DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO: 240 of 2015
DATE OF FILING : 22.5.2015 DATE OF PASSING JUDGEMENT: 17/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarkar
COMPLAINANT : 1. Sri Mani Charan Mahalik,s/o late Bhuli Mahalik
2. Miss Mamata Mahalik, d/o Sri Mani Charan Mahalik
Both of 12, Santigarh Colony, P.S Jadavpur, Kol-40.
-VERSUS -
O.P/O.Ps : 1. MAA Tara Construction, represented by its Proprietor Sri Shyamal Indu,s/o late Anil Indu , place of business at 8/A, Santigarh Colony, P.S. Jadavpur, Kolkata – 40.
2. Sri Nitu Indu
3. Sri Shyamal Indu
4. Sri Nabendu Indu
5. Sri Subendu Indu,
All sons of late Anil Indu of 8/A, Santigarh Colony, P.S. Jadavpur, Kolkata – 40 and presently residing on the First Floor of 5, Santigarh Colony, P.S Jadavpur, Kolkata – 40.
6. Smt. Jaya Sarkar, w/o Sri Basudeb Sarkar, d/o alte Anil Indu of Dinesh Pally, Purba Putiary, P.S. Regent Park, Kolkata – 93.
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J U D G E M E N T
Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act, 1986 filed by the complainant stating that O.P nos. 2 to 6 are the joint owners and O.P-1 is the developer and development agreement was executed between them on 30.11.2013 and land owners also executed a General Power of Attorney on 2.12.2013 in favour of Shyamal Indu as per terms of the Development Agreement. It has claimed that complainants are neighbours of the aforesaid land owners and expressed their desire for owning a self contained flat and approached the developer of that purpose and accordingly O.P was agreed to sell one self contained flat more or less 450 sq.ft after completing the construction of the same in an habitable condition. Thereafter, one agreement was made between the complainant and O.P-1 on 22.1.2014 ,wherein complainant was allotted one flat in the ground floor right side measuring 450 sq.ft super built up area consisting of two bed rooms one dining cum kitchen, one toilet of the said four storied building at premises no.10D, Graham Road, having postal address 8/A, Santigarh Colony, P.S. Jadavpur, Kolkata – 40 at a total consideration of Rs.12,00,000/-. Complainant on the date of execution of the said agreement for sale paid to the developer a sum of Rs.3 lacs vide different cheque and thereafter complainant also paid Rs.3 lacs . It has claimed that inspite of repeated requests to the O.Ps to complete the construction of the building including the flat agreed to be purchased by the complainant, the O.P-1 did not pay any heed to it. It has claimed that complainant being a neighbor of the O.P-1 requested verbally to collect the next installment from him and requested to complete the construction, but O.P-1 refused to accept any further payment on the plea that no further construction will be done by him. Therefore, complainant asked to refund Rs.6 lacs which was collected by the O.P-1. But O.P-1 did not pay any heed to the request of the complainant and thereby stamp duty and registration charges automatically are in hike in the long passage of time. Lastly the developer,O.P-1 violated the terms and conditions of the agreement for sale dated 22.1.2014 and O.P-1 neither handed over possession nor refunded the amount. Hence, this case with a prayer directing the O.Ps to complete the construction of the flat in complete habitable condition and deliver physical possession of the same and also direct to execute and register the deed of conveyance ,alternatively to refund Rs.6 lacs along with interest, compensation of Rs. 5 lacs, litigation cost Rs.25000/-.
The O.Ps filed written version and as usual claimed for non-maintainability of the case and denied all the allegations against them. The O.P has admitted that out of Rs.12 lacs complainant paid Rs.6 lacs only on 10.5.2014 and thereafter did not pay any further installment. It has claimed that mode of payment contained in the third schedule at page 14 of the agreement for sale dated 22.1.2014 was scheduled to be paid on 10.9.2014 and 22.10.2014 . It has claimed that complainant did not pay third and fourth installment inspite of requests made from the side of the O.Ps. As such remaining work of construction of the schedule flat and make it habitable could not be done by the O.P-1, for which complainant is not entitled to get any relief from the Ld. Forum. It has claimed that since complainant did not pay last two installments for which he was not given information of completion notice of the said flat from side of the O.P-1 . it has stated by the O.P-1 that he has to bear the extra money to complete the schedule flat in 2015-16 and in that event O.P-1 will suffer huge financial loss. So, O.P-1 is entitled to get interest on the balance consideration price with compensation. It has further stated that when complainant is a defaulter ,he cannot raise any point regarding increase of registration cost. It has strongly stated that when complainant defaulted in making payment of installment, he has no right to approach before any Court of Law or Forum in unclean hand and he is not entitled to pay any equitable right in it as well as the services from the other side. So, the O.Ps have no deficiency of service. Hence, the O.Ps pray for dismissal of the case treating frivolous and vexatious complaint.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
At the outset, it must be stated that Ld. Advocate of the developer and complainant were present when it was directed vide order no.20 dated 2.2.2017 that complainant has to pay Rs.3 lacs which will be deposited in the office of the Forum and complainant agreed to pay the same within 15 days . Thereafter one month will be given to the developer to complete the remaining works of flat to make it in habitable condition like common areas, water supply, electricity, drainage etc. At that time Ld. Advocate Suvendu Das, who is known as paneled Advocate of CESC, was present on behalf of the developer ,for which we also take assistance from Mr. Das to assist the complainant to get electric supply and it was also decided that remaining amount of Rs.3 lacs will be given after inspection and taking possession of the flat by the complainant as well as registration of the deed of conveyance. Developer was agreed to the proposal and complainant also deposited Rs.3 lacs further on 17.2.2017 i.e. within the time of our direction and Shyamal Indu, the developer, received the said cheque being no.247802 dated 17.2.2017 .But thereafter developer did not proceed accordingly and four dates already elapsed ,that is why record is taken up for passing judgment, since it was happened at the time of argument.
It should be mentioned here that we are looking for the interest of the complainant in view of the spirit of the Act, that is why, when developer already received Rs.6 lacs, he cannot raise the point that he is not deficient in services. Once, he accepted further amount of Rs.3 lacs the force of the agreement already looses its weight and apart from that developer agreed before this Bench that he will complete the remaining portion, that is why, complainant as per our assurance deposited Rs.3 lacs so that by that money developer could have easily complete the same . But inevitable did not happen . The report of the Commissioner is highly attractive at this moment wherefrom we find that there is no overhead tank ,underground reservoir, pump room, Septic Tank, Sewerage and drainage line, boundary wall water line and electrical room. If that be so, can a human being stayed without such essential utilities like the overhead tank, septic tank and sewerage and drainage line etc. So, the act of the developer clearly hit article 21 of the Constitution of India . We are aware that no one can prevent any person from having electricity and water supply, particularly when water is the life of not only the human being but also the animal, trees etc and that water was not arranged in the proposed building. So, what more deficiency is required to come to a finding that developer has not acted deficiency of service? Moreover, the agreed flat is not in existence in the ground floor as per report of the Ld. Commissioner ,but already Rs.6 lacs out of Rs.12 lacs is collected by the developer and as per proposal another Rs.3 lacs was again received by the O.P and encashed the same. So, Rs.3 lac is remaining due but the work has not yet been completed. We are aware that Hon’ble National Commission already held that unscrupulous builders whoa re taking substantial cost of the building and did not perform their part of obligation, should not be spared. Again in another reported case Hon’ble National Commission held that Builder has to pay interest on advance amount if project does not move ahead and onus is upon the builder that complainant has failed to make payment despite of construction having been completed by them. But here in the instant case construction has not yet been completed. So, question of further payment as highlighted by the developer in terms of the agreement does not arise at all. How a common people herein the complainant/consumer will keep reliance to make further payment when the construction was not in progress but as and when we interfere on the date of argument ,within 15 days complainant paid Rs.3 lacs to the O.P/developer. But still then the O.P did not care to complete the same. It is the noble observation of the Hon’ble National Commission in recent case reported in 2016 (3) Hon’ble State Commission , Chandigarh that complainant cannot pay remaining amount towards the price of the flat in absence of required progress over the site. This judgment is very much identical because here in the instant case complainant has been able to prove by local inspection that flat in dispute has not yet been started, that is why, we hold that the developer O.P-3 , who is a Proprietor of Maa Tara Construction ,has acted deficiency of service and unfair trade practice and also submitted before this Bench at the time of hearing in order to misdirect this Bench and collected further Rs.3 lacs , but no sufficient work was done.
Hence,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest with cost.
The O.P-3 is hereby directed to complete the flat in dispute in all respect and in habitable condition and to hand over the same to the complainant within one month from the date of this order, failing which, O.P-1 is directed to refund the entire consideration money of Rs.9 lacs with interest @9% p.a on the amount paid from time to time within 30 days from the date of this order. No installment will be acknowledged for payment of the aforesaid amounts by the executing Forum.
O.P-1 is also directed to pay compensation to the tune of Rs.3 lacs considering the gravity of the deficiency in service because firstly he did not construct the flat in dispute accepting Rs.3 lacs even as per our order at the time of argument agreed to complete the work, if complainant paid at least Rs.3 lacs and complainant also paid the same and O.P-1 also encashed the same ,that is why compensation amount will be Rs.3 lacs, along litigation cost Rs.20,000/- to be paid to the complainant within 30 days from the date of this order.
All the decreetal dues have to be paid within 30 days from the date of this order ,failing interest @9% p.a will carry on the total decreetal dues till its realization.
All the O.Ps are hereby directed to execute and register the deed of conveyance if the flat in dispute is handed over to the complainant in habitable condition at the satisfaction of the complainant and that should be completed within that span of one month and prior to that possession shall have to be delivered to the complainant and in that event complainant is directed to deposit Rs.3 lacs to the office of this Forum and the said amount will be released in favour of the developer soon after the possession and registration of the flat in dispute would be completed , failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest with cost.
The O.P-3 is hereby directed to complete the flat in dispute in all respect and in habitable condition and to hand over the same to the complainant within one month from the date of this order, failing which, O.P-1 is directed to refund the entire consideration money of Rs.9 lacs with interest @9% p.a on the amount paid from time to time within 30 days from the date of this order. No installment will be acknowledged for payment of the aforesaid amounts by the executing Forum.
O.P-1 is also directed to pay compensation to the tune of Rs.3 lacs considering the gravity of the deficiency in service because firstly he did not construct the flat in dispute accepting Rs.3 lacs even as per our order at the time of argument agreed to complete the work, if complainant paid at least Rs.3 lacs and complainant also paid the same and O.P-1 also encashed the same ,that is why compensation amount will be Rs.3 lacs, along litigation cost Rs.20,000/- to be paid to the complainant within 30 days from the date of this order.
All the decreetal dues have to be paid within 30 days from the date of this order ,failing interest @9% p.a will carry on the total decreetal dues till its realization.
All the O.Ps are hereby directed to execute and register the deed of conveyance if the flat in dispute is handed over to the complainant in habitable condition at the satisfaction of the complainant and that should be completed within that span of one month and prior to that possession shall have to be delivered to the complainant and in that event complainant is directed to deposit Rs.3 lacs to the office of this Forum and the said amount will be released in favour of the developer soon after the possession and registration of the flat in dispute would be completed , failing which complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
