This is a Consumer Complaint under Section 17 of C.P. Act, 1986. The Complainant Case in nutshell is that she has intended to purchase a flat measuring 1,045 sq.ft at Galaxy Enclave and total consideration money was fixed at Rs. 23,45,250/- from Sarothi Realtors Pvt. Ltd. and the agreement of sale was executed by one of its director Ajay Agarwal on 22.07.2015 and the certificate of undertaking also executed on that day to the affect that the date of handing over the flat was fixed on 31.03.2016 and the common area on 30.06.2016. It was stipulated in the agreement that in the event of delay in making payment the purchaser would be liable to pay 20% interest Per-annum on unpaid amount and the Construction Company would be liable to pay 20% interest Per-annum on the paid amount. If, there was delay in handing over the possession. The Complainant in due time has paid the cost of the flat and tax total Rs. 24,24,280/- and the possession of the flat was delivered on 19th October, 2016 as per possession certificate (Appendix D). The Complainant has also additionally paid for charges of Transformer, Lift, DG set etc including registration cost and only Rs. 42,250/- was remained to be due and the Complainant assured that on the date of registration the said rest amount 42,250/- would be passed on her behalf. The Complainant’s allegations are that the common area facilities including the facilities of Transformer, Lift, DG sets etc was not provided to her use and asked the O.P to provide the assured facilities and to make registration of the sale deed in favour of her but the O.P. did not do the same. So, he approached before CA and FBP, Jalpaiguri and a petition was submitted before Ld. D.C.D.R.F., Jalpaiguri on 19.06.2018 but the Ld. D.C.D.R.F., Jalpaiguri for want of pecuniary jurisdiction dismissed the said Complaint and for that reason the Complainant has registered the Consumer Complaint here with the prayer to get refund legal dues to Rs. 4 Lakh 19 thousand and other consequential reliefs like compensation and litigation cost etc. Total claim was confined to Rs. 5,69,204/-. The Complainant’s case was admitted in due course and notice was sent to the O.P. who has contested the case by filing W.V and contended that the instant Consumer Complaint was barred by law of limitation and liable to be dismissed for want of right cause of action and the instant Consumer Complaint was filed with a malafied intention to derives some unlawful gain. The further case of the Complainant is that the instant Consumer Complaint is liable to be dismissed on the ground that the Sarothi Realtors Pvt. Ltd. is a Private Limited company having its separate juridical identity and without impleading company as parties to this case the instant case fails for non-joinder of necessary party. The positive case of the Opposite Party is that one B. Mittal was the supervisor of the Opposite Party who entered into an agreement with the Complainant to arrange some interior decorations and furniture and fittings to be installed in the flat of the Complainant and Mr. Mittal had arranged the same and asked the Complainant to pay him the charges he has rendered for such Furnitures and fittings which are deliberately refused on the part of the Complainant side. The further case is that the flat could not be delivered on 31st March, 2016 as stipulated in the agreement due to some reasons which was beyond the control of the O.P. as because due to some troubles of environmentalists the work for lifting sands from the river beds was stopped and for that reason the Opposite Party could not collect the materials in due time and for that reason the delay of possession was there of 198 days and such delays had no direct impact upon the Complainant and there was no fault also on the part of the O.P. in this respect. The further case is that the other facilities like electricity, DG sets etc was also provided in due time and there were some delays as because installment of Transformer was required on the part of the W.B.S.E.D.C.L and thereafter installation of such Transformer the facilities of Lift, DG sets etc were made in a working condition. The further case is that the O.P. has always shown the eager to execute the deed of sale in favour of the Complainant and the deed of sale was in a ready condition but the Complainant side was unable to make payment of the dues amount and for that reason the registration could not be completed. In this case the case of the Complainant was conducted by her husband Mr. S.K. Bidyananda as her representative. The case of the O.P has conducted through Ld. Advocate Mr. M. Paul. Mr. S. K. Bidyananda tendered the evidence by affidavit. The Opposite Party put some questionnaires upon the evidence of P.W.1. S. Bidyananda who replied the said questionnaires in details. The Opposite Party Mr. A. Agarwal has Swearth an affidavit-in-chief and he had to face the cross-examination by the shape of questionnaires and furnishing the answers. Argument of both sides was heard.
Decision with reasons
The Opposite Party has attacked the case of the Complainant to the score that the instant Consumer Complaint is barred by limitation and has become defective for non-joinder of necessary party. It appears that the possession of the flat has already delivered but the registration of sell is still pending and till the date of registration of the sale deed of the flat the cause of action remains to be continued. Admittedly Sarothi Realtors Pvt. Ltd. is a private limited company having its separate identity as a juridical person and for that reason for any litigation in civil nature it is imperative to implead that juridical person as a party. But here in this case Sarothi Realtors Pvt. Ltd. has not been impleaded. The Complainant is a Consumer who seeks redressal for deficiency of service from the promoter and builder and she has impleaded the said builder who has executed the agreement of the sale deed and now non-implead of the Construction Company no prejudice will be there to the defense case of the O.P. and in a Consumer Case technicality always encouraged to be avoided. After hearing the arguments of both sides, it has come to our notice that the dispute between the parties to this case is very limited one. Tt first one B. Mittal who was engaged by the Complainant on the advice of the O.P. A. Agarwal to do some extra works like Furniture fittings and installation of some machineries for which initially Rs. 1 Lakh was paid by the Complainant to Mittal but subsequently some disputes was cropped up between Mittal and the Complainant regarding the price and extra work which was disputed by two parties that is Mittal and the Complainant and the O.P. A. Agarwal has nothing to do in this regard. The Annexure D clearly shows that the certificate of possession was executed on 19.10.2016 while it was stipulated in agreement that the delivery of possession to be held on 30.03.2016. So, there was 198 days delay in delivery of possession. The O.P. argues that such delay was due to act of God as because due to some environmentalists protests the process of lifting sands from the river beds in the locality was stopped and for that reason the Transportation facility and supply of building materials was severally affected and for that reason for want of building materials the O.P. Company could not complete the construction work and also unable to handover the possession of the flat on 31.03.2016 and the cause of such delay was beyond the control of the O.P. It is also established beyond any doubt after hearing both sides that the facilities such as installation of Transformer in the building compound, provision of DG sets, facility of Lifts could not be provided in due time and the reasons has explained in the Written Versions and Written Note of Argument by the O.P. appeared to be convincing one as because the process of installation of Transformer totally lies upon the Electricity Authority W.B.S.E.D.C.L. and the Opposite Party as promoter had nothing to do in this regard till the works of installation are completed by the Electrical Authority. It is also established during the course of hearing that a complaint was lodged before the concerned Police Station where process of settlement was continued and thereafter the O.P. has prepared the sale deed in a proper manner and the Complainant has also paid the major portion of registration fees and other incidental charges and only a meagre amount that is 42,250/- still remains due for payment on the part of the Complainant. Whereas, the Complainant is also entitled to get the interest at the rate of 20% Per-annum for day-to-day delay of handover possession within the stipulated period on 31st March, 2016. So, it is apparently clear that the Complainant is well entitled to get an interest at the rate of 20% Per-annum over Rs. 24,24,228/- for the period between 31.03.2016 and 19.10.2016. The dispute regarding payment of extra works as charged by Mr. B. Mittal is not under the domain of this Commission as because B. Mittal is not the party to this case. It is also settled beyond doubt that to get registration of the sale deed the Complainant had the liability to pay the balance amount Rs. 42,250/-. The other allegations of the Complainant have got no relevancy in the instant Consumer Case. Thus, the instant Consumer dispute is hereby disposed of in the following manner.
Hence, it’s ordered
That the instant Consumer Complaint is hereby allowed on contest without any cost. The O.P. A. Agarwal as Director of Sarothi Realtors Pvt. Ltd is hereby asked to make arrangement for registration of sale deed of 1045 sq.ft flat including common area within one month from the date of collecting the balance money of Rs.42,250/- from the Complainant. The O.P. is further directed to pay interest at the rate of 20% Per-annum upon Rs. 24,24,228/- for the period between 31.03.2016 and 19.10.2016 along with 6% interest Per-annum over the accumulated interest since 20.10.2016 till date within two months from this day, failing which another 6% Per-annum as interest to be imposed upon the total awarded money.
A copy of the Judgement be supplied to the parties free of cost.
