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Bapi Saha @ Satyajit Saha & Others v/s Dipti Bose

    First Appeal No. 405 of 2019

    Decided On, 20 January 2022

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER

    For the Appellants: Mousumi Chakraborty, Advocate. For the Respondent: --------



Judgment Text

Bhattacharya, Member

The instant appeal has been directed by the Appellants/OPs (hereinafter referred to as OPs) against the judgment/final order dated 15.03.2019 passed by erstwhile DCDRF , South 24 Parganas in CC/426/2015.

Facts of the case in brief are that the father of the Appellants/ OPs (hereinafter referred to as ‘OPs’) , Sudarshan Saha, since deceased, had entered into a Bengali agreement for sale / bayanapatra in 2004 with the respondent of the present appeal /the complainant . The complainant purchased a flat for a consideration of Rs. 3,80,000/- . The complainant paid Rs. 3,44,500/- and only Rs.35,500/- is the remaining due. In course of payment of installments the predecessor-in-interest Shri Sudarshan Saha received some installments followed by the OPs. Initially complainant paid Rs. 2,60,000/- in January, 2004 , Rs.70,000/- on 124.01.2004 and Rs. 4,500/- on 25.04.2004. The complainant paid of further sum of Rs. 10,000/-. In the lifetime of the father of the OPs handed over the possession of the flat was handed over in incomplete condition to the complainant on 01.05.2004 and since then the complainant has been in actual physical possession of the incomplete flat in question. Since then to almost last part of 2007 complainant constantly requested the father of the OPs to complete the incomplete works of the flat coupled with a request for execution and registration of the same in favour of the complainant. The father of the OPs and the OPs always assured the complainants that they would not cause any sufferings to the complainant . In the mean while, in or about January, 2012 the father of the OPs died intestate leaving behind the OPs as his legal heirs and successors. In February, 2013 complainant requested the OPs again to complete the incomplete work of the flat and to register the deed of conveyance. But ultimately OP did not respond to the complainant’s grievance. Hence, the petition of complaint was filed by the complainant before the Ld. District Forum praying for direction upon OP to execute and register the deed of conveyance in favour of the complainant with a direction to complete the incomplete flat and/or alternatively to award an amount of Rs.1,00,000/- for the same alongwith compensation of Rs. 1,00,000/- for financial loss , Rs. 50,000/- for mental agony and harassment and Rs. 10,000/- for litigation cost.

In the judgment of erstwhile Ld. DCDRF, it is observed that Ops 3 & 4 have not turned up to contest the case, therefore, the decree was passed against them exparte.

The OPs No. 1 & 2 filed the written version. The OPs No. 1 & 2 in their written version denied all materials allegations inter alia stated that the case is not maintainable in the eye of law. The complainant took the possession of flat as per her sweet will . The father of the OPs did not want to deliver the possession of the flat to the complainant at that time. Therefore, the complainant is not entitled to claim for completion of flat after expiry of the so many years. The father of the OPs wanted to register the flat but the complainant had no requisite money to do the same.

The Ld. District Forum allowed the case on contest against OPs 1 & 2 with a cost of Rs. 10,000/- and decreed exparte against the OPs No. 3 & 4 without any cost. All the OPs are directed to execute and register the deed of conveyance with respect to the subject flat and also to pay Rs. 50,000/- to the complainant as compensation for having the flat of the complainant completed within a month of the order failing which the complainant is at liberty to execute the decree through the process of the Forum. At the same time, the complainant is directed either to deposit in the Forum or to pay Ops the balance consideration amount of Rs.35,500/- before the date of registration of her flat by the OPs.

Being aggrieved by and dissatisfied with the said order the OPs filed the instant appeal before this Commission.

On the date of final hearing none appears on behalf of the Respondent/Complainant.

In the course of argument Ld. Advocate for the OPs with all fairness submits that they are ready and willing to execute and register the deed of conveyance in favour of the complainant. Their only grievance is upon the direction of Ld. District Forum for awarding Rs. 50,000/- to the complainant payable by them. Ld. Advocate for the OPs submit that the complainant took the possession of the flat on 01.05.2004 at her will. Therefore, OPs are not liable to pay any amount towards completion of the flat after so many years.

We have gone through the materials on record, particularly the observation of the Ld. District Forum. Ld. District Forum has observed that it is admitted by the contesting OPs that the flat in question was handed over in incomplete position and it was done as per the sweet will of the complainant. Ld. Forum has observed that ‘it will be proper justice if we order the OPs to pay Rs. 50,000/- to the complainant to enable her to get the flat completed’. Now, the question is how the District Forum has assessed the amount for completion of the flat. The flat in question was handed over in the year 2004 and now this is 2022 i.e. more or less 17 years have been elapsed. The complainant has not prayed for any commission work to assess the incomplete work as per the deed of conveyance nor filed any receipts towards cost incurred by her for completion of the flat in habitable condition. After 17/18 years there must be some wear and tear in the flat in question. But the OPs have admitted that the flat was handed over to the complainant in incomplete position. In the Bengali agreement it is not properly written the date of sale agreement but it was written in internal page 4 of the said agreement that the flat was scheduled to be handed over within four months from the date of agreement otherwise the OPs are liable to refund the advance amount with compensation and interest. The OPs have admitted that the flat was handed over in incomplete position but the OPs have not alleged that the complainant took the possession of the flat before the schedule date of delivery. Therefore, the OPs had not completed the flat within the stipulated period of time and complainant must have no other alternative but to take the possession of flat in that circumstances. Therefore, the complainant is entitled to some amount of compensation for not delivering the possession of the complete flat in stipulated period of time. It is obligatory duty of the OPs to execute and register the deed of conveyance of the flat in question in favour of the complainant. But we are not inclined to pass any order as to cost as awarded by Ld. District Forum since the balance consideration of Rs. 35,500/- is still payable by the complainant jto the OPs.

Keeping in view of the above observations, we are of the view that the order passed by the erstwhile Ld. DCDRF was just and proper except the cost amounting to Rs. 10,000/- and amount of compensation of Rs.50,000/- to the complainant. So, we set aside the order of cost of Rs.10,000/- and modify the order of compensation by reducing the amount. We are in the view that OPs are liable to pay compensation of Rs. 30,000/- for delivering the flat in question in incomplete condition.

In

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view of the above, we allow the appeal in part and modify the order of the Ld. District Forum in following manner : The OPs are directed to execute and register the deed of conveyance in favour of the complainant within 45 days of this order failing which the complainant is at liberty to execute and register the flat in question through the machinery of the Forum. At the same time, the OPs are also directed to pay compensation of Rs. 30,000/- (Rupees thirty thousand) only to the complainant within 45 days for delivering the flat in incomplete position. The complainant is directed to pay the balance consideration amount of Rs.35,500/- (Rupees thirty-five thousand) to the OPs on the date of registration of her flat. The appeal is allowed in part and disposed of in aforesaid manner.
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