DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 210/2016
Date of Filing: Date of Admission Date of Disposal:
04.04.2016 18.04.2016 29.05.2017
Complainant = Vs. = O.P.
Sri. Tapan Saha, Sri. Dilip Deb
S/O Late Madhab Chandra Saha S/O Late Anil Chandra Deb
Prop. Of Saha Blouse Centre
Residing at:2,M.B.Road, Proprietor of Sri Ram Construction
Belgharia, P.S: Belgharia,
Kolkata-700056 Office cum Resi: 3/3, M.B. Road,
P.S: Belgharia, Kolkata-700056
P R E S E N T : Sri. Pradip Kumar Bandopadhyay ………………..President
: Sri. Siddhartha Ganguli………………………………Member
:-Smt. Kabita Acharjee(Goswami) ………………… Member
J U D G E M E N T
Brief facts of the case of the complainant is that in pursuant to two agreements for sale held between the complainant and the O.P dated. 10.12.2005 & 28.05.2006 the complainant booked one shop in the premises No: 2, Madhusudan Banerjee Road, P.S: Belgharia, Kolkata-700056,under Mouza:Belgharia,J.L No: 3, R.S No: 17,Touzi No: 172, R.S Khatian No: 24, R.S Dag No: 1614, Municipal holding No: 2116, Within the jurisdiction of Belgharia P.S, Within the local limits of Kamarhati Municipality in Ward No: 34,under Dist:-24Parganas(N), A.D.S.R.O office at Cossipore Dumdum from the O.P and the consideration money had been fixed at Rs 3,50,000/ and it was agreed by the O.P that he, being a promoter/developer of the said property would construct a building over the land i.e for residential flats, shop rooms, garage etc. and after completion he would give the possession of the shop room within the stipulated period of time in E-10, in Block-2, measuring about 271 sq.ft in the Ground floor (South and west side)to the complainant and execute the sale deed after taking the full and final payment.
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It is contended by the Complainant that he was a tenant of the landowner and in the schedule mentioned property he had a shop thereon and as the O.P developer intended to build a building on the schedule mentioned property and willing to accommodate the Complainant in the said newly constructed building he assured to give a pucca shop room measuring about 171 sq.ft., which he had been in possession prior to the construction to the complainant and a written agreement had been made between the parties in that regard on10.12.2005 and it was agreed by the parties that the O.P developer would bear the cost of shifting and during the construction period he would pay Rs.7000/ per month to the complainant for the purpose of loss of this business for the intervening period.
It is further contended by the complainant that for the shop measuring 171 sq.ft. the consideration amount should be the shifting charge and monthly payment of Rs.7000/ by the O.P to the Complainant for the loss of business sustained by the Complainant.
It is further contended that the Complainant was willing to purchase further in the said premises from the O.P and both the parties had entered with another agreement dated 28.05.2006 by which the Complainant was willing to purchase 100 sq.ft. in addition to 171 sq.ft,as stated above, totalling 271 sq.ft. ,i.e a shop room measuring 271 sq.ft. in total and for which consideration money was fixed at rs.3,50,000/` and he paid the entire amount on different dates.
It is further stated by the complainant that he on several dates paid such amount of money as consideration towards the payment of purchase of the said shop room measuring about 100 sq.ft. and performed his part in view of the agreement dated 28.05.2006 and the O.P also paid consideration in view of the agreement dated. 10.12.2005 for the shop measuring 171 sq.ft.,and in view of both the agreements the Complainant is entitled to get a shop room measuring 271 sq.ft. as per the schedule and the O.P also handed over the possession of the said shop to him.
But the main contention of the complainant is that the O.P did not execute the sale deed in favor of the complainant despite taking the entire amount and adopted dilly-dallying tactics, though the complainant on a numerous times requested him to execute the sale deed in terms of both the agreements. He further stated that the O.P is duty bound to execute the sale deed as per the agreement dated. 28.05.2006 & 10.12.2005.
It is further contended by the complainant that the O.P violated the terms and conditions of the agreements and adopted unfair trade practice with some ulterior motive and avoiding the complainant, though the complainant is still
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ready and willing to get the shop room registered from the O.P. It is the allegation of the complainant that he O.P is/was negligent and deficient in providing service by not executing the sale deed in terms of the agreements as stated above and for his negligent act and deficient service towards the complainant, the complainant has suffered mental pain and agony and was compelled to lodge this case before this Forum for proper redressal.
The complainant along with his complaint filed the relevant documents as per annexure, which are as follows:-
- Copy of agreement dated 28.05.2006 made between the parties consisting of 2 pages, in which on both pages transactions have been recorded.
- Copy of agreement dated 10.12.2005 made between the parties, consisting of 05 pages, in which the consideration is recorded on its 3rd page.
The notice was sent to the O.P and the O.P appeared at this Forum through his Advocate. But on the subsequent dates the O.P remained absent and did not file W/V and accordingly an ex-parte order was passed against him .
During hearing the Complainant filed written examination-in-Chief and submitted the relevant documents. He also submitted written argument.
Considering the Complaint petition, document annexed, evidence adduced by the Complainant as well as hearing of the complainant, the following points have been framed:-
- Is the complainant a consumer?
b) Is the case maintainable in this Forum?
c) Was the O.P deficient in service towards the Complainant ?
d) Is the complainant entitled to get any relief or reliefs as prayed for?
Decision with Reasons
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
It appears from the materials on record that the complainant of this case has booked a shop room in the schedule mentioned property as stated above from the O.P and two agreements for sale have been done by the parties, one for 171 sq.ft dated 10.12.2005 for which the O.P would pay the consideration and for
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100 sq.ft. dated 28.05.2006 for which the complainant would pay the consideration of Rs.3,50,000/,total area 271 sq.ft.and in terms of such agreements the Complainant is entitled to get a shop measuring about 271 sq.ft and in furtherance of such agreements both the parties paid the consideration amount. The complainant has paid the entire amount in terms of the agreement dated 28.05.2006 on different dates and the O.P also handed over the possession of the shop room measuring about 271 sq.ft.as stated above to the complainant.
We have carefully examined the complaint petition, affidavit-in –chief, documents of the complainant and written argument filed by the Complainant and hold the view that the complainant is a consumer in terms of Sec-2(1)(d) of the C.P.Act,1986 and the dispute between the parties is a consumer dispute.
Both the parties are residing within the territorial jurisdiction of this Forum and the value claimed/relief claimed within the limits of this Forum and the cause of action has arisen within the jurisdiction of this Forum and it is continuing and hence we hold the view that the case is well maintainable in this Forum
The crux of the matter is that though the O.P handed over the possession of the shop room to the Complainant but he did not execute the sale deed despite repeated requests and offering the balance payment by the Complainant and therefore, we hold the view that the O.P caused deficiency in service towards the Complainant by not executing the sale deed in terms of Sec-2(1)(g) of the C.P.Act,1986.
Had the O.P executed the sale deed as stated above within the time, the Complainant would not have approached this Forum and filed this case in order to get redressal. Here the O.P was negligent and deficient in service towards the Complainant and hence in our view the O.P should execute the sale deed forthwith and it is his moral as well as his contractual obligation to do it.
As the O.P did not execute the sale deed within the stipulated time and also after repeated request made by the Complainant, we hold the view that such type of attitude is very detrimental to the general innocent consumers at large. The nonperformance of the O.P to execute the sale deed was intentional which created mental pain and agony to the mind of the Complainant and hence the O.P should compensate him.
The O.P entered his appearance before this Forum through his Ld. Advocate on 08.06.2016 but on subsequent dates he remained absent and as such an ex-parte order was passed against him. He did not even bother to appear and file written
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version in connection with the case. Here he lost his opportunity to deny the allegations levelled against him by the complainant and he could have proved his case .
Considering the nature of the case we think that a sum of Rs.10,000/ is just and appropriate to fix as compensation. In addition to that an amount of Rs.2000/ has been fixed as litigation cost and the O.P should pay the same to the Complainant.
Hence, all the points have gone in favor of the Complainant and the case of the complainant has therefore, succeeded.
Hence, it is
Ordered
That the Complaint be and the same is allowed ex-parte against the O.P but in part with cost.
O.P is directed to execute the sale deed in favour of the Complainant by way of registry within 30 days of the shop room as stated in the schedule of the Complaint petition in view of the agreements dated 28.05.2006 & 10.12.2005.
O.P is further directed to pay a sum of Rs.10,000/ as compensation and Rs.2,000/ as litigation charge ,total Rs.12,000/ to the Complainant within 30 days from the date of this Order, failing which the entire amount shall carry an interest @6% p.a till realization.
Let free copies be given to the parties concerned.
Member Member President
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