FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

            The complainant Miss. Chhabii  Roy  has filed this petition  of complaint U/s 12 of CP Act, 1986.

 The fact of the case in brief is that the OPs 1 to 6 are the joint owners in respect of the land measuring about 3 cottahs  12 chittacks 20 sq. ft.   as mentioned in schedule “A” of petition of complaint  as together with 2 storied building lying and situated at Municipal Premises No. 57, S N Banerjee Road, PS-Taltala, Kolkata-700014 under the jurisdiction of KMC  Ward No.  53 borough No. VI.   It is further stated that the complainant was a monthly tenant in respect of two rooms, one kitchen, two bath and privy, two varandas with all other common facilities on the first floor of the two storied building as mentioned in the schedule “B” of the petition of complaint.

It is further stated by the complainant that in the year  2011 the original owner Raghunath Ghosh, Dilp Kumar Ghosh ,  Dibyendu Ghosh, Smt. Latika Ghosh and. Smt. Reba Banerjee decided to make a high rise building upon a schedule property with the help of  developer i.e. M/S Limra construction being a partnership firm of the locality. Accordingly, the owners as named above have entered into a development agreement dated 31.03.2011 with the OPs 1 to 6 for development of the said  “A” schedule property. Thereafter, the OPs 1 to 4 and the aforesaid Raghunath Ghosh  executed a power of attorney in favour of fayaziya who is one of the partners of M/s Limra Construction  and the said power of attorney is registered before ADSR, Sealdah and duly recording Book No. IV, CD Volume No. 1 page 5031 to 5044 being No.  00489 for the year 2011 to deal with the new construction of the building . By dint of that power of construed attorney being empowered to sell flat/flats and car parking spaces of the developers allocations in terms of the agreement dated  31.03.2011. Subsequently, said Raghunath Ghosh  suddenly demised leaving behind his wife Smt. Bela Ghosh and his son Chandan Ghosh and one daughter Smt. Chitra Sarkar. Subsequently, Bela Ghosh died on 12.06.2013. After demise of Raghunath Ghosh, Bela  Ghosh, Chandan Ghosh and Chitra Srarkar  being  the legal heirs of Raghunath Ghosh since deceased inherited all rights, title and interest in the a schedule  property in question as per Hindu Succession Act. Thereafter, said Bela Ghosh, Chandan  Ghosh and Chitra Sarkar being the legal heirs of late Raghunath Ghosh entered into a supplementary development agreement with M/s Limra Construction on  or about  09.01.2013 and the OPs 1 to 6 further executed a registered general power of attorney in favour of fayaziya who is one of the partners of the M/s Limra Construction. By dint of that power of attorney dated  09.01.2013 the said fayaziya was empowered to sell flat/flats and car parking spaces of the developers allocations in the same terms of the developers agreement dated  31.03.2011. Thereafter, the OPs 1 to 6 along with the developer had come to the complainant  with the proposal to cooperate with the owners and the developers  for making a high rise construction  upon the said plot of land of A schedule property and she expressed her mind that he offered to purchase a self contained flat on the 3^rd floor of newly constructed building comprising  one bed room with attached bath and kitchen measuring about  200 sq. ft build up area on the Southern East of newly constructed building together with  proportionate shares of land of G+3 storied building has mentioned “B” schedule  property and total consideration amount of Rs. 25,001/- only.  Accordingly the complainant agreed to co operate with the OPs 1 to 6 and also agreed to purchase one self contained residential flat on the 3rd floor measuring about  200 sq. ft.  Comprising one bed room together with attached bathroom of the proposed building against her tenancy right in the building and for the purpose of getting the flat, the parties are agreed to sell the same on a consideration of Rs.  25,100/- and therefore, one agreement for sale has been executed by and between  the parties duly registered before the Additional Registrar of Assurance –II, Kolkata which has been recorded in Book 1, CD, Volume-24, Page-237 to  265  being No. 07451 for the year 2013  with certain terms and conditions as written therein.

As per terms and conditions of the said agreement for sale the complainant has duly paid of Rs. 20,000/- (Rs. Twenty thousand) only by cash out of the total consideration of Rs.  25001/-. (Rs. Twenty five thousand one) only to the OPs as advance and the rest amounting to Rs.  5001/- (Rs. five thousand) only was/is due and payable by the complainant to the OPs at the time of registration the deed of conveyance in respect of the said flat.  It is further stated by the complainant that in sale agreement dated  22.05.2013 in clause No.  6 and 19,  the developer  agreed to complete the building  and to deliver the possession of the said flat in question within  26 months from the date of registered  Agreement for Sale.  It is alleged that the OPs failed to handover the physical possession of the flat in question within stipulated period as mentioned in the agreement for sale and after lapse of several years on the request of the complainant, the OP No.  7, the developer ultimately handed over the incomplete flat in question to the complainant on  02.10.2015  and the complainant has taken possession from the developer M/s limra construction to its partners No. 8(I) to 8(V). As per agreement for sale, the developer also agreed to pay compensation of Rs.  2,000/- per month to the complainant as per clause No.  22 of the agreement for sale due to delay in delivery of possession but in fact the developer failed to pay the same to the complainant.

  It is further stated by the complainant that as per clause of 21 of the agreement for sale the complainant is entitled to get shifting charges of Rs.  5000/- but the developer failed to pay the charged since 02.06.2013 up to 02.10.2015 in total for 28 months and the charge amounting to Rs.  1,40,000/- in total is payable by the OPs No. 7 as shifting charges to the complainant. It is further stated by the complainant that on several occasion she requested the OPs for registration of the aforesaid self contained flat situated on 3^rd floor of the newly constructed building as mentioned in the B schedule of the petition of complaint on receipt of balance consideration amount of Rs. 5,001/-  (five thousand one) only but the OPs did not pay any heed to her ward. They did not pay the shifting charges and did not install lift in the building till the date. The OPs failed to provide the completion certificate in spite of repeated demand. Hence, the petition of complaint is filed by the complainant with a prayer to direct the OPs for registration the deed of conveyance of “B” schedule flat in G+3 storied building as mentioned in the schedule “A” of the petition of complaint. It is further prayed by the complainant to give direction to the OP No. 7 to pay compensation of Rs.  10,00,000/- for harassment, mental pain and agony  and also to direct the OP for completion of  entire building by installing lift and boundary wall and also give direction  to the OPs for handing over the completion certificate.  The OPs 1 to 6 did not appear in this case  and to contest the same. Thus, the case runs ex parte against them vide order No. 13 dated 24.01.2020.

The OP No. 7 and 7 (i) have contested the case by filing a WV denying all the material allegations levelled against them. It is the case of the contesting OPs No. 7 and 7 (i) that the OP No. 7 is partnership firm and the OPs 7 (i) is one of the partners of the OP No. 7 and authorised signatory.  The OP-7 (i) has stated that the instant case is false, frivolous and harassing and thus not maintainable in the eye at law. It is further case of complaint that the case is suffering non-joinder and mis-joinder of necessary parties and also barred by limitation.

It is the admitted by the contesting OP that the complainant was the monthly tenant under the OPs 1 to 6 in respect of the “A” schedule property and presently he is the intending purchaser in respect of “B” schedule flat measuring about 200 sq. ft. build up area on 3^rd floor on the preemies no. 57, S. N. Banerjee Road, PS-Taltala, Kolkata-700014. In respect of said purchase, the complainant entered into one registered agreement for sale with the OPs 1 to 6 and OP No. 7 is the confirming party on  22.05.2013. It is further stated by the contesting OP that after completion of the flat in question  “B” schedule property the OP No. 7  handed over the possession of the said flat to the complainant on 02.10.2015 and since then the complainant is residing  the said in  flat without any objection .  

It is the further case of the OP that the complainant has no remedy before this  commission rather he should file a case for specific performance of contract before the Civil Court. So, the instant case may be rejected at limini.

It is further case of the OPs that he made arrangement for shifting charges of the complainant from his own fund on  22.05.2013 to  20.10.2015.  Therefore, the complainant is not entitled to get Rs. 1,40,000/- only form the OPs 7 towards shifting charge.

 It is also stated by the OP that the flat in question has handed over to the complaint inhabitable condition and the OPs 7(i) are ready to execute and register the final deed of conveyance in favour of the complainant  in respect of the  flat in question.

It is the OPs case that they did not install the lift due to objection raised by complainant and other co owners of the said buildings.

 It is further case of the OPs party that they could not be able to get completion certificate from KMC authority because other occupiers  of the building has been deviated the flats.

It is stated by the OP No. 7 and 7 (i) that the complainant is not entitled to get the relief on the prayer  for  and they made  baseless allegation against the OPs. Thus petition of the complainant is liable to be dismissed with cost.

In view of the above stated facts and circumstances, it has to be decided by this commission that:-

1. Whether the case is maintainable in its present formed in law?

2. Whether the complainant has any cause of action to file this case?

3. Is the complainant a consumer?

4. Is there any deficiency in service on the part of OPs?

5. Is the complainant entitled to get relief as prayed for?

6. To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons

All the points are taken up together for convenience of discussions and to avoid unnecessary repetitions.

From the facts and circumstances as well as materials on record,  it is palpably clear that  both the parties of this case are residing and running their business under the territorial jurisdiction of this commission. The case value is also within the pecuniary limit of this commission and the case has been filed by the complainant well within the limitation period having a strong cause of action.

Hence, in view of the discussion made above, it is revealed that the case is well maintainable in the eye of law and the complainant has/had sufficient cause of action to file this case.  

Let us see whether the complainant is a consumer or not within the ambit of CP Act, 1986.

From the WV as filed by the contesting OP No.  7 and 7 (i), it is revealed that admittedly the complainant entered into agreement for sale with the OP members on  22.05.2013 in respect of one self contained flat measuring about  200 sq. ft build up areas comprising with one bed room, together with attached bathroom and kitchen  on the 3^rd floor south eastern side of newly constructed building  at a total consideration of Rs.  25,001/-( Rs. twenty five thousand one) only at  57, S N Banerjee Road, PS-Taltala, Kolkata-700014, within the limit of KMC, ward No. 53, borough VI. It is further revealed from the evidence on record that at the time of execution of the registered agreement,   the complainant paid Rs.  20,000/- towards consideration money in cash to the contesting OPs out of total consideration money  Rs.  2,5001/- only. So, as and when the complainant entered into registered agreement dated 22.05.2013 for purchasing the flat in question as described in schedule B of the petition of the complaint on payment of part consideration of Rs.  20,000/- in cash to the OP-7 and 7 (i)  out of the total consideration of Rs.  25,001/- for getting service from the OPs till then the complainant is a consumer within the ambit of CP Act,  1986 which is also admitted by the contesting OPs in their WV and it is needless to mention here that the contesting OPs are the service provider  to the complainant/consumer.

Practically,  it is admitted by the contesting OPs 7 and 7 (i) in their WV that though they handed over the possession of flat in question to the complainant on  02.10.2015 but it is alleged by the complainant that the contesting OPs did not pay the shifting charges to the complainant which is in total a sum of Rs.  1, 40,000/-.  It is further alleged by the complainant in her petition of complaint that on several  occasion, she requested the OPs 7 and 7 (i) to register the flat in question in her favour by executing a registered deed of conveyance but they did not pay any heed to her request . We have got the support of this complaint made by the complainant from the admission of the contesting OPs in their WV that they are ready to register the deed of conveyance in favour of the complainant in respect of the flat in question in any point of time on payment of balance amount of consideration.

From the discussions made above, it is revealed that though the OPs have handed over  the possession of the flat in question to the complainant in the year  2015 but till date they did not execute the registered deed of conveyance in respect of the said flat  (B schedule ) on receipt of balance consideration money. From the evidence of materials on record, it is palpably clear that the complainant requested the contesting OPs on several occasions i.e years together to execute the deed of conveyance in her favour to execute the registered deed of conveyance in respect of b schedule property on receipt of balance consideration amount but the OPs harassed her by different means and caused mental pain and agony.

It is fact that the complainant was a tenant for a long time under the original owners of the A schedule property and subsequently, she agreed to enter into agreement for sale dated 22.05.2013 in respect of purchasing flat in question (B schedule flat) on payment of consideration Rs., 25,001/- only in total and admittedly she paid a sum of Rs. 20,000/- to the contesting OPs  in cash on the date of execution of the agreement for sale dated  22.05.2013.

 it is also admitted fact that in spite of giving her possession of the said B schedule flat in question in the year 2015 till filing of this case they did not execute the registered deed  of conveyance  and also failed to install the lift and to complete the boundary wall of the building (A schedule property ).

They also did not handover the completion certificate of the flat in question to the complainant. . The contesting OPs Parties harassed her by several means and compelled her to knock the door of this commission for getting the relief. So, the conduct of the contesting OPs should be considered as the negligence and deficiency in service on their part for which they should be liable to fulfil the terms and condition of the agreement for sale dated 22.05.2013 and also to pay compensation to the complainant as they caused her harassment mental pain and agony.

On the basis of discussions made above, it is held by this commission that the complainant has proved her case beyond all reason able doubt against the OPs and is entitled to get the relief as prayed for.

 All the points of consideration are thus, considered and decided in favour of the complainant . the case is properly stamped.

Hence,

Ordered

That the case be and the same is allowed on contest against OPs No. 7 and 7 (i) and exparte against OPs 1 to 6 with cost.

Complainant do get the decree as prayed for.

The  OP No. 7 and 7 (i) are directed to execute the registered deed of conveyance in favour of the complainant on receipt of balance consideration money.

The OPs 7 and 7(i) are further directed to hand over the completion certificate in respect  of flat in question  after completion of incomplete construction work to the complainant.

The OPs 7 and 7 (i) are directed to pay compensation of Rs. 50,000/- to the complainant along with interest @ 9 % p.a. on the amount either jointly or severally.  

The OPs 7 and 7 (i) are directed to comply the decree within 45 days from the date of this order id. The complainant is entitled to get further interest @ 2 % p.a. on the entire decreetal amount from the date  of default till realisation  of the entire amount either jointly or severally.  

If the OP- 7 and 7 (i) would fail to comply the decree within stipulated period,  the complainant would be at liberty to execute the same as per law.

Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.