession of the flat was handed over to the complainant. However,it appears from the said notice and other document filed by the complainant that after she got the possession and had kept the flat under lock, on 26.03.2015, the lock was broken by third party ( Gobardhan Das ) who had forcibly taken the possession of the flat. So in effect complainant was dispossessed by a third party.Said notice dated 04.05.2015 also reveals that developer/OP No.1 also had requested to the said Gobardhan Das to vacate the flat by his letter dated 15.04.2015 but he did not vacate.
By delivering the possession of the flat to the complainant on 16.03.3015,developer ( the service provider ) had performed his part of the service and thereby, had complied the agreement. If that be so, than no deficiency can be attributed on the part of the Opposite Party. In such a situation complainant cannot be called a ‘consumer’ within the Provision of the Consumer Protection Act. Her relief lies in a civil suit, since she has been forcibly dispossessed. Thus these points are answered accordingly.
Point No.3 :
In view of the discussions made above, petitioner/complainant is not entitled to any relief as prayed for and thus this case is liable to be dismissed.
Hence,
Ordered
CC/263/2017 is dismissed on contest against Opposite Party No.1 and ex-parte against Opposite Parties No. 2 to 4
