Complainant by filing this complaint has submitted that he was searching for a suitable flat in an around his area for shifting from his residence. So, he hired the service of the op developer Sri Dipak Chanda (op No.1) for purchasing a flat as he was engaged in developing a building on the land measuring 3 cottah, 13 chattacks at K.M.C. Holding No. 86, Ananda Palit Road, Kolkata – 700014 and in fact there was an Development Agreement in between the Developer Dipak Chand (O.P. No.1) with other ops i.e. Landlord and Landlord executed General Power of Attorney on 08.11.2007 and executed the General Power of Attorney on 13.11.2007 in favour of Dipak Chanda, op no.1, the Developer.
Both the agreement in between the Landlord and the Developer as well the Power of Attorney executed by the Landlord empowers the op Developers to sell flats of his position. When complainant approached to op no.1, Developer for purchasing a flat in the building, op offered to sell a flat of the Road side of the said building at 86, Ananda Palit Road, Kolkata – 700014 on the 1stfloor and to that effect op obtained a sanctioned plan from K.M.C. and op no.1, Developer offered to sell a flat of the South-West portion of the said building at the said premises on the 1stfloor having the total measurement of the flat is 600 sq. ft. more or less including 25 percent Super Built Area.
Accordingly the agreement for sale of the flat was executed on 25.04.2011 between the Developers (OP No.1) and the purchaser fixing a total sum of Rs. 10,17,500/- including Rs. 6,60,000/- as booking amount i.e. initial payment and the excess amount of Rs. 74,000/- was paid by installments and in total complainant paid Rs.10,05,000/- by installments both in cash and cheque and money receipts were issued by op.
Further op developer executed another agreement on 06.02.2012 for selling another flat of 440 Sq. Ft. including 20 percent Super Built up area situated at 3rd floor at the north side of the road at the rate Rs. 1,500/- per Sq. Ft. for a total value of Rs. 6,60,000/- and a sum of Rs. 1,25,000/- was paid at the time of booking and it was agreed that if flat would not be handed over within 18 months in that case at the rate 20 percent per annum would be paid and refunded along the booking amount but even then ops have not performed their part performed and has/have not handed over the flats as yet though 18 months already expired from the date of execution of the agreement to sale dated 25.04.2011 and 06.02.2012.
But as per requirement of the op no.1, Developer most of the payment is made but the building is yet to be finished in spite of repeated reminders made by the complainant and complainant and other intended purchasers persuaded the op for completion of the building and handing over the flat at an early date but op has been delaying the completion willfully and motivatedly with an ill intention of enhancing the consideration amount.
But with the passage of time, complainant became frustrated when op failed to handover the flat within 18 months from the date of getting sanctioned plan of the building from K.M.C. Fact remains that plan was sanctioned on 12.03.2010. Then within 18 months i.e. on or about 12.10.2012 and 06.02.2014 flat would be delivered to the complainant. But that has not been done. when the complainant asked the op no.2 to handover the flat and execute and register the deed of conveyance, op did not respond when complainant lodged a complaint to CA&FBP, the Government of West Bengal against op for redressal and CA&FBP arranged for a mediation meeting on 26.09.2013 at 3:00 P.M. vide Memo No. 1 dated 15.01.2013 but the op did not attend.
Another mediation meeting was fixed on 03.10.2013 vide memo No. 58 dated 04.02.2013 but fornon-co-operation of the ops to the amicable settlement could not be mediated. So, CA&FBP Authority advised the complainant to move before the appropriate Forum for redressal and in the above backdrop, the complainant was compelled to file this complaint being harassed and without getting any proper relief from the op though op is bound to perform his part performance when he has already received the entire amount and also some excess amount against the agreement and prayed for redressal against the op.
On the other hand op no.1 by filing written statement submitted that the entire complaint is speculative, harassing, motivated, and vexatious and filed with a view to make wrongful gain. It is specifically mentioned that he cannot go beyond the law of the land and practically he was bound to stop the construction work of the said premises as the K.M.C. had stopped work in respect of the construction of the said premises and for that reason, the construction is now stopped and complainant could not construct any further in that premises till disposal of the stop work notice issued by the Kolkata Municipal Corporation.
But it is specifically mentioned that measurement of the flat is 600 sq. ft. including 25 percent Super Built area and in case price of the said flat is Rs. 10,17,500/-. But op has asserted that no excess payment has been paid by the complainant. But complainant falsely mentioned many matter. It is further submitted that due to escalation of the price of the building materials, the present valuation of the said flat is higher than that of the fixed amount as per agreement but op no.1 Developer has no intention of extract more money from the complainant and there is no hand of the Developer for delaying construction. Construction work is stopped due to notice of stop work by K.M.C. Authority and that matter is pending and practically there was no negligence and deficiency on the part of the op.
Truth is that some neighbours raised objection about the construction and lodged complaint before the K.M.C. for their unlawful gain and for that the authority issued a stop work notice upon the Premises on 27.11.2010 and for which the construction work has been stoppedthen and there and after that on 22.12.2013 again the construction work of the building was started to complete the construction of the building and for constructing the parapet wall on the roof was started but again the neighbours started to give objection and lodged complaint to the K.M.C. and for that the concerned authority again issued a stop work notice on 23.12.2013 and the construction work stopped. In the above circumstances, op has prayed for dismissal of the case.
Decision with reasons
On proper consideration of the complaint and the written version and further considering the materials on record, it is clear that the agreement for sale of flat was executed on 25.04.2011 in between Dipak Chand and the present complainant and as per agreement, it is proved that price of the flat is fixed at Rs. 10,17,500/- i.e. Rs. 1,850/- per Sq. Ft.
Truth is that measurement of the flat is 555 Sq. Ft. more or less including 25 percent Super Built up area and out of Rs. 10,17,500/- at the time of execution of the said agreement to sale Rs. 2,50,000/- was paid by the complainant which is admitted fact. So, balance amount is to be paid by the complainant is Rs. 86,75,000/-.
Fact remains that op already received some amount and that has not been denied by the op. From money receipt dated 25.04.2011, 25.05.2011, 07.06.2011, 22.07.2011, 22.08.2011, 16.09.2011, 16.11.2011 and 24.12.2012 as noted on the back side of sale agreement dated 25.04.2011 and it is proved that op received total Rs. 70,00,000/- out of fixed amount of Rs. 10,17,500/-.
Further it is found that complainant also paid Rs. 1,25,000/- to the op against second agreement to sale dated 06.02.2012. So, apparently it is proved that complainant has paid so far a total sum of Rs. 8,25,000/- to the op and to about those money receipts op has not denied that but total fixed amount is Rs. 10,17,500/- and for another flat of Rs. 6,60,000/-. So till now complainant is liable to pay balance amount,out of total fixed amount that is the area of second flat is 440 Sq. ft. of fourth floor road facing flat.
But at present the situation is complicated in view of the fact thatit is undisputed fact that this op no.1, Developer was instructed by a notice of the KMC for stop construction work on 27.11.2010 and op was compelled to stop construction work. Thereafter that stop construction work order was withdrawn. But again the local people raised objection and K.M.C. again served a notice on 23.12.2013 upon the op no.1 for stop construction work for which the construction work of the entire premises are stopped and the dispute has not yet been decided by the K.M.C. So, apparently it is clear that it is not the fault of op but he is stopped to proceed with the construction work by the order of K.M.C. lastly vide notice/order dated 23.12.2013.
It is heard at the time of argument that this matter has not yet been disposed by the K.M.C. for which the construction work has not been completed by the op. So, laches on the part of the op is not proved. But it is fact that one or two persons occupied their flats even if some portion of the entire Premises is not completed.
Truth is that it is the duty of the Developer to complete the construction work and to handover the flat. Fact remains that op no.1, Developer has confessed that he is willing to handover the same that is the respective flat to the flat owners and he has also admitted that he has already received Rs. 8,25,000/- for two flats out of total price of Rs. 10,17,500/- and Rs. 6,60,000/-. So, it is also proved that complainant is liable to pay balance amount at the time of receiving the possession of the flats. But at present it is not possible for the op to hand over till the stop construction work order of the K.M.C. is not withdrawn and for which invariably complainant and ops shall have to wait till withdrawal of the said order of the Kolkata Municipal Corporation.
In the above circumstances, there is no other alternative but to pass such order with a direction to the op to complete the flats in a habitable condition and to hand over the possession of the flat within one month from the date of withdrawal of the stop construction work order of the Kolkata Municipality Corporation (KMC) and thereafter shall have to execute and register the sale deed in favour of the complainant on receipt of the balance amount.
Accordingly this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against op no.1 with a cost of Rs. 5,000/- and same is allowed exparte against op no.2 but without any cost.
Ops particularly op no.1 is hereby directed to complete the entire construction of the flats in question including the complex within one month from the date of receipt of withdrawal of stop construction work of K.M.C. and to hand over the flat in question in favour of the complainant within 45 days from the date of full completion of the flat after withdrawal of the stop construction work of the K.M.C. on receipt of balance amount from the complainant and within one month from the date of delivery of possession of the flat in favour of the complainant.Ops, particularly op no.1 shall have to execute and register the sale deed in respect of the said flat in favour of the complainant.
If op no.1 disobeys the order of this Forum and fails to comply the order of the Forum in that case for each month’s delay to deliver the kash possession of the flat and for non-execution and register of sale deed in dispute in favour of the complainant.Op no.1 shall have to pay a monthly damages of Rs. 25,000/- per month till full satisfaction of the decree and if it is collected 50 percent shall be paid to the complainant and balance 50 percent shall be deposited to the Forum’s account as penal damages.
Even if it is found ops are unwilling to comply the order of this Forum, in that case penal proceeding shall be started for which further penalty and fine shall be imposed upon them.
