This case has been filed U/s.12 of the Consumer Protection Act, 1986, by the complainant, Dharmendra Kumar Pandey.
The case of the complainant’s in short is that opposite party No.1 & 2 entered into an agreement with the complainant on 28.3.2014 for selling a flat which is mentioned in the schedule-B for a total consideration of Rs.12,35,000/-. At the time of agreement the opposite party No.2 received a sum of Rs.3,00,000/- through cheque from the complainant on behalf of opposite party No.1. On 14.8.2014 the opposite party No.2 also received a sum of Rs.2,00,000/- from the complainant through NEFT on behalf of the opposite party No.1. Further on 18.10.2014 the opposite party No.2 also received a sum of Rs.1,50,000/- from the complainant through cheque. That on 1.12.2014, 27.12.2014 and 9.1.2015 the complainant also paid Rs.50,000/-, 2,40,000/- and Rs.76,000/- to the opposite party No.2 on behalf of opposite party No.1 through cheque. Thus the opposite party No.2 received total sum of Rs.10,16,000/-.
The opposite party agreed to complete and hand over and make registration of the said described flat in favour of the complainant within 18 months from the dated of agreement, which is end on 28.9.2015. But in the month of October, 2015 when the complainant make visit to the said flat the complainant became astonish to see that the flat in question was not completed within the said period. The complainant repeatedly requested the opposite party to complete the flat but opposite party did not do so. The opposite parties assured the complainant that within 15th December, 2015 they will deliver the flat in question.
After expiry of 15th December, 2015 the complainant make a further visit in the said flat on 26.12.2015 but they failed to show the complete flat described in the B-schedule property. Thereafter the complainant sent a lawyer’s notice on 2.1.2016 stating the grievance and requesting the opposite parties to execute and registered a deed of sale in favour of the complainant within 31.1.2016 but the opposite parties pay no heed to the utter cry of the complainant.
Finding no other alternative the complainant has compelled to file this case before this Forum with a prayer to direct the opposite party No.2 to execute a deed of sale in favour of the complainant at a consideration of Rs.12,35,000/- in respect of B-Schedule property after receiving the balance amount of Rs.2,19,000/-, to pay a sum of Rs.2,00,000/- towards compensation for mental loss and agony and to pay Rs.1,00,000/- towards litigation cost.
The opposite party No.1 & 2 contested this case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that when the alleged agreement was executed it was mentioned therein that the developer is bound to hand over the flat in question within 24 months from the date of execution of the agreement. But instant case was filed before the expiry of 24 months. That the flat in question has presently a super built up area of about 709 Sq ft. according to the layout plan and thus the total consideration should be Rs.13,47, 100/- only. These opposite parties further submit that they were all along ready to hand over the flat agreed to be purchased and registered the same but the complainant was guilty of not paying the balance consideration money. The complainant took time to pay the balance consideration money. Hence, the case.
The opposite party No.3 & 4 contested this case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit that when the alleged agreement was executed it was mentioned therein that the developer is bound to hand over the flat in question within 24 months from the date of execution of the agreement. But instant case was filed before the expiry of 24 months as according to the complaint petition the date of execution of the impugned agreement was on 28.3.2014. So, the instant case is thus premature one. That the flat in question has presently a super built up area of about 709 Sq ft according to the layout plan and thus the total consideration should be Rs.13,47,100/- only. These opposite parties further submit that they were all along ready to hand over the flat agreed to be purchased and registered the same but the complainant was guilty of not paying the balance consideration money. The complainant took time to pay the balance consideration money. These opposite parties further submit that they are not guilty of any doing wrong towards the complainant. The complainant has instituted the instant case to make unlawful gain.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Dharmendra Kumar Pandey, 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 his 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 Dharmendra Kumar Pandey 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 want to get the schedule mentioned flat executed and registered from the developer and the land owners so he is entitled to get service from the OP 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.15,35,000/- for value of the flat, loss sustained by the complainant and as compensation for mental agony and other expenses 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 Complainant?
The case of the complainant is that the opposite party No.1&2 are the developers and opposite party No.3&4 are the owners of the land. The opposite party No.1&2 entered into an agreement with the complainant on 28.3.2014 for selling a flat described in the B Schedule of the complaint petition for a consideration of Rs.12,35,000/-. The opposite party No.2 on behalf of the opposite party No.1 received a sum of Rs.3,00,000/- through cheque from the complainant during the period of agreement which was remitted in the account of the opposite party No.1 on 04.07.2014. That on 14.8.2014 the opposite party No.2 also received a sum of Rs.2,00,000/- from the complainant through NEFT on behalf of the opposite party No.1. Further on 18.10.2014 the opposite party No.2 also received a sum of Rs.1,50,000/- from the complainant through cheque. That on 1.12.2014, 27.12.2014 and 9.1.2015 the complainant also paid Rs.50,000/-, 2,40,000/- and Rs.76,000/- to the opposite party No.2 on behalf of opposite party No.1 through cheque. Thus the opposite party No.2 received total sum of Rs.10,16,000/-. After the expiry of said statutory period of 18 months the complainant visited the site of the flat property on October, 2015 and on Nov.2015 and noticed that the flat in question is yet to be finished. Then he requested the opposite party No.2 to handover the possession who on his turn took time and promised to handover the flat on Dec.2015. Then the complainant served legal notice on 02.01.2016 stating the grievance and requesting the opposite party no.1&2 to handover and execute and register the deed of sale in favour of the complainant within 31.01.2016. When the opposite party failed to handover the flat in question and also failed to execute & register the deed of conveyance so the complainant getting no alternative filed the instant complainant before this Forum praying directions upon the opposite party.
The opposite party No.1&2 by filing written version denied the allegations and averred that the alleged agreement was executed it was mentioned therein that the developer is bound to hand over the flat in question within 24 months from the date of execution of the agreement. But instant case was filed before the expiry of 24 months. That the flat in question has presently a super built up area of about 709 Sq ft according to the layout plan and thus the total consideration should be Rs.13,47, 100/- only. These opposite parties further submit that they were all along ready to hand over the flat agreed to be purchased and registered the same but the complainant was guilty of not paying the balance consideration money. The complainant took time to pay the balance consideration money.
The opposite party No.3 & 4 by filing written version also denied inter-alia all the material allegations as leveled against them. These opposite parties submit that when the alleged agreement was executed it was mentioned therein that the developer is bound to hand over the flat in question within 24 months from the date of execution of the agreement. But instant case was filed before the expiry of 24 months as according to the complaint petition the date of execution of the impugned agreement was on 28.3.2014. So, the instant case is thus premature one. That the flat in question has presently a super built up area of about 709 Sq ft according to the layout plan and thus the total consideration should be Rs.13,47,100/- only. These opposite parties further submit that they were all along ready to hand over the flat agreed to be purchased and registered the same but the complainant was guilty of not paying the balance consideration money.
After perusing the complaint petition, written version, evidence on affidavit and hearing the argument of the complainant this Forum is in the opinion that the complainant paid the consideration money during agreement for sale. When the OP No.1 to 4 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 schedule A property out of B schedule property and compensation for harassment since long causing mental pain and agony and litigation cost. The opposite party No.1&2 and opposite party 3&4 in their written version admitted the agreement and assailed that time was fixed 24 months for delivery of flat but the complainant filed the instant complaint before the expiry of the period so the complaint case is premature one but also admitted that they are ready to deliver the possession after taking the balance consideration money from this complainant. The opposite party also assailed that the measurement of the said flat has increased to 709 sq ft. It appears from the agreement dated 28.03.2014 in between the complainant and the opposite party that in the column; 5) Completion it is stated that the developer shall complete and make habitable the said flat within 18 months and shall install and /or complete the common portion described in the Annexure thereto within 6 months thereafter. The measurement of the flat has been stated in the agreement is 650 sq ft approx. So this forum is in the opinion that the opposite party failed to handover the flat in habitable condition within 18 months from the date of agreement. The complainant tried his level best to cooperate with the opposite party for getting his flat delivered and registered before the appropriate authority. After paying a lump sum amount of Rs.10,16,000/- out total consideration of Rs.12,35,000/- the complainant did not get his flat delivered in his favour and the opposite party killed time on lame excuse for which the complainant suffered pain and agony at the behest of negligence on the part of the opposite party. So the complaint petition filed by the complainant is deserved to be allowed with cost & compensation.
As such this Forum is in the opinion that the complainant after paying the balance consideration money to the O.P. No.1&2 is entitled to get his flat as described in the A schedule of the complaint petition out of B schedule, registered by O.P. No.1 to 4, 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 him but it remain unheeded. The O.P. no.1&2 tried to evade their responsibility by putting blame on the complainant for non payment of dues.
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 his 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 delivered and registered so he suffered loss for which he is entitled to compensation of Rs.20,000/- from the opposite party no.1&2. Delivery of possession depends upon the developers i.e. opposite party No.1&2.
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 delivery and 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 his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
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 in respect of delivery of possession and execution & registration of deed of conveyance.
ORDER
Hence, ordered that the complaint case being No.14/2016 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.8000/- to be paid by the OP No.1&2.
The Opposite Party No. 1 to 4 are directed to execute and register the deed of conveyance in favour of the complainant after taking the balance consideration money by the OP No.1&2 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 Party No.1&2 are directed to pay compensation amounting to Rs.20,000/- to this 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.
