Date of filing: 14.03.2017 Date of disposal: 18.07.2019
Complainant: 1. Parthasarathi Chakraborty, S/o. Late Chintaharan Chakraborty.
2. Kalyani Chakraborty, W/o. Parthasarathi Chakraborty, resident of Flat No. 3A, 3rd Floor, Arrah Sree Palli, Arrah, PO: Durgapur, District: Burdwan, Pin – 713 212.
- V E R S U S -
Opposite Party: 1. Green House Project, represented by its partner, having its office at Village: Pursha, Durgapur, Police Station: Durgapur, District: Burdwan, Pin – 713 207.
2. Sri Atik Dutta, partner of Green House Project, having his residence at 13/09, Vidyapati Road, Durgapur, District: Burdwan, Pin – 713 205.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant (s): Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party Nos. 1 &2: Ld. Advocate, Subrata Ghosh, Rumania Bagchi Ghosh & Debdas Rudra.
J U D G E M E N T
This complaint is filed by the complainants under Section 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops did not pay interest for delivering the residential flat after stipulated time and for delivering incomplete flat.
The case of the complainants is that being intended to purchase one flat for residential purpose they contacted with the Ops and came to learn that the Ops wanted to sale flats and would give possession within 24 months from the date of agreement. The complainants after learning about the consideration amount of the flat agreed to purchase the same and one agreement to sale was executed between the complainants, the landowner and the Ops on 31.07.2012 signed agreement and booking amount of Rs. 49,720=00 was paid on 04.02.2012 by the complainants.
The further case of the complainants is that as per agreement clause no. 5 the Ops shall give possession of the flat within 24 months i.e. on 30.07.2014 from the date of agreement i.e. on 31.07.2012. It is important to mention that there was a grace period of 4 months. On the other hand as per clause no. 14 of the agreement the Ops will be bound to pay interest @12% p.a. to the purchasers/complainants in the event of failure to handover the possession of the flat within a period of 24 months from the date of agreement.
The complainants further allege that as per agreement the Ops were bound to handover the possession of the scheduled flat to the complainant and execute the sale deed within 30.07.2014 but the Ops were very much reluctant to finish the construction work of the flat and also reluctant to hand over the same. After several requests the Ops after one year from the scheduled date executed the sale deed of the scheduled flat on 29.07.2015 and handover the possession of the flat on 20.10.2015, i.e., after three months of execution of the sale deed. After taking possession of the flat the complainants for several times requested the Ops for payment of interest @12% on the sale value i.e. Rs. 13, 12,500=00 from 30.07.2014 to 20.10.2015 as there is provision in the agreement.
The complainants further allege that after taking possession of the scheduled flat came to learn that there are several incomplete works in the said flat such as, (1) in the balcony tiles has been dislocated, (2) windows and doors are in damaged condition and (3) at the time of raining water leakage from the windows etc. As such the complainants for several times requested the Ops for completion of the incomplete works but they did not pay any hued to such requests. Thereafter finding no other alternative, the complainants knocked the door of Consumer AFFAIRS Department, Durgapur but failed to get any relief. These conducts of the Ops are deficiency in service and unfair trade practice and for those acts they are liable to compensate the complainant. The complainants have prayed for directing the OPs to pay Rs. 1, 96,875=00 (@12% p.a. upon Rs. 13,12,500=00 from 30.07.2014 to 20.10.2015) to the complainants by holding them liable for their conducts of deficiency in service and unfair trade practice, directing the Ops to complete the incomplete portion of the flat and directing the Ops to pay Rs. 3,00,000=00 to the complainant as compensation for mental pain and agony and harassment and Rs. 20,000=00 as litigation cost.
The complaint is contested by the Ops by filing written version on their behalf denying all the material allegations made by the complainants in the petition of complaint.
The case of the Ops is that the complainants expressed their desire to purchase a flat being No. 3A on the third floor excluding parking space at a total price of Rs. 13.12.500=00 and duly filled up the booking form and paid Rs. 51,000=00 towards booking money before the Ops for the said flat.
The case of the Ops is that the Agreement to Sale was executed between the p[arties on 31.07.2012 and as per agreement the Ops shall give possession of the said unit within 24 months from the date of agreement with grace period of 4 months. Moreover it has been categorically stated in clause No. 13 of the Agreement that the Ops shall not incur any liability if they are unable to deliver the possession of the flat within the period of 24 months, if the completion of the said building is delayed due to non-availability of cement, steel, civil commotion, riot or any act of God or account of any notice, order, rule of notification of the Government and/or public body or authority or on account of any order of any Court affecting the construction work of the building by way of injunction or by way of restrain. Though the Ops already completed the construction of the said building within the period of 24 months from the date of Agreement, but due to delay payment from the side of the complainants some more times have been taken to complete the entire construction of the said building.
The further case of the Ops is that the complainants paid the last premium amounting to Rs,. 1,35,844=00 vide cheque No. 301676 dated 21.07.2015 drawn on Yes Bank and after getting the consideration money the Sale Seed was executed and registered before ADSR, Durgapur on 30.07.2015 and became the owners of the flat and have possessed the same for their residential purpose. The Ops issued a possession certificate on 20.10.2015 after receiving the full consideration money and thereafter the complainants have been living peacefully as well as possessing the same. So, it is very much clear that there is no deficiency in service and unfair trade practice on the part of the Ops. Moreover, the complainants after getting possession of the flat and being fully satisfied, expressed their desire to purchase a car parking space and the Ops delivered the car parking space of 120 sq. ft. at the total consideration money of Rs. 2,00,000=00 and a registered Sale Deed was executed vide Deed No. I-020602749 registered before the ADSR, Durgapur on 10.05.2016. So it is very much clear that the complainants were very much satisfied with the service provided by the Ops. If the complainants have any allegation against the Ops, they might lodge said complaint before or at the time of registration of deed of parking space. But till date or registration of parking space, not a single complaint was lodged from the side of the complainants. The Ops tried their level best to deliver the possession of the said flat to the complainants as early as possible as per agreement, but the complainants failed to pay the consideration money under installments mentioned in the agreement within due date and inspite of several requests by the Ops the complainants have paid the consideration money after due date. So the delay of taking delivery of the flat was caused from the side of the complainants, not from the side of the Ops.
The further case of the Ops is that the before taking delivery of the flat, the complainants physically inspected the flat on 13.07.2015 and being full and final satisfaction they took delivery of the said flat and filled up the inspection form and complainant No. 1 put his respective signature. The complainants took one key for their flat from the Ops on 27.08.2015. It is also to be noted that another sale deed was executed in favour of another purchaser on 5th floor of the building which was registered before the ADSR, Durgapur on 21.01.2015 vide Deed No. I-295. So it is very much clear that the entire construction of the building was completed within due date as per agreement. So it is evident that there was no efficiency in service and unfair trade practice on the part of the Ops. So, the allegation made by the complainants against the Ops is completely baseless and as such the complaint petition filed by the complainants is liable to be rejected with compensatory cost.
In this case the complainant filed his evidence-on-affidavit stating the fact which he has already stated in his petition of complaint. OP did not file any evidence but his written version is supported by affidavit wherein he has stated his defence case. Complainant did not file any questionnaire nor did the OP file any questionnaire to the complainant. Thereafter argument was heard at length from both sides.
At the time of hearing argument ld. Lawyer for the complainant submitted that he has filed the copy of agreement of sale wherein the booking amount Rs. 51,000=00 was paid by him. In para 6 & 7 of the complaint petition the complainant has stated specifically that within 24 months the possession will be given after full payment and 4 months grace period was also allowed but with interest of 12% to the total consideration amount if not possession is given within time. Complainant admits that he was delayed in making payment on two to three occasions but possession was given after about two years of making payment. Therefore he filed this case praying for compensation for such delayed possession @ 12% per annum on the total consideration amount of Rs. 13, 12,500=00. Period of delay calculated from 30.07.2014 to 21.10.2015. Therefore, the complainant alleges deficiency in service and unfair trade practice. Complainant prayed for compensation for mental harassment Rs. 3, 00,000=00 and also litigation cost of Rs. 20,000=00.
At the time of hearing argument ld. Lawyer for the OP specifically submits by citing documents that there was no incomplete construction and possession was given in such incomplete stage as alleged by complainant is not true. However, complainant failed to prove this fact by sufficient evidence. The agreement was signed on 31.07.2012 with four months grace period as per clause 13 of the agreement but nowhere in the complaint the complainant ever stated that he made last payment on 21.07.2015 of Rs. 1,35,844=00 i.e. more than 24 months of such agreement dated 31.07.2012. After receiving full payment possession certificate was soon handover on 20.10.2015 and registration was completed on 10.05.2016. Therefore there is no deficiency in service on the part of the OP. He cited documents showing such receipt of payment dated 21.07.2015 of Rs. 1,35,844=00, even on 12.09.2014 a delayed payment of installment Rs. 67,663=00 was paid by the complainant after the stipulated period of 24 months. The receipt showing such payment is filed. Before taking possession a preliminary inspection was done by the complainant and to that effect a pre-delivery inspection document is filed. Wherein as per complaint, the complainant alleged regarding some construction deficiency in bathroom, bed room, shelf, bathroom floor etc. were pointed out and it was found on the date of pre-delivery inspection that all those defects were removed and complainant signed with remark that he is fully satisfied with the construction work and the said document is also filed, dated 13.07.2015. The possession certificate was given on 20.10.2015 and received by the complainant on 21.10.2015 without any objection. Therefore, the complainant cannot again claim for any incomplete construction in this case as alleged. We do not find any such delay in giving possession certificate. In this context OP filed documents sale deed registration on 20.042015 and 21.01.2015 of other two flat owners in this apartment. From the documents it appear that other occupants of the flat were given possession within stipulated period in the year 2015 and therefore there was no question of incomplete construction of the building. Another startling fact is that a parking space was also purchased by the complainant by another sale deed dated 10.05.2016 and being satisfied with the construction the said deed was executed and possession was handed over for the parking area to the complainant after accepting full consideration money by the OP. The OP therefore argues that if there was any deficiency in service then why the matter was not raised at the time of pre-delivery inspection and immediately after taking possession of the flat by the complainant. So the OP argues that the allegation of the complainant is not genuine. From the demand notice of the OP cited in this case, it is also proved that complainant did not make payment as per agreement and there was delay in making payment and last stage of payment of Rs. 1,35,844=00 was made on 21.07.2015. After accepting the full payment on 21.07.2015, within nine days, the registration of the flat was completed in favour of the complainant. The deed of registration is also filed to prove this fact. From the payment receipts dated 27.08.2014 it appears that for inside plaster of the flat Rs. 67,653=00 was paid by the complainant. It is also proved by the OP that a sale deed was executed on 21.01.2015 in favour of the other occupants of the said apartment Flat No. 5-D at 5th Floor to prove that construction was complete in the year 2015. At the time of argument ld. Lawyer for the OP further submitted that if there was any deficiency in service complainant should have make his complaint to the appropriate forum immediately after taking possession and from the payment schedule of the complainant goes to show that he was not a regular pay master and last payment was made on 21.07.2015 wherein the agreement was executed on 31.07.2012 for making payment within 24 months with four months further grace period. The pre-delivery inspection is also satisfactory without any allegation. Therefore question of deficiency in service is not proved by the complainant. In such circumstances the complainant cannot claim for compensation @12% per annum after getting possession of the flat within stipulated period i.e. within 30.07.2014 as per Agreement, while his last payment is made on 21.07.2015, more than one year after stipulated period. On perusal of the documents filed by the parties and after hearing argument of both sides, we find that complainant is not able to prove his case that Ops were deficient in service by not giving possession of the flat in question after receiving full payment and within stipulated period. As a result the complaint fails.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 42/2017 be and the same is dismissed on contest without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) DCDRF, Purba Bardhaman
President
DCDRF, Purba Bardhaman
(Nivedita Ghosh)
Member
DCDRF, Purba Bardhaman
