J U D G E M E N T
This complaint has been filed by the complainants against the Ops u/S. 12 of the C. P. Act, 1986 alleging deficiency in service for non-delivery of flat inspite of terms of agreement.
The case of the complainants is that the complainants were the owner and possessors of two plots of LR Plot No. 57 of Mouza Kamardiha, PS: Kulti, JL No. 51. In LR Khatian No. 1408 Mouza Kamardiha, PS: Kulti, JL No. 51, 3 satak of the said plot has been recorded in the same of complainant no. 1 and in Khatian No. 1409 of said Mouza 3 satak of said plot recorded in the name of complainant no. 2. The complainants entered into an agreement with the OP for constructing a multi storied building on their plot. As per agreement the OP was under obligation to deliver the flat to the complainants within 18 months from the date of approval of plan by the Kulti Municipality. All the formalities on the part of the complainants were executed and they have not violated any terms of the agreement so entered by the parties. After completion of stipulated period the complainants have visited several times to the office of the OP but pay no heed to the request of the complainants nor deliver the possession of the flat. The plot which has been handed over to the OP was residential house of the complainants and after vacating the same by giving possession thereof to the OP, complainants have to arrange an accommodation in a rented house for their residential purpose and the complainants have to pay Rs. 8,000=00 as rent to the landlord. Since the stipulated period of 18 months have expired the complainants have to pay Rs. 8,000=00 per month as rent and the fact was conveyed orally to the OP. In reply the OP assured that indemnification for the same will be done. At last in 21.3.2014 a registered possession certificate was executed by the OP in favour of the complainants though the completion certificate by Kulti Municipality was issued on 24.9.2013 but the OP did not deliver the flat to the complainants. Though the registered possession certificate was executed on 21.3.2014 but the actual possession was given on 09.6.2014. The complainants have to pay Rs. 8,000/- per month from September 2012 to May 2014 and for the 8 days of June 2014, totaling Rs. 1,72,000=00. Though the possession of the plot was given in favour of the OP within time without violation of contract but for the deficiency in service on the part of the OP, the complainants have to pay Rs. 1, 72,000=00 as house rent to their the then landlord, for which the complainants have to suffer mental pain and agony. The complainants have prayed for relief as under:
- Directing the OP to pay Rs. 1,72,000=00 for not delivering the flat within stipulated period,
- Directing the OP to pay a sum of Rs. 50,000=00 for mental pain and agony,
- Directing the OP to pay a sum of Rs. 25,000=00 as litigation cost.
The complainants have submitted documents like Xerox copy of Khatian No. 1408 & 1409, Xerox copy of agreement, Xerox copy of Notarised Possession Certificate, Xerox copy of completion certificate of Kulti Municipality and Xerox copy of possession letter issued by the OP dated 09.6.2014. The complainants have also filed Rulings of Hon’ble National Commission reported in (i) 2014 (2) CPR 32 (NC), (ii) 2014 (1) CPR 642 (NC), (iii) 2015 (1) CPR 59 (NC) and (iv) 2012 (3) CPR 5 (NC).
This complaint has been contested by the OP by filing written version denying the entire allegations made by the complainants in the petition of complaint. The OP further submits that the complainants entered into an agreement with this OP on 14.3.2011 to procure a flat in exchange of their said vacant land comprising carpet area of 925 sq. ft. in the 2nd floor (front facing) of the building complex along with one car parking space. It was also stated in the said agreement that the OP would hand over the possession of the said flat to the complainants within a period of 18 months on & from the date of approval of the plan by Kulti Municipality. It was also stated in the said agreement that any extra work in the flat concern cold be done with mutual discussion between the complainants and this OP and the complainants would have to bear the cost of extra work. This OP further submits that after completion of the construction of the said flat handed over the possession of the said flat to the complainants on 21.3.2014 and the complainants took the possession of the said flat with full and final satisfaction on the same date. Though as per agreement the complainants were entitled to get the flat comprising carpet area of 925 sq. ft. of the building complex irrespective of super built area along with one car parking space, but during construction of the said building as well as making extra work, as per direction of the complainants, the carpet area of the said flat was extended to 966 sq. ft. which has already been mentioned in the schedule of the possession certificate on 21.3.2014 notarized by Notary Public, Howrah. So this OP is entitled to get the cost of extra 41 sq. ft. as per rate of sq. ft. in the agreement. When the OP told the complainants to pay the cost of extra 41 sq. ft. carpet area, the complainants neither made any response nor paid the said cost. This OP further submits that though the complainants are entitled to get one car parking space measuring about 130 sq. ft. of the covered area on the ground floor on the newly constructed building but on request of the complainants this OP on good faith further provided one two-wheeler parking space of the covered area on the said ground floor measuring about 30 sq. ft. which has been categorically mentioned in the Clause “B” of the second schedule of the possession certificate. When the OP requested the complainants to pay the cost of extra 30 sq. ft. area of parking space, the complainants neither made any response nor paid any cost for the extra 30 sq. ft. for the parking space. So, it is very much clear that the complainants have not come before this Ld. Forum with clean hands and there is no question of deficiency of service and unfair trade practice on the part of this OP. This OP further submits it is evident from the documents filed by the complainants in its petition complaint that the owner executed a power of attorney in favour of the developer on 15.6.2012 though the sanction plan has been obtained by the owner on 01.4.2011. The owner caused delay for more than 14 months to execute the power of attorney in favour of the developer. That subsequent certain errors have been found in the developer’s agreement and the general power of attorney and ultimately a deed of declaration was executed by the complainants on 12.9.2012. Due to defect, the power of attorney, as well as, delay in execution of power of attorney from the side of the complainants, the complainants were delivered the flat on May, 2013. As per complainants’ statement the OP is under obligation to hand over the possession of the flat on or within 30.9.2012 but the complainants violated the terms and condition of the agreement and caused delay in non-executing and registration of power of attorney. The defect has been finally rectified from the agreement and the power on 12.9.2013. Due to delay of 14 months of execution of power of attorney this OP was put in a big trouble and this OP –developer legally could not enter into an agreement for an intending purchaser and could not collect money from the intending purchaser showing his legal authority. Consequently due to paucity of fund construction has been delayed because of non-execution and registration of power of attorney immediate after the developer’s agreement. It is also be noted that there was no residential house in the plot because the said plot is a vacant land. This OP further stated that the complainants live in rented house for last 50 years @Rs. 345/- per month which would be evident from the document of Rent Control. Complainants have stated that they have to pay rent to the tune of Rs. 8,000/- per month from September, 2012 to May, 2014 and for 8 days of June, 2014 and claimed Rs. 1,72,000=00 due to deficiency in service on the part of this OP is totally false and the real picture is that the complainants are the tenants of premises situated in the district of Burdwan, sub-divisional Office at Asansol under P.S. Kulti, Mouza Neamatpur, C.S. Plot No. 46, within Ward No. 2 at Ghanty Goli paying rent @Rs. 345/- per month on & from 21.09.2010 till date before the Rent Control Office at Asansol vide H.R.C. Case No. 452 of 2010 as per order of Rent Controller at Asansol dated 21.9.2010. So it is very much clear that the complainants have intentionally misled this Forum by taking false representation in his written complaint just to misguide this Forum as well as to harass this OP. So, the petition filed by the complainants is liable to rejected in limine with compensatory cost.
The OP has filed documents like, Xerox copy of Development Agreement or Construction Agreement and General Power of Attorney dated 12.6.2012, Xerox copy of Deed of Declaration dated 12.9.2012 and Xerox copy of application u/S. 12 of the W.B. Premises Tenancy Act filed by the complainant before the Rent Controller at Asansol along with order dated 21.9.2010.
-: Decision with reasons :-
On going through the statements records, documents filed by the parties and heard argument it is in admission position that the complainants entered into an agreement with the OP on 14.3.2011to procure a flat in their land, the OP will give 925 sq. ft. carpet area in the second floor (front facing) with one car parking space, the complainants will execute a General Power of Attorney separately in favour of the OP, the OP will hand over the said flat to the complainants within a period of 18 months on and from the date of approval of the plan by the Kulti Municipality, any extra work in the flat concerned will be done mutually with the complainants and the Op and the extra cost will be paid by the complainants. The allegation of the complainants is that as the Op has failed to provide them the flat as per agreement, they have to pay Rs. 8,000=00 as rent to their landlord and for which they have to pay Rs. 1, 72,000=00 in total for the said delayed period. For such deficiency in service on the part of the OP, the complainants have claimed the said amount paid by them as rent along with compensation and litigation cost. On the other hand, the case of the Op is that during the construction work the complainants were interfering in the construction work and each and every time they were giving instruction to this OP to make some extra works according to their desire and so further times were taken to complete the extra work. The OP handed over the possession of the said flat on 21.3.2014 and the complainant took the possession with full and final satisfaction on the same date.
Regarding delay in handing over the possession of the questioned flat it has been found from the records as available that an agreement was signed between the parties on 14.3.2011 to procure a flat in exchange of the land of the complainants. Thereafter the owner obtained the sanction plan on 01.4.2011 by the Kulti Municipality. It has been found from the record that the Power of Attorney was executed in favour of the developer on 15.6.2012. But as there was some error in the General Power of Attorney so a deed of declaration was executed by the complainants on 12.9.2012. As per terms and conditions of the agreement dated 14.3.2011 the OP was under obligation to deliver the possession of the flat on or within 30.9.2012, i.e. within 18 months from the date of plan sanction by the Kulti Municipality. But the complainants have delayed in executing the power of attorney to the developer/OP and it was executed on 15.6.2012, which is nearly 14 months delay from the date of sanctioned building plan by the Kulti Municipality. Finally the defect free power of attorney has been executed through a Registered Deed of Declaration on 12.9.2012. For such delay and non-availability of Power of Attorney the developer/OP was not in a position enter into an agreement for an intending purchaser showing his legal authority to collect the money.
Due to non-delivering the questioned flat within stipulated period the complainants have prayed for giving direction the OP to pay a sum of Rs. 1,72,000=00. To justify such prayer the complainants have stated in their petition of complaint that though the completion certificate was issued by the Kulti Municipality on 24.9.2013 but the OP executed registration of Possession Certificate on 21.3.2014 but actually the possession was given on 09.6.2014. So the complainants have to pay Rs. 8,000=00 as rent for the month September, 2012 to May, 2014 and the for 8 days of June. But in support of such claim and prayer the complainants have neither submitted any document from the side of the landlord nor any money receipt showing payment of rent @Rs. 8,000=00 per month on their behalf. On the other hand, the Op has filed one document from where it is found that the complainant No. 1 filed an application u/S. 21 of W.B.P.T. Act before the Rent Controller at Asansol by stating that he is a tenant at a monthly rent of Rs. 345/- in respect of “A premises/house in the District of Burdwan, Sub-Division Asansol under P.S. Kulti, Mouza Neamatpur, C.S. Plot No. 46within Ward No. 2 at Ghanty Goli consisting of 3 (three) Bedrooms, one verandah, one kitchen, one bathroom and court-yard.” Therefore, we are of the view the complainants have miserably failed to substantiate their claim of Rs. 1, 72,000=00 paid by them as rent for delay in delivering the questioned flat within the stipulated period. As the complainants have failed to establish their prayer no. (i) in the petition of complaint as claimed against the OP, they are also not entitled to get any compensation and litigation cost, in any way. Hence, it is
O r d e r e d
that the petition of complaint filed by the complainants is hereby dismissed on contest. However, considering the facts and circumstances of the case there is no order as to costs.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Durga Sankar Das)
Member
DCDRF, Burdwan
(Silpi Majumder) (Durga Sankar Das)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
