Dt. of filing- 06/02/2018
Dt. of Judgement- 12/12/2018
Mrs. Sashi Kala Basu, President
This complaint petition is filed by the complainant namely Monohar Burman under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely (1) Bidisha Construction (2) Shri Tanmoy Koley (3) Dipen Koley alleging rendering of deficiency in service on their part.
The case of the complainant in short is that OP No.1 is the developer. OP No.2 and 3 are the land owners. Complainant was a tenant in respect of one shop room situated in the ground floor of the old building at Premises No. 132, Karunamoyee Ghat Road. The complainant ran business for his livelihood in the said shop room. Being approached by the developer, the complainant vacated the tenanted old shop room with the condition that he shall be provided with a new shop room in the new building to be constructed after demolition of the old one at a considerable price of Rs. 80,000/-. The developer also agreed to compensate the purchaser /complainant towards the loss of his business till handing over of the possession of the new shop room. OP No.1 agreed to develop and to deliver the possession of newly constructed shop room to the complainant by 31.12.2017. But neither shop room has been handed over to the complainant nor he has been paid any amount agreed to be paid towards the loss of his business. The complainant paid Rs.10,000/- on the date of agreement and he has also been ready and willing to pay Rs. 70,000/- towards balance consideration amount on the date of execution and registration of the deed of conveyance. So the present complaint has been filed by the complainant for directing the OPs to deliver the possession of the shop room in complete constructed condition, to execute and register the deed of conveyance in respect of the said schedule shop room on receiving balance consideration money from the complaint, to pay a sum of Rs. 50,000/- to the complainant as agreed towards the business loss in terms of the agreement till 31.01.2018 and an order directing the OP No.1 to pay Rs. 7,00,000/- as compensation and further Rs. 50,000/- as the litigation cost.
The OP No.1 and also OP Nos.2 and 3 have filed separate written version. The OP No.1 has contended that he agreed to handover the schedule shop room but the complainant always deferred to take the shop room on the reason that he was unable to arrange the balance consideration amount of Rs. 70,000/-. His room still remains vacant and under lock and key. The complainant cannot take advantage of his own wrong. The OP/developer is always ready and willing to perform his part of contract. Thus the OP No.1 has prayed for dismissal of the complaint.
OP Nos. 2 and 3 have also stated that the OP No. 1 agreed to handover the shop room to the complainant but he always deferred to take his shop room as allotted to him for the reason known to him. The said allotted shop room is still lying vacant under lock and key.
The complainant has annexed with the complaint petition, development agreement between the developer and the owner dated 30.11.2016, the Power of Attorney dated 30.11.2016, agreement for sale dated 25.08.2017, agreement dated 28.08.2017 and the copy of the notice dated 11.01.2018 sent by the complainant to the OP.
During the course of the evidence, the complainant and the OP No.1 have adduced the respective evidence by way of filing affidavit-in-chief followed by cross-examination in the form of questionnaire and reply thereto. Thereafter, the argument has been being heard. Complainant has also filed the BNA. So, the following points require determination :-
- Whether the OPs have rendered any deficiency in providing services ?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reason
Point Nos. 1 & 2 :
Both these points are taken up together for discussion as they are co-related and also in order to avoid repetition .
It has been argued by the Ld. Advocate appearing on behalf of the OP No. 1 that possession of the shop room in question has already been handed over and to this effect a document has also been filed. It is also argued that the OP has always been ready to execute the deed of conveyance in respect of the shop room in question. On the other hand, Ld. Advocate for the complainant has argued that the Opposite Parties have failed to handover the possession and that the claim of the OP that possession has already been handed over is an afterthought. The document which has been filed by the OP cannot be relied upon as the same finds no reflection in the written version.
So, in the back drop of argument advanced by both the parties, the main point which requires to be considered at this stage whether the possession of the shop room in question at all has been handed over. The written version filed by the OPs is very categorical admitting the execution of the agreement of sale regarding selling one shop room in favour of the complainant at a consideration price of Rs. 80,000/-. It is also not in dispute that the complainant was a tenant in the said building before its demolition. It was also agreed that the complainant will be handed over the shop room within four months from the date of delivery of complete vacant possession of the old shop room. The agreement also reflects the OP had also agreed to pay a sum of Rs. 4,000/- p.m. to the complainant towards the loss of the business for the said four months and he fails to handover complete constructed shop room within the stipulated period than in such event the OP No.1 would also be liable to pay a sum of Rs. 10,000/- p.m.
It appears from the documents that old existing shop room was handed over to the OP No.1 on 28.08.2017. So as per the agreement, the developer had to deliver the possession of the new shop room within the stipulated period of four months.
It is an admitted fact that Rs. 10,000/- has been paid by the complainant to the OP towards the consideration price and he has to pay balance consideration on the basis of Rs. 70,000/- which according to the complainant , will have to be paid at the time of execution and registration of the deed of conveyance.
On a careful perusal of the written statement filed by the OP No.1 as well as by the OP Nos. 2 and 3 it appears that they have categorically stated “the complainant deferred to take the possession of the shop room on different pretext and on the reason that he was unable to arrange the balance consideration amount of Rs. 70,000/- . His room is still remain vacant and under lock and key. It is very much pertinent to state that your petitioner already handed over all 12 shopkeepers as per the terms of the agreement”. So from the abovementioned statement in the written version, it is very clear that the possession of the shop room was not handed over to the present complainant. However, it has been delivered to the other 12 shop room owners. So, contention of the OP at the stage of evidence that the possession of the shop room in question has already been handed over to the complainant, cannot be accepted in the absence of any specific documents in this regard. The document which has been relied upon by the OP No.1 allegedly bearing signature of the 17 people cannot be accepted as evidence as the original is not forthcoming before this Forum. Moreover, about the said document, there is no reflection in the written version. Apart from this, it appears that two of the signatories in the said document are dead. To this effect complainant has filed copy of the Death Certificate of Shymal Kumar Dhar and Badal Das whose name appears in the said document in Serial No. 4 and in Serial No.14. So on the date of signing on the said document, those two signatories were already dead. So for the said reason the genuineness of the document becomes questionable. No letter is filed by the OPs to show that the complainant was called upon for taking possession of the shop room.
According to the complainant as the OP No.1/developer did not complete the internal construction of the shop room within the time , the complainant could not accept the possession of incomplete shop room from the developer. So, as it is apparent that the OPs have violated the terms and condition of the agreement by not handing over the shop room, there has been deficiency in providing services on their part and thus the complainant is entitled to the relief of possession of the shop room and also execution and registration of the deed, on payment of balance consideration price by the complainant. There is clear recital in the agreement that the balance consideration price of Rs. 70,000/- will be paid at the time of registration of the deed of conveyance in respect of the shop room.
Complainant is also entitled to an amount of Rs. 64,000/- towards loss of business and Rs.10,000/- litigation cost. As it is apparent from the brief notes of the argument filed by the complainant that the shop room was completed but complainant did not accept the possession because he internal construction in the shop room was incomplete, we do not incline to pass any order as to compensation. Moreover, loss towards business is already allowed.
These points are thus answered accordingly.
Hence,
ORDERED
CC/55/2018 is allowed on contest against the Opposite Parties. Opposite Parties are directed to deliver possession of the shop room mentioned in the schedule of the complain petition and execute and register the deed of conveyance in the name of the complainant within three months from the date of this order on receiving the balance consideration price of Rs.70,000/- from the complainant.
Opposite Party No.1 is further directed to pay Rs.64,000/- to the complainant towards loss of business and Rs. 10,000/- as litigation cost within the aforesaid period of three months in default the amount shall carry interest at the rate of 8% per annum.
