JUDGEMENT

          Complainant by filing this complaint has submitted that an intended purchaser of flat, he booked a small flat from the op measuring about 391 sq. ft. super built up area, having allotment Registration No. A-3187 dated 19.06.2010 and the flat No.33/606, total cost of flat is Rs.4,44,480/- and complainant paid Rs.25,000/- on 19.06.2010 being application money and also paid Rs.3,21,670/- and also paid Rs.97,808/- or 22% plus cost of Roof Rs.90,000/- is due and payable to the op and the possession of the flat was scheduled to be given to complainant by 3 years i.e. on 19.06.2013 but no possession has not yet been given to the complainant.

          Further complainant booked another small flat No.33/607 from the op lying at Larica Township having Allotment Registration No. is A-3194 dated 16.09.2010 and measuring 416 sq. ft. super built up area and total cost of the flat is Rs.4,73,338/- and complainant paid Rs.71,000/- on 16.09.2010 leaving balance amount of Rs.4,02,338/- to be paid by the Bank Loan.  Possession of flat was to be given by 3 years i.e. by 19.06.2013.

          As because complainant for that purpose prayed for Bank Loan, but banking authority refused to grant loan to the complainant on the ground that the possession would be given in the month of September-2013.  But op refused to accept part payment and insisted complainant to make one time payment. On 08.07.2011 one Mr. Bhowmick Babu, an executive staff of the op misbehaved with the complainant and forced the complainant to leave the office and op deliberately suspended the complainant’s account lying with op in the computer and for which complainant’s cheque being No.937815 dated 08.07.2011 drawn on SBI, Kolkata Main Branch for a sum of Rs.1,10,000/- was not accepted.

          On 08.07.2011complainant served letter requesting op to get flats ready with lift, electricity, the entrance path and also requested to register the Deed of Conveyance by August 2011 after receiving due full payment.  But op did not care to give the reply.  Thereafter complainant sent Advocate’s letter to the op on 25.08.2011 and 16.01.2012  by registered post requesting for completion of the pending work and accept of balance amount and to register the Sale Deed of the flat but the op did not take necessary step to complete the flat but remained silent over the issue.

          Further complainant vide leter dated 14.04.2012 intimated to the op the defects of the flats like wet roof, non-colouring of the Block No.33, absence of entrance path for entering the building, particularly non installation electric meter despite receiving Rs.43,000/- by the op for installation of electric meter in flat No.33/606.  On 06.04.2012 complainant along with Sri Prabir Raha, Caretaker of the op made a casual inspection of the flats and found that the aforesaid defects.  Complainant requested the op to remove and or to rectify the defects and to register the Deed of Conveyance.  The said letter was received by the op but no positive steps had been taken by the op to remove or rectify the defects.

          Thereafter 3 letters dated 15.01.2013, 10.04.2013 and 13.07.2013 were sent to the op despite receiving those letters op was deliberately sitting tight over the matter regarding compliance of the legitimate demand of complainant.  Subsequently complainant attempted to make payment on 30.04.2013 and again on 13.07.2013 after receiving the possession intimation letter.  But op has claimed interest @ 18% p.a. plus one year advance maintenance charge and complainant is now posted at Dhanbad and naturally it is not possible to visit the office of the op and practically after receiving of two letters dated 17.07.2013 and 18.07.2013 from the op intimating cancellation of allotment of flat No.33/606 and 33/607.  Complainant sent Advocate’s letter on 30.07.2013 demanding the cancellation and challenge their same because fact and circumstances right from the beginning of the execution of the agreement would show that the complainant has not done anything as per contract between the complainant and the op.  but op did not comply the same and for which there was no valid ground for cancellation of the agreement.  So, ultimately op sent letter on 03.08.2013 in which op has denied the contention that op has committed wrong and or has put complainant into hardship as claimed by the complainant and in fact for the laches and deficiency and negligence on the part of the op, the matter has been dragged and though complainant was willing and ready to pay the balance amount but op arbitrarily cancelled the said agreement.  But same is illegal and for which complainant has prayed for redressal before this Forum for arrangement of registration of Sale Deed and for handing over the possession after accepting the balance amount.

          On the other hand op by filing written statement submitted that the entire allegation is false.  Truth is that as per agreement complainant shall have to pay the entire amount within 2 months from the date of agreement in respect of flat No.33/606 and 33/607 and flat value including roof value of flat No.33/606 is Rs.5,34,480/- whereas in respect of Flat No. is Rs.4,73,338/-.  But in fact till date complainant has paid Rs.3,46,672/-  in respect of Flat no.33/606 and only Rs.71,000/- in respect of Flat No.33/607.

          So complainant is bound to pay when the amount of Rs.1,87,108/- in respect of Flat No. 33/606 and Rs.4,02,338/- in respect of Flat No.33/607.  Moreover over that amount 18% p.a. interest shall be assessed as late fine.  So, late fines are Rs.84,514/- and Rs.1,81,052/-.  So total due is Rs.8,55,712/- and complainant only to avoid such payment and he has not accepted to pay the sum and he has submitted the false allegation by stating everything.

          Fact remains complainant was informed earlier for taking possession.  But complainant did not comply.  More than 1000 flat owners entered into the flat and have been residing there peacefully, but complainant and some other persons are avoiding to pay and fact remains they failed to get bank loan from the bank and for which they are not willing to pay and when the complainant was served a notice for taking possession after collecting dues, they did not comply it and when the op cancelled the said agreement.  But even then op in his written statement has submitted that they are willing to execute the Sale Deed and deliver the possession if complainant shall clear all the dues, but otherwise the entire complaint is false and fabricated and there was no laches on the part of the op and for which the present complaint should be dismissed.

                                                     Decision with reasons

          On in depth study of the complaint and written version and also relying upon the argument as advanced by the Ld. Lawyers of both the parties and further on evaluation of the agreement including other documents as filed by the parties, it is clear that complainant booked two flats of the LARICA ESTATES at Barasat having Flat No.33/606 and 33/607 and undisputed fact is that flat values along with roof right in respect of Flat No.33/606 is Rs.5,34,480/-.  But complainant has paid Rs.3,46,672/-, so, balance due is Rs.1,87,808/- and similarly in respect of Flat No.33/607, flat values with roof right is Rs.4,73,338/- and complainant has paid Rs.71,000/- and balance due is Rs.4,02,338/-.

          It is admitted fact that as per agreement, possession would be given within 3 years from the date of execution of the agreement and practically in respect of Flat No.33/606, agreement was executed on 23.06.2010 and in respect of Flat No.33/607 agreement was executed on 04.10.2010 and as per agreement possession shall be delivered after 3 years i.e. actual possession shall be delivered in the month of September-2013.

          But from the complaint, it is found that in the month of September-2013 this complaint was filed and date of filing of the complaint is on 16.09.2013.  So, it is clear that there was some bad intention of the complainant and he did not wait till September-2013 for taking delivery of possession and before that he filed this case.  Anyhow after considering the agreement, it is clear that possession shall be delivered subject to full clearance of the arrear dues.  But complainant has failed to show up any cogent documents that he cleared all the dues in respect of both the flats before September-2013.

          On the contrary from his own version for the complaint, it is clear that he attempted to collect loan from the bank but bank authority refused it for which he failed to pay the balance amount.

          Another factor is that a particular person, the present complainant booked 6 flats and from our own record it is found that this complainant previously filed another complaint being No.CC. 240/2013 against the present op for another flat being No.33/602 and in which he got decree but no such compensation and in the present case it is found that complainant as consumer booked 6 flats.  But as per provision of law that for domestic purpose one or two flats may be treated as consumer for own use but 6 flats would be treated as domestic use for the consumer.  Considering that fact we find that after getting decree in CC No.240/2013 for Flat No.33/602 further complainant cannot claim his right as domestic consumer in respect of two other flats.

          Further from the said record (CC No.240/2013), it is found that complainant in the previous occasion also failed to pay balance amount for which possession could not be delivered and fact remains after considering that copy of juegement from our record, it is clear that complainant is a habitual defaulter in payment of balance dues because he at a time booked 6 flats in his name and along with his wife, son etc. in same complex at different flat numbers.  So considering all the above fact and present fact and circumstances we have gathered that no doubt complainant unable to pay the balance amount showing the circumstances no doubt the op sent him letter to take possession after collecting balance amount but complainant failed to do that.

          In the above circumstances we find that laches was on the part of the complainant because LARICA ESTATES is a big Estate at Barasat where one hundred of people already have been possessing the flat and flat had already been completed in the year 2012 and in the present case also op sent letter to the complainant requesting him to take possession within 15 days and that letter was sent on 20.03.2013.  But peculiar factor is that complainant did not take possession by clearing that amount, then it is clear that there was no laches or fault on the part of the op.

          In the above situation and also considering the social and moral view and also social approach we are directing the complainant to clear the entire dues and take the possession of the flats from the op and op shall have to handover the possession.  But anyhow the cancellation letter as issued by the op dated 08.07.2013 appears to us is not legal and so the cancellation of the agreement as made by the op is not legal and not binding upon the complainant but op is directed to handover the possession after receiving Rs.1,87,808/- for flat No.33/606 and Rs.4,02,338/- for flat No. 33/607 from the complainant and handover possession and complainant shall have to take possession after full payment of the same and over that amount invariably complainant shall have to pay 10% interest for last 3 years till the date of taking possession and op shall have to comply the same and maintenance charge if any shall be paid by the complainant as per agreement and other charges as per agreement shall be paid by the complainant.

          In fact laches is on the part of the op is not proved but considering the entire fact and also relying upon the previous judgement No. CC-240/2013 and further the op expressed willingness to execute the Deed of Sale due after receiving the balance amount from the complainant we are allowing this complaint but without any cost because complainant’s laches in respect of payment of the balance outstanding is well proved.

          Truth is that long before 3 years in the month of March-2013 op sent letter to the complainant for taking possession after clearing the dues but complainant did not comply for which ultimately in the month of September-2013 which was last month for handover possession by the op, complainant filed this complaint and apparently for which we are not giving any further benefit to the complainant but allowing this complaint for complying the order of this Forum to get relief as granted by this Forum.

          Thus the complaint succeeds.

          Hence, it is

                                                                ORDERED

          That the complaint be and the same is allowed on contest without any cost against the op.

          The complainant is directed to clear all the balance dues as already mentioned in the body of judgement to the complainant within 45 days from the date of this order and on receipt of the said amount by the op, op shall have to deliver kash possession of the two flats i.e. 33/606 & 33/607 at LARICA ESTATE at Barasat on the very date by handing over possession certificate and thereafter within 2 months op shall have to execute the Sale Deed and register it as per terms and conditions of the agreement in respect of the said two flats.

          Moreover the complainant shall have to pay the electric charges and other maintenance charges for last one year to the op at the time of taking possession from the op and regarding registration, execution all costs should be borne by the complainant.  But the entire matter should be complied within 3 months from the date of this order and if op fails to comply within the stipulate period and 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 and if even op is reluctant to comply the order in that case op shall be prosecuted u/s 27 of C.P. Act 1986 and for which further penalty of Rs.10,000/- shall be imposed and even if any reluctant attitude is proved then further penal action shall be taken.  But anyhow complainant shows any reluctant attitude invariable in that case op has no liability to comply the other portion of the order.  So, both the parties are directed to comply the order very strictly.