DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT,
ALIPORE, KOLKATA-700 027
>> C.C. CASE NO.: 84 OF 2009 <<
DATE OF FILING: 26.3.2009
DATE OF PASSING JUDGEMENT: 31.08.2009
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Present : President : Dipak Shyam Roy
Member(s) : Amitabha Roy Chowdhury & Sharmi Basu
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COMPLAINANT : Sri Ranada Charan Banerjee,s/o late Annada Charan
Banerjee, 42, Mahatma Gandhi Road, P.S. Thakurpukur, Calcutta – 700 082,
Present address at 536, Mahatma Gandhi Road, P.S. Thakurpukur, Calcutta – 82
- >> : versus : << -
O. P. / O. PS : Sri Shyamal Kumar Maity,s/o late Bankim Chandra Maity,
M/s. Siddheswari Construction, 19/1, K.M. Naskar Road. P.S. Regent Park, Calcutta – 40
and at present address: 42, Mahatma Gandhi Road. P.S. Thakurpukur,Kol – 82.
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>> J U D G E M E N T <<
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This application under Section 12 of the C.P Act, 1986 has been filed by the complainant Sri Ranada Charan Banerjee agaisnt the O.P Sri Shyamal Kumar Maity on the allegation of deficiency in service on the part of the O.P. It has been complained that property situate at 42, Mahatma Gandhi Road within P.S. Thakurpukur ,Kol-82, is a joint property and the complainant is one of the joint owners in respect of the said property and on 17.3.2001 the complainant with his other relations entered into an agreement for development of the said property. As per terms of the said agreement it was decided that a flat measuring about 817 sq.fct be handed over to the complainant as one of the joint owners of the said property. On completion of the project the O.P approached the complainant to accept cash money in lieu of the flat and conspiring the difficulties of the O.P, the complainant accepted the proposal and it was settled that the complainant would be paid a total sum of Rs. 8.5 lacs. In pursuant to such verbal agreement, the O.P issued 4 cheques in favour of the complainant amounting to Rs.8.5 lacs. As the cheques were dishonoured the complainant filed criminal case and under such circumstances in the month of January, 2009 , the O.P approached the complainant for settling the disputes by withdrawing the criminal cases and pleaded his in ability to pay the money and expressed his willingness to make over the vacant possession of the flat as per the original agreement. The complainant believed the assurance of the O.P giving in presence of some witness but he failed to comply with his obligations. Thereafter, the complainant sent letter dated 10.2.2009 to the O.P at his residence and business place requesting him to hand over the flat but both the letters came back with the postal endorsement “Left without address” and “Not claimed”. The complainant has now prayed for a direction upon the O.P to make over the possession of the flat and also for execution and registration of the Deed of Conveyance in respect of the said flat and also for compensation of Rs. 2 lacs for his negligence and inordinate delay in discharging the obligation arising out of the agreement dated 17.3.2001.
Notice was sent to the O.P from this Forum after filing of the case but it came back with the endorsement “N/C” which amounts to good service and none appeared on behalf of the O.P in this case and as such the case was heard exparte.
Points for decision in this case are :
(i) whether the complainant is a consumer and the O.P is a service provider
(ii) whether there is deficiency in service on the part of the O.P as alleged
(iii) whether the complainant is entitled to get reliefs as prayed for.
Finding of the Forum:
The complainant has furnished his evidence on affidavit and has also furnished copy fo the development agreement between the joint owners of the land and the O>P developer. It appears that there was an agreement between the complainant and his two brothers on one side and the O.P developer on the other side. It appears from that development agreement that the complainant and his two brothers are entitled to get 3 flats measurement of which are 930 sq.ft, 705 sq.ft and 817 sq.ft. The complainant ha snow stated in his evidence that the O.P agreed to pay him Rs. 8.5 lacs in lieu of that 817 sq.ft and accordingly four cheques were also given to him but subsequently those cheques were dishonoured and it was further settled that the O.P shall hand over the flat as he has no money. The complainant, though land owner, hired the services of the developer who agreed to develop the land and construct flats and in lieu of that he would get 60 % allocation of the covered area. Therefore, the complainant, one of the land owners, is also a consumer and the O.P is a service provider. By not delivering the possession and by not executing and registering the Deed of Conveyance , the O.P has failed to discharge their obligation which is certainly deficiency in service on the part of the O.P.
We have no reason to disbelieve the unchallenged testimony of the complainant and the case of the complainant is further corroborated by the copies of four dishonoured cheques which are available on record. The complainant is therefore entitled to get possession of the flat and also deed of conveyance executed and registered by the O.P.
Hence Ordered
That (i) the O.P is directed to deliver peaceful vacant possession of flat measuring 817 sq.ft at premises no.42, Mahatma Gandhi Road to the complainant .
(ii) The O.P is also directed to execute and register the Deed of Conveyance in respect of the said flat in favour of the complainant .
(iii) The O.P is further directed to pay Rs.50,000/- to the complainant as compensation towards complainant’s harassment.
(iv) All the orders be complied with within 30 days ,failing which, the O.P shall pay penalty @ Rs.50/- per day till the compliance of the order.
(v) We however pass no order as to the cost.
Member Member President
Dictated and corrected by me
President