FINAL ORDER

Samaresh Kr. Mitra, Member.

            This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Khushi Sarkar.

The case of the complainant’s in short is that complainant entered into an agreement with the opposite parties to purchase the flat which is mentioned in the schedule-B and schedule –B is a part of the property of schedule-A for a consideration of Rs.8,10,000/-.  The agreement was made on 07.04.2009.  In the agreement it is agreed that the complainant is to pay to the respondents the consideration money as provided in schedule E of the agreement and the developer undertook to complete the B schedule mentioned flat within time.

The complainant paid Rs.8,00,000/- only as part of the consideration money. The opposite parties handed over the B schedule flat to the complainant.  The complainant submits that till date the opposite parties have not completed the registration of the flat in her name.  The complainant has made several requests to the opposite parties to complete the registration work and she is ready to pay the balance consideration money but it is all in vain.

That the complainant further submits that she requested the partners representing the respondent No.5 on 12.2.2013 to complete the registration work but they said that they are willing to complete the registration but the owner respondents are refusing.  Then the complainant met with the respondent No.4 requested for the registration work.  The respondent No.4 refused to complete the registration work stating a further sum of Rs.2,00,000/- is required to be distributed among the respondents in addition to the agreed consideration value and then only the registration work would be completed.

The complainant has suffered mental agony and physical hardship due to the act of the opposite parties.  Finding no other alternative the complainant has compelled to file this case before  this Forum with a prayer to direct the opposite parties to complete the registration work of the flat in the name of the after receiving the balance consideration of Rs.10,000/- from the complainant, to pay compensation of Rs.1,00,000/-  and to pay litigation cost.

The opposite party No.3 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the opposite party No.1 to 4 have undergone a Development Agreement with the opposite party No.5 on 29.1.2008 and according to the said agreement  the opposite party No.5 agreed to develop a G+3 multistoried building over the A schedule property.  According to clause No.1 to 4 of owners allocation of the said Development Agreement dated 29.1.2008 the opposite party No.5 agreed to provide four flats to opposite party No.1 to 4 having carpet area 550 Sq ft. each (super built up area 649 Sq ft.) of which two in the ground floor and two in the second floor in the front side of the main road along with cash amount of Rs.1,00,000/- each to opposite party No.1 to 4.  The opposite party also agreed to provide other specification of work particularly mentioned in construction feature of development agreement dated 29.1.2008.

The opposite party No.3 further submits that on 19.9.2010 the opposite party No.5 handed over the possession of the flat No.102 at the ground floor to the opposite party No.3 and on the same date handed over the possession to him.  The opposite party No.3 wrote a note on the possession letter dated 19.9.2010 that possession letter is received in respect of flat.  But it is not verified and checked with the relation of agreement dated 29.1.2008.  Similarly the opposite party No.5 handed over possession of flats to the opposite party No.1, 2 & 4.  In presence of partners of opposite party No.5 and opposite party No.1 to 4 measurement of each of the four flats were taken and at that time it was revealed that carpet area of each allotted flats of opposite party No.1 to 4 were differ from the agreed carpet area of 550 Sq ft.  The opposite party No.3 was allotted to flat No.102 and its carpet area stands 502.56 Sq ft.  Thereafter opposite party lodged a false complaint before Uttarpara Police Station and a negotiation took place at the said police station.  The opposite party No.3 had filed his written representation on 23.6.2011 regarding the half done work of his allotted flat and also undertook if the works were to be done by the opposite party No.5.  He had no objection for doing registration in respect of other flats.  But inspite of that the opposite party No.5 has lodged false criminal case against opposite party No.1to 4 and the said case is still pending.  The opposite party instigates the petitioner to file this case.  Practically there is no deficiency of service on the part of the O.P. No.1 to 4 to the petitioner.

The opposite party No.4 contested this case by filing written version denying inter-alia all the material allegations as leveled against him. The opposite party No.4 submits that opposite party No.5 must abide by the agreement dated 29.1.2008 and in that case all the problem will be solved. Opposite party No.5 is responsible for suffering mental agony and hardship of the purchasers and it is settled law every purchasers has got the right but it is the obligation of the purchaser to know the details of problem and if the developer to fulfill the allocation of owners in terms and conditions as mentioned in the agreement, the opposite party No.4 along with opposite party No.1, 2 & 3 are willing to solve the problem. This opposite party No.4 also submits that the developer, opposite party No.5 play vital role in such of critical position.  A criminal case was lodged by developer against opposite party No.4 and it is pending in the Serampore court. The developer instigated the purchaser against the owner with an ulterior motive.

The opposite party No.5 also contested this case by filing written version denying inter-alia all the material allegations as leveled against him.  This opposite party submits that according to the development agreement with the owners/opposite party No.1 to 4, completed the construction of building including B schedule flat in compliance with the terms and conditions of the agreement and also delivered possession to the complainants in time.  This opposite party also delivered the flat to the owners along with Rs.4,00,000/- (Rs.1,00,000/- each).  This opposite party further submits that he is still ready to complete the registration of B schedule flat in the name of the petitioner subject to the instance of the owners/ opposite party No.1 to 4. The sum of Rs.1,32,000/- is payable to the opposite party No.5 from the complainant towards balance consideration money of B schedule flat.  The petitioner is not entitled to any money from opposite party No.5 as compensation because there is no latches on the part of them for non registration of schedule B flat as per agreement.  On the other hand the opposite party No.5 invested a lot of money towards construction of multistoried building including B schedule flat by taking loan from the outside/mahajon with high rate of interest and so, they have sustained a great loss monetarily for non-registration of the flats as per agreement and so they are entitled to have compensation from the complainants and the owners.

The opposite party No. 5(i), (ii) & (iii) contested this case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submits that complainant entered into an agreement with the respondents to purchase the flat mentioned in details in Schedule- B of the petition which is the part of the property described in the Schedule-A for consideration of Rs.9,00,000/- only excluding costs of additional works of construction payable by complainant to the opposite party only on 17.2.2009 but not Rs.8,10,000/- as stated by her.  It was agreed to purchase flat of 1000Sqft. @900/- per Sq ft.  The complainant paid Rs.8,00,000/-. There is due of Rs.1,00,000/- excluding additional cost of works of Rs.32,000/-.  So, totaling Rs.1,32,000/- is payable by the petitioner to opposite party No.5.

These Opposite parties also submit that they are/were still ready to complete sale of the flat of complainant subject to the direction upon opposite party No.1 to 4 for completing sale of her flat subject to the payment of question and also balance consideration money and cost of additional works of construction by the complainant to the opposite party No.5 positively.  Opposite party tried to its level best to complete sale of flat in question which are likely to be proved by the deed, papers and things submitted by opposite party No.5.  The aforesaid sale was/is not being completed due to non-cooperation from the end of the opposite party No.1 to 4. 

Both sides files evidence on affidavit and written notes of argument which are taken into consideration while passing final order.

ISSUES/POINTS   FOR   CONSIDERATION                                                                                                                         

1). Whether the Complainant Khushi Sarkar is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

    In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Khushi Sarkar is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned garage so she is entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.910,000/- for loss sustained by the complainants and as compensation for mental agony and other expenses including the cost of the flat ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.        

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

     The case of the complainant is that they entered into an agreement with the opposite parties to purchase the flat which is mentioned in the schedule-B and schedule –B is a part of the property of schedule-A for a consideration of Rs.810,000/-. The agreement was made on 7.4.2009. The complainant paid Rs.800,000/- only as major part of consideration out of total consideration of Rs.810,000/-. The opposite parties handed over the B schedule flat to the complainant. The complainant submits that till date the opposite parties could not complete the registration of the flat in her name.  The complainant has made several requests to the opposite parties to complete the registration work and she is ready to pay the balance consideration money but it is all in vain. The complainant further assailed that she requested the partners representing the respondent No.5 on 12.3.2013 to complete the registration work but they assure her to complete the registration but the land owners are refusing. Then the complainant met with the respondent No.4 & requested for the registration work but opposite party No.4 refused to complete the registration work stating a further sum of Rs.2,00,000/- is required to be distributed among the respondents in addition to the agreed consideration value and then only the registration work would be completed. So the complainant suffered mental agony and physical hardship due to the act of the opposite parties. The respondents are in league with each other. So she prayed reliefs before this Forum praying direction upon the opposite party as prayed in the prayer portion of the complaint petition.

The opposite party No.3 submits that the opposite party No.1 to 4 have undergone a Development Agreement with the opposite party No.5 on 29.1.2008 and accordingly the opposite party No.5 agreed to develop a G+3 multistoried building over the A schedule property.  According to clause No.1 to 4 of owners allocation of the said Development Agreement dated 29.1.2008 the opposite party No.5 agreed to provide four flats to opposite party No.1 to 4 having carpet area 550 Sq ft. each (super built up area 649 Sq ft.) of which two in the ground floor and two in the second floor in the front side of the main road along with cash amount of Rs.1,00,000/- each to opposite party No.1 to 4. The opposite party also agreed to provide other specification of work particularly mentioned in construction feature of development agreement dated 29.1.2008.

The opposite party No.3 further submits that on 19.9.2010 the opposite party No.5 handed over the possession of the flat No.102 at the ground floor to the opposite party No.3 and on the same date handed over the possession to him.  The opposite party No.3 wrote a note on the possession letter dated 19.9.2010 that possession letter is received in respect of flat.  But it is not verified and checked with the relation of agreement dated 29.1.2008.  Similarly the opposite party No.5 handed over possession of flats to the opposite party No.1, 2 & 4.  In presence of partners of opposite party No.5 and opposite party No.1 to 4 measurement of each of the four flats were taken and at that time it was revealed that carpet area of each allotted flats of opposite party No.1 to 4 were differ from the agreed carpet area of 550 Sq ft.  The opposite party No.3 was allotted to flat No.102 and its carpet area stands 502.56 Sq ft.  Thereafter opposite party lodged a false complaint before Uttarpara Police Station and a negotiation took place at the said police station.  The opposite party No.3 had filed his written representation on 23.6.2011 regarding the half done work of his allotted flat and also undertook if the works were to be done by the opposite party No.5.  He had no objection for doing registration in respect of other flats.  But inspite of that the opposite party No.5 has lodged false criminal case against opposite party No.1to 4 and the said case is still pending.  The opposite party instigates the petitioner to file this case.  Practically there is no deficiency of service on the part of the O.P. No.1 to 4 to the petitioner.

The opposite party No.4 in his written notes of argument stated that an agreement dated 29.01.2008 was made between opposite party No.4 & the opposite party No.5 and the petitioners entered into an agreement on 7.04.2009 with the developers namely Ashim Dutta, Goutam Kar, and Ratan Kar to purchase the flat no.101 measuring 900 sq ft mentioned in the schedule. The complainant already paid a sum Rs.8,00,000/- out of consideration money Rs.8,10,000/- to the opposite parties and they are ready to pay balance consideration money during the period of registration. The opposite party No.4 is one of the owner of ‘A’ schedule property and opposite party no.1,2&3 gave power of attorney to the opposite party No.4. The opposite party No.4 assailed that the case is not maintainable as because the contract between opposite party No.4 and the developers/ opposite party no.5 was not registered and as such the said agreement dated 29.01.2009 had no value in the eye of law. He did not put his signature in the contract between the purchasers and developers and he did not receive any money from the complainants. Developers also failed to fulfill the commitments of this opposite party No.4. So the petitioner is not entitled to get the relief according to her prayer until the developers fulfill their commitments towards opposite party no.4.

The opposite party No. 5(i), (ii) & (iii) also contested this case by filing written version & written notes of argument submits that according to the development agreement with the owners/opposite party No.1 to 4, completed the construction of building including B schedule flat in compliance with the terms and conditions of the agreement and also delivered possession to the complainant in time.  This opposite party also delivered the flat to the owners along with Rs.4,00,000/- (Rs.1,00,000/- each).  This opposite party further submits that he is still ready to complete the registration of B schedule flat in the name of the petitioner subject to the instance of the owners/ opposite party No.1 to 4. The sum of Rs.1,32,000/- is payable by the opposite party No.5 to the complainant towards balance consideration money of B schedule flat.  The petitioner is not entitled to any money from opposite party No. 5(i), (ii) & (iii) as compensation because there is no latches on the part of them for non registration of schedule B flat as per agreement.  On the other hand the opposite party No. 5(i), (ii) & (iii) invested a lot of money towards construction of multistoried building including B schedule flat by taking loan from the outside/mahajon with high rate of interest and so, they have sustained a great loss monetarily for non-registration of the flats as per agreement and so they are entitled to have compensation from the complainant and the owners.

The opposite party No. 5(i), (ii) & (iii) also submits that complainant entered into an agreement with the respondents to purchase the flat mentioned in details in Schedule- B of the petition which is the part of the property described in the Schedule-A for consideration of Rs.9,00,000/- only excluding costs of additional works of construction payable by complainant to the opposite party only on 17.2.2009 but not Rs.8,10,000/- as stated by her. It was agreed to purchase flat of 1000Sqft. @900/- per Sq ft. The complainant paid Rs.8,00,000/-.   There is due of Rs.1,00,000/- excluding additional cost of works of Rs.32,000/-.  So, totaling Rs.1,32,000/- is payable by the petitioner to opposite party No.5. They also submit that they are/were still ready to complete sale of the flat of complainant subject to the direction upon opposite party No.1 to 4 for completing sale of her flat subject to the payment of balance consideration money and cost of additional works. The aforesaid sale is not being completed due to non-cooperation from the end of the opposite party No.1 to 4. 

 After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainant paid the consideration money during agreement for sale and after completion of flat paid the major portion of consideration amount and in possession. When the opposite party No.4 to 5(i),(ii) & (iii) failed to execute & register the deed of conveyance then the complainant filed the instant complaint petition praying direction upon the opposite party to execute and register the flat which has been specifically mentioned in the schedule and compensation for harassment since long causing mental pain and agony. The opposite party No. 5(i),(ii) & (iii)  in his written version admitted that they have taken the consideration money from the complainant and agreed to execute and register the sale deed in favour of the complainant after getting the balance consideration money & for extra works. The opposite party No. 5(i),(ii) & (iii) also agreed to execute and register the sale deed in favour of the complainant. So, this Forum is in the opinion that the complainant after paying the balance consideration money to the opposite party 5(i),(ii) & (iii) are entitled to get her flat as described in the schedule of the complaint petition registered by O.P. No.4 to 5(i),(ii) & (iii) but delay of execution & registration of deed of this complainant caused due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to this complainant.

 It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of her but it remain unheeded. The O.P. no.4 tried to evade his responsibility by putting blame on O.P. No. 5(i),(ii) & (iii)  and similarly O.P. No.4  tried to get owner’s allocation from the O.P. No. 5(i),(ii) & (iii)  in this consumer dispute which is not tenable in the eye of law.

 Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in her favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the payment complainant is awaiting for a prolonged period and compelled to prefer the recourse of this Forum for getting the schedule mentioned flat registered so they suffered loss for which they are entitled to compensation of Rs.20,000/- from the opposite party no. 5(i),(ii) & (iii) .

   Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party No.4 & 5(i),(ii) & (iii)  in respect of non execution & registration of deed of conveyance.

ORDER

     Hence, ordered that the complaint case being No.55/2013 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.5000/- to be paid by the OP No. 5(i),(ii) & (iii).

    The Opposite Party No.4 and 5(i),(ii)&(iii) are directed to execute and register the deed of conveyance in favour of the complainant after taking the balance consideration money and money for extra works if any by the OP No. 5(i),(ii) & (iii) from the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.

    The opposite parties No. 5(i),(ii) & (iii)  are directed to pay compensation amounting to Rs.20,000/- to these complainant for mental pain and agony within the time framed.

    At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.