JUDGEMENT

          Complainant by filing this complaint has submitted that through a paper advertisement came to know that the op no.1 is willing to start a project at Barasat and for which they are inviting intending purchasers to purchase flats for residential purposes and finding the said lucrative offer he approached the op no.1 at their project office situated at 7, Red Cross Place, 4^th Floor, Kolkata – 700001 and after having a long discussions he paid the op, giving all proposal for giving him certain relief and accordingly complainant decided to purchase one self contained two room flat measuring about 347 Sq. Ft which was estimated at total consideration of Rs.1,92,000/- to be paid by equal installments over a period of 60 months less Rs.5,000/- which was to be paid at the time of signing of the application for allotment in favour of the complainant and another Rs.15,000/- at the time of allotment is made in his favour and another Rs.25,000/- to be paid only on getting possession of the said flat and the remaining amount of Rs.1,47,000/- is to be paid by 60 installments.

          Thereafter on 06.10.2004 as per letter of the Managing Director of the op, he collected his allotment certificate from the op and complainant was asked to deposit allotment amount within 30 days from the date of the said notice and to pay the monthly installment which would start from November, 2004 and is payable within 10^th of every month.  Practically certificate of allotment was issued on 11.10.2004 duly signed by the parties by which he was allotted an apartment having two rooms measuring about 347 sq. ft. and at that time complainant was approached by the op for a new proposal by which they offered him a extra space of 39 sq. ft. for which complainant had to bear an additional cost of Rs.21,600/- by way of monthly 60 installments or Rs.1,800/- for Tatkal that is 12 installments or make an ad-hoc payment of Rs.20,736/- after a deduction of 4% discount.

          Complainant was in need of such extra space and agreed to the said proposal and opted for making payment of an extra sum of Rs.360/- per month for a normal 60 installments and as per consent of the complainant, op issued a letter dated 24.12.2004 containing the said proposal as narrated.

          Fact remains that complainant already issued post dated cheques to the ops being 12 in number each amounting to Rs.2,450/- being the initial installments against the said flat measuring 347 sq. ft.  However since the complainant accepted the offer by which there was an increase in the measurement of his flat by 39 sq. ft. and he had to pay an extra amount of Rs.360/- over the initial rate of Rs.2,450/- by which his new rate of installments became enhanced to Rs.2,810/- per month.

          Fact remains that complainant was making payments of the said enhanced rate till 09.04.2005 when the complainant further was offered with an extension area of space measuring about 25 sq. ft. by which the new size of the said flat became 411 sq. ft. and however for which the complainant had to incur an additional expenditure of [Rs.(3,042 – 2810) x 60 = Rs.13,920/-] and by virtue of which his new EMI would be enhanced from Rs.2,810/- to Rs.3,042/- and complainant agreed and wrote a letter dated 09.04.2005 by which he requested for approval of the extra sq. ft. from the ops and such approval was duly given by the ops by a letter dated 13.04.2005 affirming that the new measurement of the complainant said flat would be 411 sq. ft. and for which his new rate of EMI, would be Rs.3,042/- per month and the letter further contained that the said allotment certificate of the complainant would be accordingly changed and/or modified to incorporate this new changes.

          Though the op assured the complainant that his certificate would be accordingly changed and the change was made in April, 2005 and fact remains in respect of that there has been constant changes in the measurement of the said flat as well as in the rate of the said EMI’s the complainant has never defaulted in making payments towards the said installments and there has been not a single instance over this entire tenure of payment  wherein the ops have got an an opportunity to dispute the payment made by the complainant and that would be reflected from the individual customer payment report.

          Further complainant submitted that he has made total payment of Rs.2,02,500/- and balance is Rs.25,000/- out of the total consideration price as fixed by the ops against the purchase of the said flat and the amount of Rs.25,000/- is to be paid by the complainant at time of handing over of the possession of the said flat by the ops and it is pertinent to mention here that complainant was and is always willing to make the said payment of Rs.25,000/- as soon as he gets possession of the said flat and the payment receipts, vouchers was revealed that all installments are cleared up to 60^th installments amounting to Rs.1,82,500/- and complainant had already paid Rs.5,000/- at the time of making of the application and Rs.15,000/- at the time of allotment of the said flat in favour of the complainant. Though there are no more dues in respect of that Rs.25,000/- and the entire payment for the stipulated period of 5 years ended on 06.10.2009 and complainant deposited the cash of Rs.6,064/- and subsequently ‘no due certificate’  was issued by the ops but they did not bother to hand over the said flat after completing the same to the complainant and further the op did not take any step towards expediting the completion of the said flat and did not express any willingness to receive balance amount of Rs.25,000/- at the time of taking possession and no possession has been made as yet.

          In the circumstances, in the meantime op issued letters dated 15.07.2008 intimating that complainant in order to get electric connection to the said project it needs to construct a sub-station within the complex for which each of the alloties/flat owners shall have to pay towards the infrastructure development and security deposit and the present complainant being the owner of a two rooms apartment was liable to pay an amount of Rs.21,500/- towards the said charges and vide another letter dated 21.08.2008, 11.11.2008 and lastly on 15.06.2011 op again made the purported illegal demand of Rs.21,500/- from the complainant as his share towards the cost of sub-station and security deposit for individual meter.

          In the above situation, complainant has submitted that at the time of issuing the allotment certificates the ops never uttered a single words regarding this additional payment for construction of sub-station etc. and that demand was neither contemplated nor it was previously intimated to the complainant and as such the demand is absolutely arbitrary and whimsical and that complainant was not bound to make such payment and such demand was absolutely a new inclusion into the said agreement or terms and conditions for which the complaint reported the matter to the ops intimating that his claim is completely against the agreement and when complainant has paid the entire EMI’s, the ops are bound to execute the deed of sale by handing over the possession but on repeated persuasion and visited the registered office of the op and op did not hand over the same and has not executed any deed of sale for which complainant prayed for relief for adopting unfair trade practice and causing harassment.

          On the other hand op by filing written statement submitted that fact remains that WBSEDCL raised demand for land and cost for setting up the required sub-station at the project, hence the said cost was divided amongst flat owners proportionately which includes the proportionate cost of electric meter and individual security deposit and ops raised the said demand to the flat owners of the project including the complainant but complainant failed to pay the said amount, for the reasons, not known to the ops.  Further op submitted that there was no willful laches or negligence on the part of the ops for the construction including the relevant building but it delayed due to restriction imposed by Barasat Municipality and West Bengal Pollution Control Board in course of the construction, furthermore the ops left no stone unturned to build a stable building according to stipulated building code enacted by statute.

          But for that complainant has already been notified by the ops that the flat in question is ready for possession and asked complainant to take possession of the same by making due payments but the complainant failed and neglected to do so.  Though the said letter was received by the complainant on 20.03.2013 and that letter simply speaks the reason of the payment for what purpose but other allegations are false and fabricated and in the meantime other flat owners received the same by such payment by paying such amount as required which was reported and informed by sending a letter dated 20.03.2013. 

          So, in the circumstances, the case should be dismissed and necessary case should be awarded against the complainant.

                                                 Decision with reasons

          After thorough study of the complaint and written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and further hearing the complainant personally by this Forum and further after evaluation of the documents, it is clear that it is undisputed fact that complainant has paid 60 EMI’s already and it is also fact that it was paid by the complainant by 24.01.2010 and clearance certificate was issued by the op stating that “installment clear no more dues”. 

          But as per terms and conditions of the allotment against clause, it is specifically mentioned that intending allotees agree that allotment of the apartment is subject to the force mageure clause and in this case op has tried to say that practically after completion of the said building one after another problem was faced by the op, one was made by WBSEDCL for construction of sub-station for giving electric connection to the project.  Another was made by Barasat Municipality for some reasons and lastly West Bengal Pollution Control Board also sent a letter for clearance for the project and considering the documents as filed by the op along with evidence i.e. letter of the WBSEDCL dated 05.03.2009, 13.06.2009 thereafter the letter of Municipality of Barasat dated 09.08.2010 and also the letter of Pollution Control Board it is found that after completion of the project several complications were faced by the op to complete the entire project and fact remains ultimately complainant got clearance, clearance from Pollution Control Board, thereafter WBSEDCL constructed an electric sub-station for supplying electricity to the project.

          Fact remains that for construction of the sub-station West Bengal State Electricity Distribution Company Limited (WBSEDCL) huge amount was paid by the ops and without said construction, there was no scope on the part of the ops to supply electric connection to all the flat owners of the project and for which no doubt op was unable to handover the possession and it is settled principal of law that possession must be handed over to the flat owners when all amenities and avenues are completed for enjoying the said flat by the flat owners after taking possession and in this regard we have gathered that there was no fault on the part of the op to hand over possession at belated stage because as per agreement, parties agreed that the allotment of the apartment may be delayed for the force Mageure clause and in the present case, it is no doubt a Force Mageure clause and for which op cannot be condemned or cannot be treated as a merchant who adopted any unfair trade practice.

          Fact remains that op reported the matter to all the flat owners that it was not possible for any individual flat owners to arrange electric connection and it was the liability of the op to arrange the same and for which op was compelled to pay huge amount to the WBSEDCL.  So, for construction of electric sub-station and for supply of electric to different flats with separate meters all the flat owners were reported to pay such amount as per area and in case of two rooms apartment it was Rs.21,500/-, in respect of one room apartment Rs.12,900/-, in respect of 3 room apartment Rs.32,500/- and in respect of 4 room apartment Rs.37,500/-.  But complainant has challenged that claim of Rs.21,500/- for construction of the sub-station and for supplying electricity with separate meter to the complainant and complainant’s claim is that it is beyond the agreement.  But after hearing the complainant personally we have come to learn that his sister also has paid said amount and already got the flat and other flat owners also already took possession by paying such amount as proportionate amount as per letter of the op for getting electric connection and other flat owners are enjoying such electric with separate meter and their deeds had already been executed by the ops.  But only the complainant is the exception who has challenged that claim of the ops and appeared before this Forum and prayed for redressal. 

So, it is clear after proper assessment of the entire materials on record and we are confirmed that complainant is not willing to pay Rs.21,500/- as his share for construction of sub-station and supply of electricity and Rs.4,992/- for one year annual maintenance etc and also he is not willing to pay service tax @ 3.09%.  but anyhow after giving our anxious thought in this regard and also considering the pros and cons in respect of the entire project and also other complications as faced by the op after completion of the project for raising different complications raised by WBSEDCL, Pollution Control Board and also by the Barasat Municipality no doubt in such circumstances it was not really possible for the op to hand over such a incomplete flat to the flat owners and after proper evaluation of the materials on record, it is clear that op tried to hand over any complication free flat with separate electricity meter and supplied the electric to the flat owners and their attempt was no doubt thankful in all respect.

But fact remains due to such complications certain amount was increased for electricity and etc.  But fact remains as per agreement about electricity complainant is silent.  So, invariably complainant for construction of sub-station and for getting electricity with separate meter is liable to pay Rs.21,500/- as his share when flat owners had paid it and have been enjoying the flat happily including the sister of the complainant.

Anyhow we have failed to understand for what reason complainant is so arrogant when the valuation of such flat in the present market would be about Rs. 15/16 lakhs whereas complainant has got it by paying meagre amount of Rs.2 lakhs and odd.  Though his flat consists of two bed rooms, kitchen etc, then it is clear that there is some wrong conception of the complainant for which complainant appeared before this Forum and prayed for redressal.

In the above situation we find that complainant must have to pay balance amount and also Rs.21,500/- for electricity without any fail to the op and op shall have to hand over the possession and at the time of taking possession, complainant shall have to pay service tax @ 3.09% on proper receipt.  But about one year annual maintenance of cost of Rs.4,992/-, we find that annual maintenance cost of Rs.4,992/- should not be paid by the complainant in view of the fact that complainant did not give possession, then how the op can pay Rs.4,992/- as annual maintenance because it is the settled principal of law that annual maintenance charge can only be paid by any flat owner who has got possession of such flat with all amenities and avenues.  But as because op to this stage complainant has not got the possession of the flat, so annual maintenance cost of Rs.4,992/- cannot be claimed by the ops and to that extent invariably complainant is entitled to get such relief for not to pay that amount of Rs.4,992/- to the op and op cannot claim it.

Accordingly we allow this complaint with such order against the ops.

Hence, it is

                                                    ORDERED

That the complaint be and the same is allowed on contest against the ops with a cost of Rs.3,000/-.

Ops are hereby directed to hand over the possession of the flat as described in the allotment letter to the complainant after receiving balance amount of Rs.25,000/- and further amount of Rs.21,500/- for electricity and also service tax @ 3.09% from the complainant and after that hand over possession by issuing a possession certificate duly signed by both the parties and thereafter ops shall have to execute the sale deed (as deed of conveyance) finally in favour of the complainant within two months from the date of this order and if ops fail to comply order within that period, if complainant pays such amount as already ordered in that case op shall have to pay punitive damages @ Rs.300/- per day till full satisfaction of the decree and even then if it is found that ops are reluctant to comply the order of this Forum in that case ops shall be prosecuted u/s

27 of C.P. Act 1986 and for which further penalty of Rs.10,000/- each shall be imposed and even for reluctant attitude of the op, further penal action shall be taken.