Date of filing : 18.05.2018
Date of Judgment : 07.08.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Sri Swapan Chatterjee alleging deficiency in service on the part of the Opposite Parties ( referred as OP hereinafter ) (1) “ABCON (INDIA) represented by its partners (a) Sri Abhi Mukherjee and (b) Sri Asoke Ghosh (2) Smt. Swantana Dutta (3) Sri Babua Dutta.
Facts in brief are that the OP nos. 2 & 3 are the joint owners of a plot of land measuring 4 cottah 8 chittack 8 sq.ft. lying and situated at Dag no.828, Khatian No.719, J.L. No.719, Municipal Premises No.39/2/1, Prince Golam Hussain Shah Road, P. S. – Jadavpur, Kolkata - 700 032 along with a one storied building standing thereon. The complainant has stated that a Memorandum of Understanding was executed by and between the OP No.1 Developer and OP Nos. 2 &3 landowners for constructing a multi-storied building after demolishing the existed one storied building and, accordingly, the OP No.1 obtained a sanctioned building plan from the Kolkata Municipal Corporation bearing sanction no.219 dt.24.09.2003 and constructed a partly three and partly ground + three storied building at the abovementioned premises. The complainant has further stated that during the period of construction he came into contact with the OPs and after inspection of all documents gave affirmative nod for purchasing a self-contained flat being flat no.-B1 measuring about 645 sq.ft. super built up area consisting of two bed rooms one living cum drawing room., one kitchen , one toilet, one W.C. on the South West Side of the first floor of the building construction of which was going on at that point of time and, accordingly, an Agreement for Sale dt. 4.7.2004 was executed by and between the complainant and the OP No.1 & 2 & OP No.3 on payment of Rs. 86,250/- by the complainant to the OP towards advance/booking amount out of total consideration amount of Rs. 5,75,000/- and it was agreed between the parties that balance consideration amount would be paid as per schedule of payment. It is stated by the complainant that the entire consideration has been paid by the complainant and possession of the said flat, as per Agreement for Sale, was to be handed over by 31.12.2014 and registration of the said flat was decided to be done by 10.02.2015. However, the OP no.1 vide letter dt. . 05.01.2015 intimated the complainant that the flat in question was ready in all respect for delivery of possession but on inspection the complainant found that the construction of the said flat had not been completed in all respect and the OP again on 29.01.2005 by a letter requested the complainant to take the possession of the flat in question. It is further stated by the complainant that he under some compulsion took delivery of the possession of the flat in question on 23.02.2005 without electricity connection as well as without colour painting on the exterior wall and incomplete mirror work and the complainant sent demand notice dt.30.11.2016 to the OPs and in reply to that demand notice the OP sent reply dt. 08.12.2006, 31.12.2006, 07.02.2007, 28.02.2007 to the complainant. It is mentioned by the complainant that pre-condition of receiving possession was that the developer would keep an amount of Rs. 50,000/- as security deposit with the complainant which the developer paid to the complainant but the OP failed to complete the balance work as well as installation of electricity and the complainant had to complete the said work by paying on his own. It is specific allegation made by the complainant that inspite of handing over possession the OPs did not execute and register the Dee of Conveyance in favour of the complainant which caused harassment and suffering to the complainant, a senior citizen and therefore the complainant by filing the instant consumer complaint prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the complainant, OP No.1 to pay Rs.. 3,00,000/- towards compensation , Rs. 2,00,000/- for payment of balance work, Rs. 2,00,000/- towards unfair trade practice Rs. 1,00,000/- towards cost of litigation and other reliefs.
The complainant annexed copy of Agreement for Sale dt. 04.07.2004 letter dt.03.01.2005, 30.11.2006, 31.12.2006issued by the complainant to the OP No.1, Reply dt. 29.01.2005,23.02.2005,08.12.2006,07.02.2006,28.02.2007 issued by the OP No.1 to the complainant, Completion Certificate.
Money receipts dt. 04.07.2004, 12.08.2004, 18.08.2004,25.10.2004, 23.02.2005, Transaction slip. Electricity bill for the month of December 2017.Receipts filed acknowledging payment of maintenance charge.
Notices were served but the OP nos. 2 & 3 did not turn up and, therefore the case proceeded exparte against OP Nos. 2 & 3 vide order dt. 18.07.2018.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the instant case is barred by limitation since the case has been filed after a long gap of 18 years. It is further stated by the OP No.1 that the plot of land upon which the building was constructed was amalgamation of two plots of land and OP nos. 2 & 3 were joint owners of one part and OP No.3 was absolute owner of another part and they decided to amalgamate the plots for having better F.A.R but subsequently after construction of the building an infighting was arose between the OP Nos. 2 & OP No.3 regarding their respective share and allotment. It is further stated by the OP No.1 that he received only Rs. 5,25,000/- out of Rs. 5,75,000/- as Rs. 50,000/- had been refunded by the OP No.1 towards security deposit at the time of handing over possession. The OP No.1 has further stated that electricity connection was initially provided from common meter and thereafter separate meter was installed in favour of the complainant and in order to avoid inconvenience to the complainant the OPs handed over possession of the flat in question to the complainant in habitable condition after completing all unfinished work but due to the inter se dispute between the OP Nos. 2 & 3 registration of the flat could not be done since the OP No.1 Developer was only possessed a Notarial Power and the landowners refused to execute the same in favour of the developer so that developer could act as their constituted Attorney . Moreover the OP No.2 filed a civil suit before the Civil Court, Alipore seeking injunction on the property in question and, accordingly prayed for dismissal of the case.
The complainant and the OP No.1 adduced their respective evidence followed by cross-exmination in the form of questionnaire and reply thereto but the OP No.1 did not file any reply.
In course of argument both parties file their respective brief notes of argument.
Ld. Advocate for the complainant has narrated the facts mentioned in the petition of complainant and prayed for compensation for prolong harassment on the part of the OP no.1.
Ld. Advocate for the OP No.1 has submitted that he , by filing a petition , has already admitted that he is agreeable to execute and register the Deed of Conveyance in favour of the complainant but regarding unfinished work no document has been filed by the complainant to substantiate such claim.
At this stage, Ld. Advocate for the OP No.1 drew our attention towards the Title Suit being No. T.S. 66 o 2006.
Points for determination :
- Whether there is deficiency in providing service on the part of the OPs.
- Whether the complainant is entitled to the relief as prayed for.
Decision with reasons
Point Nos. 1 & 2 : Both points are taken up together for comprehensive discussion and decision.
The complainant has claimed that he entered into an Agreement for Sale with the OPs in respect of a flat to be constructed by the OP No.1 on a piece of land being premises no. 39/2/1, Prince Golam Hussain Shah Road, P.S. – Jadavpur, Kolkata - 700 032 owned by the OP No. 2 & 3 and as per said Agreement for Sale dt. 04.07.2004 the complainant paid entire consideration amount of Rs. 5,75,000/-. In support of this averment the complainant has filed. . Copy of
Agreement for Sale dt. 04.07.2004 and money receipts dt. 04.07.2004 12.08.2004,18.08.2004, 25.10.2004, 23.02.2005 issued by the OP wherefrom it appears that an Agreement for Sale was executed by and between the complainant and the OPs on 04.07.2004 and the complainant paid entire consideration amount of RS. 5,75,000/- . The complainant has alleged that though the OPNo.1 handed over possession of the flat in question on 23.02.2005 but the said flat was not completed in all respect since there were some unfinished works which was to have been completed before delivery of possession and the OPs did not execute and register the Deed of Conveyance in favour of the complainant.
Although notices were served but the OP Nos. 2 & 3 did not turn up to state their version.
It is specific defence of the OP no.1 Developer that after completion of unfinished work of the flat in question possession was handed over to the complainant on 23.02.2005 and Completion Certificate was also obtained by the Op no.1 from the concerned local Authority but registration of the Deed of Conveyance could not be done due to the inter se dispute between the OP Nos. 2 & 3. It appears from copy of plaint of T.S. being No. T.S. 66 of 2006 that Smt. Santana Dutta ( OP No.2 herein) filed a case before the Ld. Civil Judge Jr. Division against ABCON (INDIA) and Sri Babul Dutta, ( OP No.1 & OP No.3 herein respectively ). However, the OP No.1 has not filed any other documents wherefrom it would have come to our knowledge that which order has been passed by Ld. Civil Judge in T.S./66/2006. It further n appears that the complainant entered into an Agreement for Sale with the OPs on 04.07.2004 and the Title Suit was filed in 2006 and, moreover, the complainant in the instant consumer complaint was not impleded as party to the TS/66/2006.
On perusal of Agreement for Sale dt. 04.07.2004 it appears that the developer agreed to handover possession of the flat before 3.12.2004. It further appears from letter dated 03.01.2005 issued from the end of the complainant asking to handover possession of the said flat in question and it also appears from reply dt. 29.01.2005 issued by the OP No.1 that the complainant was yet to pay the outstanding dues. It further appears from reply dt. 29.01.2015 that the OP No.1 was ready to handover possession and accordingly the complainant received possession and paid Rs. .1,50,000/- vide HDFC Bank’s pay order no. 775488 dt. 09.02.2005 which the OP receive as full and final settlement and, therefore, question of outstanding dues does not arise at all.
It is specifically alleged by the complainant that registration of the Deed of Conveyance has not been done in favour of him by the OPs. It also appears from letter dt. 08.12.2006 issued by the OP No. 1 to the complainant, upon which the complainant placed reliance , that the complainant was intimated by the OP No.1 regarding filing of an injunction petition by the OP No.2 Though no copy of order in TS/66/2006 has been filed, it is evident that a Suit was pending at that point of time. But that cannot debar the complainant to get his flat registered in his favour.
The complainant has prayed for compensation to the tune of Rs. 3,00,000/- for unnecessary loss, delay. On perusal of documents on record it appears that the Agreement for Sale was executed on 04.07.2004, possession of the flat was handed over on 23.02.2005 and last installment was paid by the complainant on 09.02.2005.Consideiring such state of affairs, we find no reason to award compensation.
Regarding prayer for payment of Rs. 2,00,000/- towards cost of completion of the balance work we do not find any document wherefrom it would have been evident that the complainant completed the unfinished work by paying on his own. Therefore, this prayer cannot be allowed.
Regarding prayer for direction upon OP No.1 to pay Rs. 2,00,000/- for unfair trade practice. As per Section 2(1)(r) of the Consumer Protection Act, 1986. We do not find any element of unfair trade practice on the part of the OP and, therefore, this prayer is also rejected. Furthermore, in para no.19 of the petition of complaint the complainant admitted that at the time of handing over possession of the flat in question the OP No.1 Developer paid an amount of Rs. 50,000/- to the complainant as security deposit. Considering this act of the OP Developer we are not inclined to allow any compensation or litigation cost.
In such view of the matter, we are inclined to allow only the prayer for registration of the Deed of Conveyance .
In that result, the consumer complaint succeeds in part.
Hence,
Ordered
That CC/299/2018 is allowed on contest against OP No.1 and exparte against OP Nos. 2 & 3. OPs are directed to execute and register the Deed of conveyance in favour of the complainant within two months from the date of communication of this order, to the OPs subject to refund of security deposit of Rs. 50,000/- to the OP No.1 by the complainant and if the OPs fail to do it, the registration shall be done through machinery of this Forum.
