DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No.288/2021
Date of Filing Date of Admission Date of Disposal
2112.2021 31.01.2022 13.08.2024
Complainant/s:- | 1.Munshi Rafikul Alam, S/o. Munshi Matharul Alam, Aushara Palasan, 2.Piyali Das, D/o. Gouranga Das, Both residing at Aushara, Palasan, P.O. Shyamsudar, P.S. Bardhaman, Dist- Bardhaman, Pin-713424. Presently residing at Rashmani Nagar, P.O.. Sodepur, Rashmoni Nagar, Panihati, P.S. Khardah, Dist- North 24 Parganas, Kolkata- 700110. -Vs- |
Opposite Party/s:- | 1.Smt. Sumita Karmakar, W/o. Late Banku Behari Karmakar. 2.Sri Swapan Karmakar. 3. Sri Bholanath Karmakar. 4. Sri Amit Karmakar, Nos. 2 to 4 are sons of Banku Behari Karmakar, all are residing at 7, R.C. Nandi Path, P.O. and P.S. Khardaha, Dist- North 24 Parganas. 5.Smt.Mridula HHHalder, W/o.Sri Ashis Kumar Halder, D/o. Late Banku Behari Karmakar, 83, Thana Road, P.O. B.D Sopan, P.S. Khardaha, Kolkata- 700116, Dist- North 24 Parganas. 6. Smt. Purnima Munsi, W/o. Sri Tarun Munsi, D/o. Late Banku Behari Karmakar, Vill- Mohanpur, Paschim Para, P.O. Sewli Telenipara, P.S.Titagarh, Dist- North 24 Parganas. Pin-700181 7. Sri Haradhan Karmakar. 8. Sri Basudeb Karmakar. 9. Sri Tapan Karmakar, Nos. 7 to 9 are sons Late Gopal Chandra Karmar, all are residing at 6/N RC Nandi Path, P.O. and P.S. Khardah, Dist-North 24 Parganas. 10. Smt. Sabita Pal, W/o. Samir Pal, D/o. Late Gopal Ch. Karmar, 139A, Rabindra Pally, P.O. and P.S. Khardah, Dist- North 24 Pgs, Kolkata-700118. 11. Smt. Sova Rani Mondal, W/o. Sri Kesto Mondal, D/o. Late Gopal Chandra Karmar, Ram Chandra Nandi Path, P.O. and P.S. Khardah, Dist- North 24 Parganas, Kolkata-700117. 12.U. K. Ganguly Construction, regd. office at 12/10/B, Khardah Thana Road, P.O. B.D Sopan, P.S. Khardah, Dist-North 24 Parganas, Kolkata- 700116, represented by its Proprietor Sri Ujjwal Kumar Ganguly, S/o. Uttam Kr. Ganguly. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainants above named filed this complaint under Section 35 of the C.P. Act read with Section 38, 39 of C.P. Act against the aforesaid opposite parties praying for direction upon the O.P. No.12 to complete the job mentioned in the petition of complaint, direction to the opposite parties to execute and register deed of conveyance in respect of the said flat mentioned
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in the ‘B’ schedule of the complaint, supply of completion certificate, direction to the opposite parties to pay compensation assessed by the commission, execute and register the sale deed in respect of the aforesaid flat within specified time fixed by the commission, cost of the case and other reliefs.
They alleged that O.P. Nos. 1-11 are the owners of ‘A’ schedule land and O.P. No. 12 is a developer. Development agreement was prepared and executed in favour of O.P. No.12 by O.P. Nos. 1-11 on 25.05.2018. One registered development power of attorney was also executed in favour of O.P. No.12 by the O.P. Nos. 1-11.
O.P. No.12 proposed to sell out a self-contained flat vide No. 4/C in the 4th floor covering an area of 792 sq.ft (super built up area) is 990 sq.ft with the consideration of Rs. 16,00,000/- and complainant agreed to purchase the same and complainant paid Rs.15,00,000/- on 20.03.2020. On that time one agreement for sale was prepared. On 05.03.2020 O.P. No.12 verbally asked the complainant to take delivery of possession in respect of ‘B’ schedule flat and on that time O.P.No.12 issued a possession letter dated 20.03.2020 it was settled that at the time of registration of deed of conveyance o.P. No.12 will take the balance consideration of Rs. 1,00,000/-.
At the time of taking the aforesaid possession complainants found that most of the work of the said flat are incomplete.
After getting the possession predecessor of complainants requested the O.P. No.2 to complete the work but he did not take any action. Even he did not take any action for execution and registration of deed of conveyance. Hence the complainants filed this case.
O.P. Nos. 1-6 filed W.V and denied the entire allegation contending interalia that the case is not maintainable, the case is barred by limitation. They further contended that the present dispute is in between complainants and O.P. No.12, O.P. Nos. 1-6 have nothing to do. The burden of proof lies upon the complainants and O.P.-12 to establish their claim. They further contended that as a land owner they did not receive their respective share. They prayed for dismissal of the case.
O.P. No.12 filed another W.V and denied the entire allegation contending interalia that the case is not maintainable, case is baseless, false and prepared with frivolous ground, case is barred by limitation. He further contended that out of total consideration money i.e. Rs.16,00,000/-,O.P.No. 12 will get Rs. 1,00,000/- from the complainant. He denied the fact that he verbally asked the complainant to take delivery of possession and issue of possession certificate. He denied regarding incomplete work of the aforesaid flat. He prayed for dismissal of the case.
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Decisions with Reasons
We have heard the Ld. Advocate for the complainant at length. On the date of hearing of argument none was present on behalf of O.P. Nos. 1-6 and on behalf of O.P. No.12.
As result we did not get any chance to hear them on the point of subject matter of this case. On the date of hearing of argument only complainant filed BNA.
We have carefully gone through the petition of complaint filed by the complainant. W.V. filed by O.P. Nos. 1-6, W.V. filed by O.P. No.12, affidavit-in-chief filed by the complainant and BNA filed by the complainant.
On perusal of the petition of complaint we find that the complainant stated therein that one agreement for sale was executed on 20.03.2020 relating to sale of flat specifically mentioned in the ‘B’ schedule of the petition of complaint. He further stated that he gave Rs. 15,00,000/- in favour of the O.P. No.12 and O.P. No.12 by issuing a possession letter get the possession of the said flat in his favour.
On perusal of agreement for sale dated 20.03.2020 we find that said document is a registered document and O.P. No.12 executed the said document on his behalf and on behalf of O.P. Nos. 1-11 as a constituted attorney. Accordingly, it is clear before us that said agreement for sale dated 20.03.2020 is binding upon the O.P. Nos. 1-11 as a land owners and O.P. No.12 as a developer. So, none of O.P. Nos. 1-12 can deny the said document.
We also find from the said document that complainant paid Rs. 15,00,000/- at the time of execution of aforesaid agreement out of Rs. 16,00,000/-. So, it is also clear before us that O,.P.Nos. 1-12 are entitled to Rs. 1,00,000/- from the complainant as a balance consideration amount.
On perusal of possession letter dated 20.03.2020 we find that O.P. No.12 granted the said possession letter in favour of the complainant.
We also find from the record that on the basis of aforesaid possession letter complainant is in possession of ‘B’ schedule flat.
O.P. No.12 denied the entire fact in his W.V. but failed to established the same by sufficient documentary evidence as well as oral evidence.
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So, it is clear before us that he gave the possession of ‘B’ schedule flat in favour of complainant and he did not issue any possession letter in favour of the complainant.
Accordingly, we have no hesitation to say that complainant being a purchaser is in possession of the ‘B’ schedule flat and he paid Rs. 15,00,000/- out of Rs. 16,00,000/-.
` On perusal of copy of legal notice dated 30.03.2021 we find that before filing of this case complainant gave legal notice but did not get any fruitful result.
It is further allegation of the complainant that O.P. No.12 not yet taken any steps for execution of sale deed in his favour after taking balance consideration of Rs. 1,00,000/-.
On perusal of documents of record we find that complainant has able to established the allegation before this commission by sufficient evidence.
The aforesaid act which has done by the O.P. Nos. 1-12 are nothing but deficiency in service.
On perusal of record we find that complainants are the consumer and O.Ps are the service provider.
Having regard to the aforesaid discussion we are of the firm view that the complainants have able to established their grievances by sufficient evidence beyond reasonable doubt and they are entitled to reliefs as per their prayer.
In the result, the present case succeeds.
Hence,
It is
Ordered:-
that the present case be and the same is allowed on contest against the O.P. Nos. 1 and 6-12 and allowed exparte against the rest with cost of Rs. 5,000/- to be paid by O.P. Nos. 1-12 in favour of the complainant.
O.P. Nos. 1-12 jointly or severally are directed to execute and register the sale deed in favour of the complainant in respect of ‘B’ schedule property after taking Rs. 1,00,000/- as balance consideration amount within 45 days from this day failing which complainants shall have liberty to put this order into execution.
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O.P. Nos. 1-12 jointly or severally are directed to complete the pending works of ‘B’ schedule property within 45 days from this day failing which complainants shall have liberty to put this order into execution.
O.P. Nos. 1-12 jointly or severally are directed to pay compensation amounting to Rs. 50,000/- in favour of the complainant within 45 days from this day failing which complainants shall have liberty to put this order into exution.
Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
