Order-12.
Date-10/08/2015.
In this complaint Complainants Anuj Sarkar & Sri Nirod Chandra Sarkar by filing this complaint has submitted that being attracted by the advertisement of the ops, complainants were interested to purchase a flat at Durgapur being Flat No. 2E/T1 on the 2nd Floor, super built area 634.645 sq. ft. of 2BHK as per Schedule ‘C’ of the agreement a covered car parking space from the ops (developer) for a total consideration money of Rs. 9,49,653/- ( Rs. 7,99,653/- + Rs. 1,50,000/- car parking space) against purchase of the flat and one car parking space for the same, complainant entered into an agreement dated 03.0-9.2013.
Out of the total consideration the complainants have already made a payment of Rs. 7,99,653/-, the cost of the flat on 25.05.2012 on which the complainants have a money receipt and the remaining amount of the car parking space of Rs. 1,50,000/- was to be paid at the time of execution of the deed of conveyance.That the op no.1 handed over the said booked flat within 36 months but even after expiry of so many months there was no progress in the site as the complainant visited the site and further he came to know that the ops will not be able to complete within the stipulated period and in fact ops failed and neglected to handover the flat and car parking space till date to the complainants as such ops as a service provider committed gross deficiency in service and adopted unfair trade practices for rendering services upon the complainants.
In fact ops are idle over the issue and failed and neglected to hand over the physical possession of the flat and car parking space in favour of the complainants as yet due to intentional laches on the part of the ops as the reason best known to the said ops.Though service provider ops are duty bound to perform their duties and obligation towards the consumer and violation of such obligation is a clear case of deficiency of service and adoption of unfair trade practice on the part of the ops and at the same time they have deceived the complainants from getting their legitimate claim and in the above circumstances, complainants have filed this complaint for hand over the possession of the flat and car parking space in favour of the complainants by way of registered sale deed of conveyance and to accept the rest of the consideration money fromthe complainants as per measurement and also as per the sanction plan approved by the municipality and also to direct the ops to pay a compensation amount of Rs. 10,00,000/- along with 18 percent interest p.a.
On the other hand ops by filing written statement submitted that the case is filed with an ulterior motive and for wrongful gain to harass the prestige of the ops with a cock and bull story.Further it is submitted that the alleged agreement for sale is not properly stamped or rather it is not registered according to the Indian Registration Act, 1908.So, the present complaint is barred by limitation.
Further op has denied all the allegations and specifically submitted that ops always performed their duties in respect of an agreement to sale and was always ready and willing to extend their service and in order to develop their property.But ops have purchased the suit/lands from the landlords on payment of consideration money and the deed of conveyances was executed to that effect also and therefore the ops were authorized to make multistoried residential cum commercial building on the suit property and sell the shop/space/office space/residential flats etc. in favour of purchasers and the ops the Promoter/Developer got building plan sanctioned from Local Municipality and for which sanctioned building plan was already constructed multistoried building over the said land with the right and power to absolute sale, transfer, convey the constructed area by a separate unit/flat, garage to the intending purchasers/buyers after taking consideration money.
It is specifically mentioned that the complainants violated the terms and conditions of the agreement for sale with regards to the payments of all proportionate charges in respect of the suit building.It is further submitted by the contesting ops that the ops always performed his part of duties and to execute and register the deed of conveyance and perform their part of duties and further submitted that there is no laches on the part of the ops.There is no deficiency of service.So, the present petition is not sustainable in the eye of law and further submitted that they are always ready and willing to execute the deed of conveyance and perform their part of duties.When ops are always perform their part of duties in respect of deed of agreement to sale, the complainants delayed the registration on various pretext.
Decision with reasons
On proper consideration of the entire materials on record including the written version of the ops, it is clear that ops admitted that they are willing to register the deed of conveyance by executing the same by handing over physical possession of the flat on receipt of the balance amount.But they have not denied the allegation of the complainants that complainants already paid Rs. 7,99,653/- on 25.05.2012 and truth is that the agreement to sale was executed on 03.09.2012.But anyhow Ld. Lawyer for the ops submitted that they are ready to handover the possession of the flat including garage after receipt of the balance amount and willing to execute and register the sale deed in favour of the complainants.But the cost for registration shall be paid by the complainants.But complainants are unable to bear the fees for registration for which it has not been registered.But when this Forum asked the Ld. Lawyer of ops to show that construction has been started and completed and it is habitable, at this stage and whether the ops have complied the clause 6.3.2 or 6.3.5 or not.When the Ld. Lawyer for the ops submitted that for some legal complications they have failed to complete it.But we have gathered from clause 6.3.5 that the developer shall construct and make the flat tenantable/habitable within 36 months from the date of obtaining the sanctioned plan and developer shall give the notice to the intending purchasers to take possession the flats and purchasers shall take it within 15 days from the receipt of the notice.But no such notice has been issued by the developer and complainant has not the same received as yet.
Then it is clear that construction has not been completed and in fact the allegation of the complainants that no construction has been made and there is no building as yet is proved and when the Forum asked the Ld. Lawyer for the ops what is the position of the construction, practically the Ld. Lawyer for the ops submitted that there is a legal battle for which the construction work has not yet been completed and thereafter the Ld. Lawyer for the ops submitted that they are willing to refund the entire amount by installment and the very submission of the Ld. Lawyer for the ops simply proves that the allegation of the complainants and there is no progress of the construction work is further well proved.
But in this regard we have gathered that ops have admitted that they executed the agreement for sale after receipt of the said amount and they are willing to execute and register the sale deed.But they have failed to produce any such document to show that the flat has been completed for delevering and complainants shall have to get the possession.
So, we have gathered that they have taken a false defence in the present case and it is known to all that Vivgyor Construction Company is running such business for cheating the public at large.Truth is that this company has already closed down their offices at different places and customers including the intending purchasers are on the foot path even on payment of huge amount and the very act on the part of the ops at present is no doubt unfair trade practice and they have no doubt deceived the complainant even after receipt of total amount of the flat of Rs. 7,99,653/- as total consideration of the flat and only for car parking space a sum of Rs. 1,50,000/- shall be paid by the complainants and complainants are willing to pay the same to pay the ops but the ops are not ready/willing to receive it and execute their whole project which is under legal turmoil.But fact remains that many projects have been seized by the Enforcement Directorate (ED) Department already for which ops are unable to handover the flats for which the Ld. Lawyer for the ops submitted that ops are willing to refund the entire amount with interest and Ld. Lawyer for the ops submitted that the said payment may be permitted to be deposited by installments.
But we find that question of payment by installment is not our business when the amount has been taken at a time prior to agreement to sale.Then invariably ops are liable to handover the flat and also the garage, car parking space after receiving Rs. 1,50,000/-.But from the argument of the Ld. Lawyer for the op, it is clear that they are not willing to receive the amount that means the entire allegation of the complainant is admitted by the ops and now to save their skins ops are trying to refund the same.But the whole purpose for payment to get a flat by the complainants has been frustrated due to negligent and deficient manner of service on the part of the ops and also for their adopting unfair trade practice in this matter and truth is that against Vibgyor Construction Co. so many cases are filed all over West Bengal because people at large (customers) are aware of this company and their deceitful manner of trade and only for the purpose of deceiving the customers (intending purchasers) in such a manner they opened such sort of business and so in all respect negligent and deficient manner of service on the part of the ops and their practice for deceiving the customers (intending purchasers) is well proved and such sort of act is no doubt an act of unfair trade practice which have been adopted in running such business and ultimately they are trying to close their business and ultimately they closed so many offices of different places already. In fact we have disposed of many cases of Vibgyor Construction Co. and in some cases they are paying the decretal amount by harassing the decree holder but strong step has been taken by the Forum and ultimately 3 or 4 execution cases are fully complied by the ops for taking penal action.
In the light of the above observation we are convinced to hold that the complainant is entitled to get a decree when op has admitted that they are ready to register the sale deed by handing over the possession of the flat.But when the Ld. Lawyer of the ops has submitted that they are willing to refund the same, then invariably alternative relief can also be granted in favour of the complainants considering the attitude of the ops and their manner of business to deceive the people at large.
Accordingly the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the ops.
Ops. Jointly and severally are hereby directed to hand over possession of the flat as per agreement as described schedule of the agreement to sale dated 03.09.2013 to the complainant within one month from the date of this order after receiving of Rs. 1,50,000/- from the complainants by giving proper receipt in respect of receipt of Rs. 1,50,000/- and for giving actual possession by handling over possession certificate and to execute and register the sale deed in favour of the complainant and if ops fail to comply that order, in that case alternatively ops shall have to pay Rs. 7,99,653/- along with 12 percent interest p.a. over the same w.e.f. 25.05.2012 and till this full payment to the complainant as alternative relief. If ops want to comply, in that case, that shall be complied within one month from the date of this order only if ops fail to comply the previous part of the order.
For harassing the complainants in such a manner and for causing mental pain and sufferings and also for adopting unfair trade practice and for deceitful manner of trade, ops shall have to pay a sum of Rs. 25,000/- as compensation to the complainants that shall also be paid within one month from the date of this order along with litigation cost of Rs. 10,000/-.
Further for adopting unfair trade practice and for running deceitful manner of trade and also for such sort of performance, ops jointly and severally shall have to pay penal damages of Rs. 30,000/- to this Forum and it is imposed to check such sort of unfair trade practice and deceitful manner of trade and if it is collected, it shall be deposited to this Forum’s A/c within one month from the date of this order and if ops fail to comply the order and disobey the Forum’s order, in that case penal action u/s 25/27 of C.P. Act 1986 shall be started for which further penalty and fine may be imposed.
