Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)      Smt. Karishma Mandal,

                              Member

                    (3)      Anil Kumar Singh

                              Member

Date of Order : 22.11.2018

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to provide the lift facility and fire extinguishers facility and to give water proof treatment to the roof and also remove the raw materials i.e. the sands stone chips and bricks kept on the floor of the Apartment to the complainant.
2. To direct the opposite parties to pay Rs. 5,00,000/- which has been spent by the complainant in completing the interior work, wooden work, Aluminium work, internal electrification work to fix the tiles in the flat, kitchen modification bathroom tiles, and fitting pooja room to the complainant along with 18% interest per annum from 25.12.2009.
3. To direct the opposite parties to pay Rs. 2,00,000/- as compensation.
4. To direct the opposite parties to pay Rs. 15,000/- as litigation cost.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that as per persuasion of authorized agent of opposite party no. 1 the complainant paid total Rs. 10,00,000/- by way of earnest money to opposite party no. 1 and thereafter Deed of Agreement for Sale was executed between the complainant and opposite parties as will appear from annexure – 1. The complainant discharged all the obligation as per agreement contained in annexure – 1 and paid the entire consideration amount of Rs. 12,02,100/- on different dates as will appear from receipts contained in annexure – 2 series. The complainant was therefore handed over possession of the unfinished and incomplete flats as will appear from annexure – 3. After taking the possession the complainant found that opposite party no. 1 has not fixed the tiles in the flats and also had not completed interior work, wooden work, Aluminium work as well as even the kitchen and pooja room and internal electrification was incomplete. The complainant approached opposite party no. 2 and requested for completing waterproof treatment to the roof of the said flats, lift, fire extinguisher and also to complete interior work but the opposite party no. 2 ignored the request of the complainant and thereafter the complainant himself completed the unfinished work mentioned above after spending Rs. 5,00,000/-. The complainant showed the bill of purchased items by the complainant to opposite party no. 2 and requested to return his spent money of Rs. 5,00,000/- but after repeated request opposite party no. 2 was not ready for the same and lastly the aforementioned flat was got registered unilaterally by the District Sub – Registrar, Patna with the permission of executive officer, New Capital Circle PMC through letter no. 1452 dated 18.11.2011 under the Bihar Apartment ownership Act 2006 the copy of which have been marked as annexure – 4. Thus, the complainant is the owner of flat no. 402 and 404 on the 4^th floor of Aasth Ashoka Apartment, Rupas Pur, Patna. The complainant has also submitted all the aforementioned documents by way of evidence on affidavit which is on record.

On behalf of opposite parties an objection cum reply (written statement) has been filed denying the allegation of the complainant. It has been stated that opposite party no. 1 was in possession over the land and he started development over the said land with purpose to solve the residential problem of the citizen for which the complainant approached him and simply agreed to purchase the flat in question accordingly a deed of agreement was executed.

It has been further stated that as per request of the complainant that bank will disburse only Rs. 7,50,000/- as housing loan so considering the financial position of the complainant, opposite parties executed annexure – 1 although the complainant was to pay Rs. 12,02,100/-.

It has been further stated that complainant has not paid the entire amount till today and there is dues of Rs. 3,50,000/- for which opposite parties have given legal notice to the complainant and two receipts dated 13.11.2007 of Rs. 50,000/- are forged and fabricated.

It has been further stated that opposite parties invested Rs. 2,50,000/- for extra work which is to be paid by complainant along with Rs. 10,00,000/- which was outstanding dues prior to the execution of absolute sale deed.

It has been further stated that being aggrieved by unilateral sale the opposite party no. 2 has filed a title suit before Sub – Judge, Danapur with prayer to declare the deed of unilateral sale dated 12.12.2011 as null and void.

It has been further stated that opposite parties never agreed to provide facilities mentioned in Para – 8, 9, 10 and 11 of the complaint petition to the complainant rather opposite parties provided extra furnishing work as per request of the complainant. The rest of the allegation has been denied by the opposite parties.

A Rejoinder has been filed on behalf of complainant stating therein that complainant had paid extra amount to the opposite parties in good faith and same has been accepted by opposite parties without any protest and objection and hence as per principle of estoppel the opposite parties cannot say that the complainant has not paid the entire price of the said flat.

A supplementary affidavit has also been filed on behalf of complainant stating therein that opposite party no. 2 has filed a Title Suit bearing Title Suit no. 155 of 2014 before the Court of Sub –Judge I, Patna and the same is still pending and till date no any order of stay or of Status quo has been passed by the Civil Court.

From bare perusal of Deed of agreement for Sale (annexure 0 1) it appears that the complainant has paid Rs. 8,50,000/-. From bare perusal of unilateral deed of Absolute Sale contained in annexure – 4 it transpires that complainant had paid consideration amount of Rs. 12,02,100/- thus, it is crystal clear that the complainant had paid more amount to the opposite party as agreed by them because from bare perusal of agreement for sale (annexure – 1) it is crystal clear that the total cost of flat in question was Rs. 10,00,000/- out of which the complainant had paid Rs. 8,50,000/- at the time of execution of annexure – 1. Apart from it from bare perusal of annexure – 3 which is irrevocable possession letter dated 16.06.2009 it appears that annexure – 3 has been issued by opposite party no. 2 in favour of the complainant whereby and where under the complainant has been put in possession. This annexure – 3 is a admitted document and has not been challenged by opposite party no. 2. Thus, it is crystal clear that the complainant has paid more than agreed amount and after receiving the aforesaid amount the opposite parties has issued annexure – 3 and now the opposite parties cannot back out the facts and promises mentioned in annexure – 1 and annexure – 3.

At the time of hearing of this case it has been asserted by the complainant that no any stay order or status quo has been passed by the Civil Court and the Suit has been filed after more than one year after filing this complaint petition.

In view of the aforesaid fact and circumstances we feel that the opposite parties are bound to extend benefit and facilities to the complainant which has been promised in annexure – 1 and annexure – etc.

In our opinion as the opposite parties after receiving the agreed amount has not extended facilities to enable the complainant to reside in the flat i.e. Apartment has committed deficiency.

For the discussion made above we direct the opposite parties to provide all facilities such as water proof treatment of roof, lift and fire extinguisher etc. as per annexure – 1, 2 and 3 within the period of three month from the date of receipt of this order or certified copy of this order.

The complainant will be at liberty to approach appropriate Court/Forum/tribunal for realization of excess amount paid to the opposite parties.

Opposite parties are further directed to pay Rs. 1,00,000/- (Rs. One Lac only) to the complainant by way of compensation and litigation cost within the period of three month.

Accordingly, this complaint stands allowed to the extent referred above.

                                       Member                                 Member(F)                      President