Date of Filing : 05/11/2020
Date of Judgement : 05/12/2023
Sri Subir Kumar Dass, Hon’ble Member
The complainant for purchasing a flat entered into an agreement for sale with OP2 who is the Developer/Promoter as well as land owner of the Land in question where the building in which the flat shall be erected.
In terms of the said agreement dated 13/09/2017 the said flat was booked against total consideration of Rs.46,51,063/- along with car parking space and other privileges. For purchase of the said flat the complainant entered into a tripartite agreement with OP1 and OP2 by virtue of which OP1 sanctioned loan of Rs.33,03,247/- out of which Rs.22,00,000/- were paid by OP1 to OP2 towards the consideration of the said flat. The complainant also paid another Rs.14,01,760/- towards consideration of the said flat, thus collectively amounting to payment of Rs.36,01,760/-. Even after making payment of more than 80% of the total consideration, the complainant did not get the flat in question from the OP2 for whom it was mandatory to complete the flat and give possession as well as executing the deed of conveyance within 18 months(taking into account the extended period) in terms of the agreement for sale dated 13/09/2017. Since OP1 did not disburse the remaining amount of Rs.11,03,247/-, in time, the complainant could not pay the balance amount as per schedule of payment. After making several repeated effort by way of sending communications at different point of time to OP1 to disburse the remaining amount as well as to OP2 to execute and register the deed of conveyance, handing over the possession of the flat along with completion certificate issued by appropriate authority; which proved to be futile, the complainant lodged this complaint before this commission with the prayer for an order upon OP2 to execute and register the deed of conveyance with respect to the said flat more specifically, mentioned at Schedule ‘H’ of the agreement for sale, delivery of possession and completion certificate with respect to the said flat; and upon OP1 to disburse the remaining amount of sanctioned loan. The complainant also prayed for relief in the form of compensation and cost of litigation.
After filing the complaint, in course of pendency of the case, the complainant amended the complaint in number of occasions and finally submitted amended complaint petition dated 25/07/2023. In the said petition he has corroborated that OP1 disbursed amount of Rs.9,00,085/- to the OP2 through a cheque being No.587166 and remaining Rs.2,02,582/- was paid by the complainant to OP2.
Thereafter OP2 had executed the deed of conveyance in favour of the complainant in respect of the scheduled flat on 09/03/2021 vide Deed No. 1831/2021 before the Addl. Registrar of Assurances ,Kolkata but OP2 refused to deliver the peaceful vacant possession of the scheduled flat in favour of the complainant.
OP1 did not contest the case by filing written version and thus the case proceeded ex parte against OP1. OP2 filed written version, additional written version wherein they denied any deficiency in service on their part and mentioned that it is only the inordinate delay on the part of the complainant in making payment as per schedule for which execution and registration of the subject property could not be effected by them.
POINTS TO BE DECIDED :
Whether the complainant is entitled to get relief(s)
DISCUSSIONS AND FINDINGS
The complainant and contesting OP2 have filed evidences, exchanged Questionnaire and Reply and also forwarded Brief Note of Argument at the time of advancing oral argument in the case.
We have applied our mind and gone though the material on record together with the Annexure /documents filed by both the parties.
The complainant by virtue of obtaining sanction of loan amounting to Rs.33,03,247/- from OP1 in terms of the tripartite agreement to which OP2 was also a party, entered into the agreement for sale with OP2. Since OP1 agreed to disburse the loan amount as per payment schedule of OP2, departure on the part of OP1 in making such disbursement in time made the complainant suffer as OP2, being duty bound, was to execute the deed of sale and delivery of possession on receipt of total consideration. Hence we find the inordinate delay on the part of the OP1 in disbursing the remaining amount of loan effected the interest of the complainant to the extent of not getting possession of the flat as well as execution of deed of conveyance with respect to it.
The situation prevailed on the date of lodging the complaint changed with passage of time and during pendencey of the case OP1 has disbursed Rs.9,00,085/- in favour of OP2 and complainant made payment of the remaining amount of Rs.2,02,582/- to OP2. Thus on receipt of the total consideration as mentioned in the agreement for sale OP2 executed and registered the deed of conveyance with respect to the scheduled flat in favour of the complainant. At this point of time only grievance remains in the petition of complaint is non-delivery of the possession of the flat by OP2 along with completion certificate.
OP2 in defending his case mentioned that the complainant still has not paid the remaining payment of interest for late payment amounting to Rs.4,15,722/- and common area maintenance bill amounting to Rs.65,602/-. OP2 also mentioned that completion certificate dated 11/09/2019 has finally been granted to them on 13/02/2020 and mailed the complainant regarding the same on 21/02/2020.
Going by the agreement of sale we find that the said flat should have been completed in full and delivered to the complainant together with execution of deed of conveyance latest by the March 2019. But we find that OP2 communicated the complainant regarding taking possession of the subject flat only in February 2020. Thus clear cut delay of 10 months was there in offering delivery of possession to the complainant. Though it is fact that owing to delay in disbursement of remaining sanctioned amount by OP1, the complainant could not make payment as per time schedule but it is also comes from the material of fact that the complainant paid more than 80% of the total consideration well before the sending of communication offering delivery of possession. Thus the claim of interest by the OP2 does not sustain the balance of justice at all. Further payment towards the common area maintenance cannot come into the picture before delivery of possession of flat as maintenance is consequent to uses and in this case uses of common area maintenance did not occur as possession is denied by OP2 till date. Hence the payment stated to be due on the part of the complainant, as claimed by OP2, also does not sustain.
It is clearly mentioned in the tripartite agreement that to which OP-2 is a signatory the obligation of the OP2 under that agreement will be discharged on handing over possession of flat/occupant to the borrower and on handing over the original registered sale deed /titled document of the said flat/apartment to the OP1.
Accordingly, we find both such payments towards the interest and CAM charges are not payable as the service hired has not been completed.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
CC No.282/2020 is allowed ex parte against OP1 and on contest against OP2 with cost.
- OP2 is directed to deliver possession of the scheduled flat by way of hand over the key of the flat within 30 days from the date of this order.
- OP2 is also directed to handover copy of completion certificate to the complainant if not already handed over.
- OP1 to pay compensation of Rs.1,00,000/- to the complainant within 30 days from the date of this order.
- OP1 is also directed to pay Rs.10,000/- towards cost of litigation to the complainant within 30 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
As dictated and corrected by
Member
