Order-18.
Date-09/1/2015.
In this complaint Complainants Sri Anup Kumar Giri& Smt. Nilanjana Sengupta (Giri)by filing this complaint has submitted that complainant entered into an Agreement for Sale dated 22.09.2006 with the op no.1 and Gokul Properties, the Firm of the op no.2 for purchasing a residential flat measuring about 711 sq. ft. of Super Built Up area on Western front side of the 1st floor of the building at 64/68/1, Khudiram Bose Sarani, Kolkata-700037, P.S.-Ultadanga at a total consideration price of Rs.11,04,500/- and it was represented by the ops to the complainant that op no.1 was the owner of the land and premises by constructing a multi-storied building thereon after demolishing the old structure and accordingly the land owner op no.1 entered into an agreement for Development on 02.03.2006 (unregistered).
Complainants were further informed that in connection with the said Agreement for Development dated 02.03.2006 op no.1 executed a General Power of Attorney (unregistered) in favour of op no.2 for development at the said premises.In terms of such documents and authorities, op no.2 started construction work at the subject premises by demolishing the old structure and ultimately completed the construction of the super structure of the building but however several external and internal and finishing works were left incomplete.Complainants by fulfilling their obligations by making payments from time to time to op no.2 a total sum of Rs. 10,00,000/- has been paid within the period from 18.09.2006 to 26.08.2008.
According to the Agreement of Sale, ops agreed to hand over to the complainants the subject flat within 18 months from the date of the agreement for sale dated 22.09.2006 which miserably failed to comply.Although neither of the ops issued any formal possession letter in favour of the complainants, but complainants have entered into possession of the incomplete subject flat towards the end of January 2010 at the specific verbal request of the op no.2.
But instead of completing the construction of the said building, the ops were more keen on raising allegations and disputes against each other on various issues as a result of which the work of construction was in stalemate condition in the year 2007 due to some alleged deviation.
In fact as per Agreement, ops failed to deliver their obligations in terms of the Agreement to Sale dated 22.09.2006 but they did neither bother to refund the amounts already paid or advanced by the complainants nor bothered to execute the final deed of conveyance of the subject flat in favour of the complainants.But in terms of Clause No.20 of the said Agreement for Sale dated 22.09.2006 the developer shall take every step to complete said transaction and execute such documents for transfer of the title in terms of the Agreement.
Complainants requested the ops on several occasions for umpteen number of times to complete the works agreed for the subject flat and to execute the final Deed of Conveyance in favour of the complainants but all such requests and reminders were in vain
Truth is that complainant availed of a Housing Loan for purchasing the subject flat from the State Bank of India, Milk Colony Branch, Kolkata and as per terms of sanctioned loan in favour of the complainants, the said bank issued in favour of Gokul Properties op no.2, the cheques as referred to in the table appended to the paragraph no.6, but inspite of requests ops did not execute the final Deed of Conveyance in favour of the complainants and the said bank did not disburse the residual amount out deed of Conveyance and the op no.2 did not complete the construction work, but complainants paid their regular EMIs without default to bank for repayment of the loan amount.
Ultimately in the March, 2010 complainants received a letter from op no.1 on 08.03.2010 along with photocopy of newspaper publication darted 05.03.2010 of a Bengali daily Bartaman whereby the complainants were informed that the Agreement for Development dated 02.03.2006 and the General Power of Attorney was executed on 02.03.2006 by and between the op’s revoked by the op no.1 with effect from 20.02.2010.
On receipt of such information, complainants rushed to the op no.1 seeking an explanation on the contents of the said newspaper publication, but op no.1 with his explanations and assurances made the complainants belief that it is only the developer who has been debarred from the said Development project, otherwise all purchasers shall remain safe and unaffected and the final Deed pf Conveyance will be executed and registered personally by the op no.1.Although complainants could get possession of the subject flat but the said flat was not readily habitable and several works were left undone by the op no.2 and such works were to be completed in terms of the Agreement by and between the parties and even more so since the op no.2 has already received almost the entire agreed consideration amount.But incomplete works for common areas and purposes of the building are still there.
Most interesting factor is that after revocation of the Agreement of development and Power of Attorney by the op nos. 1 & 2 they refused to take any further step for completion of the unfinished works and also to execute the final Deed of Conveyance and inspite of specific requests, op no.1 kept on giving vague excuses and kept delaying the execution of the final Deed of Conveyance in favour of the complainants.In fact ops did nothing.But complainants had to spend Rs. 1,91,800/- towards the expenses for completing unfinished works for the said flat and after such expenses, complainants intimated the ops regarding such works done from the own funds of the complainants and complainants were supposed to pay for their agreed square feet of super built up area at the rate of Rs. 1,500/- per square feet i.e. total amount of Rs.10,66,500/- and complainant would pay an additional amount of Rs. 38,000/- for Roof Garden, Collapsible Gate of the Flat and towards the proportionate expenses for a common electric meter for the electrical expenses for common purposes of the building and others.
Complainants after taking over possession of the subject flat caused measurement of the same through a licensed building surveyor (LBS) and according to the calculations as shown in the plan and complainants had to pay Rs. 12,03,855/- for the 598 sq. ft. of covered area.But complainants have not yet been handed over with a revised sanctioned building plan upon completion/clearance certificate from the appropriate Municipal authority.
In fact for negative attitude of the ops, complainants has been suffering financial loss and in the meantime market value is conservatively estimated at Rs. 30,00,000/- for difference in the market value and for which complainant shall be compelled to pay Rs. 2,00,000/- for registration and gradually it would be increased if ops did not execute the Sale Deed.
In the above circumstances, for negligent and deficient manner of service and also adopting unfair trade practice and further for non-executing the Sale Deed, complainants have been suffering much and it is the legal liability and responsibility of opto execute the Sale Deed and to complete the flat and make it habitable and to refund the amount which has been spent by the complainant for completing unfinished work for the said flat.In the above circumstances, complainants prayed for redressal.
On the other hand op no.1 by filing written statement submitted that the present complaint is not maintainable in view of the fact that it is a dispute relating to matters governed under West Bengal Building (Regulation of Promotion and Transfer by the Promoters) Act, 1993 in which Section 12A, it is clear that time for adjudication of the dispute of this Forum.So, no redressal can be granted in favour of the complainant.
Further it is submitted that as per Development Agreement, op no.1 as owner of the land and premises will get his allocation being owner’s allocation of two self-contained complete flats covering the entire 2nd floor and one garage room on the North Western portion of the Ground Floor and for that purpose unregistered agreement for development was executed and op no.1 after execution of the said Development Agreement executed one General Power of Attorney in favour of the op no.2 and after obtaining the possession of his allocation and land owner op no.1 should register the Sale Deed in favour of the developer op no.2.
It is further submitted that op no.2 as developer neither submitted sanctioned building plan to the landowner nor a progress work of the proposed building and ops came to know that construction work of the proposed building had been stopped by KMC for unauthorized construction by the op no.2 and as per said order of the KMC order was passed on 25.03.2008 whereby the Ld. Special Officer directed to demolish the entire unauthorized construction on the 3rd floor and other portions of the newly constructed building and also directed to comply the provision of a certificate from KMC empaneled structural engineer in respect of stability and safety of the proposed building.
After suffering in the above said manner for deliberate and willful misconduct of the op no.2, op no.2 sent notice dated 18.11.2008 stating all the facts about his illegal construction at the suit premises behind the back of the op no.1.But op no.2 as developer failed and neglected to deliver possession of the land-owner’s allocation within the stipulated period of 18 months from 17.06.2006 as per provision of Agreement for Development.
Thereafter op no.1 served several notices to op no.2, but op no.2 did not take any step.So, the entire liability is upon op no.2, he has his deficiency in service and at the same time op no.1 has illegally constructed some portion in construction work of sanctioned plan and underground water reservoir and septic tank on the ground floor were not constructed in the proper place as per sanctioned building plan and many other illegal construction works have been made for which the op no.1 ultimately cancelled his power of attorney of Development Agreement.
But op no.1 has submitted very specifically that he does not have any objection to execute Deed of Sale in favour of the complainants provided op no.2 completes all the incomplete works as mentioned above as well as reimburses the expenses incurred by the land-owner/op no.1 and also the flat of the complainants to be conveyed to the complainants must be in accordance with the sanctioned building plan sanctioned by KMC. So, op no.1 has no legal liability to execute the same alonebut otherwise denied all the allegations of the complainants.
On the other hand op no.2 JoydebSaha by filing written statement submitted the total cost of the flat in question is Rs. 15,30,000/- and break up is noted in the written version and practically op no.2 has submitted that till now a sum of Rs. 1,74,500/- has not been paid. But op no.2 received Rs. 10,00,000/- and the total amount is due and payable to the op no.2 is Rs. 1,74,500/-. So, op no.2 is entitled to get Rs. 1,74,500/-.
It is specifically stated by the op no.2 that op no.1 allegedly cancelled the development agreement dated 02.03.2006w.e.f. 20.02.2010 and it is specifically stated by the answering op that although the Development Agreement and the General Power of Attorney was revoked or cancelled but the op no.1 failed to refund the amount paid to him by the op no.2 and the amount invested by op no.2 for construction of the building at premises No.64/68/1, Khudiram Bose Sarani, P.S.-Ultadanga, Kolkata-700037 and this op invested a huge amount in the project and almost completed the same and even the op no.2 handed over the physical possession in respect of the area and portion of flat or garage to the respective agreement holders. As the op no.1 revoked the Power of Attorney and cancelled the Development Agreement and this op no.2 has no right to execute such Sale Deed. But op is always ready to execute the Sale Deed if op no.1 gave a fresh Power of Attorney in favour of this op no.2.
It is specifically stated by op no.2 that op no.1 made deviation in respect the flat allotted to him and for such deviation, huge amount is required for obtaining Completion Certificate from the L.B.S. who demanded of Rs. 40,000/- from this op on 27.06.2007 and op no doubt made deviation respect of the flat and for such deviation certificate and the difference amount should be paid by the op no.1 and denied all other allegations as made by the complainant. Further op is entitled to get further amount of Rs. 60,000/- in addition to the amount as per agreement dated 19.10.2006. So, there is no deficiency or negligence on the part of the ops.
Decision with reasons
On comparative study of the complaint and written version and also considering the entire materials on record it is undisputed fact Development Agreement dated 02.03.2006 was executed amongst ops andagainst that Power of Attorney dated 02.03.2006 was executed by op no.1 in favour of op no.2 but it is unregistered Power of Attorney. It is also proved that op no.2 constructed the building not as per sanctioned plan issued by the Kolkata Municipal Corporation for which as per rules of KMC for unauthorized and illegal construction KMC passed such order for demolition of the illegal portion as constructed by the op. So, it is clear that op no.2 willfully violating the terms and conditions of the agreement and also the sanction plan constructed such a construction which is no doubt illegal and for which op nos. 1 & 2 and are directed by Special Officer of the KMC to submit report about destruction for the unauthorized construction but that has not been done by the op no.2.
It is also admitted fact that the Development Agreement including the Power of Attorney had been cancelled by the op no.1. So, op no.2 has failed to execute the Sale Deed or to do any further work. It is also proved from the document that op no.2 has not completed many works of the building and that has been reported by the op no.1. But even then op no.2 has handed over possession but failed to execute the Deed for Sale for want of Power of Attorney and as per agreement for development which has been cancelled by the op no.1.
Fact remains that op no.1 landowner has admitted that he is willing to execute the Sale Deed along with op no.2 if op no.2 completed thebuildings as per Development Agreement andsanctioned plan. So, it is clear that possession of the flat has been taken by complainant not as per any possession letter but somehow or otherwise took possession. But developer and op nos. 1 & 2 have categorically admitted that they are willing to execute the Sale Deed. But complainant has not paid some unpaid consideration and that shall be paid by the complainant and it is also submitted that the total areas as possessed by the complainant is more than that of the agreement to sale.
So, complainant is liable to pay some amount. But ops otherwise denied all other allegations and considering all the above fact and materials we are of view that without filing case against the ops complainant shall not get any registered Sale Deed by the ops. No doubt at this stage op no.2 has not appeared to execute or register the Sale Deed when Power of Attorney and development agreement are cancelled and op no.1 has no authority to execute the registered Sale Deed of the same in favour of the complainant or any other intended purchaser.
So, no doubt op no.2 has no legal authority to execute Sale Deed or registration the same. Similarly when op no.1 cannot execute, though op no.1 is willing to execute because entire construction is now illegal construction as per KMC’s order. Considering the entire materials on record, we have gathered that no doubt it is proved that complainant got the possession of the flat otherwise and he has been residing and no doubt op no.1 the land owner admitted denied the fact that it is the duty of op no.2 to comply the same. So, in completeness of the entire construction is well proved. It is also proved that op no.2 has constructed the building not following the terms and conditions of sanctioned plan. So, it is the duty of op no.2 to secure the sanctioned plan, completion certificate from the KMC and thereafter must have to execute the Sale Deed and register the same by the ops.
Regarding balance amount purchaser complainants shall have to pay total sum of Rs. 11,04,500/-, but admitted position is that complainant has paid Rs. 10,00,000/-. So, as per agreement, complainant is liable to pay Rs. 11,04,500/- as balance amount before registration. But truth is that complainant somehow or otherwise took possession of the flat. So, complainant is liable to pay Rs.11,04,500/- as balance amount. But in the meantime it is found that total super built up area has been increased and for extra area, op no.2 has claimed Rs. 50,000/- and for additional area op has prayed for Rs. 50,000/-. So, the figure has been increased up to Rs. 12,14,500/- and op no.2 has paid for a total payment of Rs. 1,74,500/- as per ops calculation.
No doubt complainant has tried to convince that he has already spent huge money for unfinished work of the flat. But complainant has failed to produce any document about taking possession of the flat andthere is no paper to show that he received incomplete flat as because complainant has failed to produce such document, then invariably complainantshall have to pay Rs. 1,74,500/- as balance consideration before execution and registration of the Sale Deed.
But truth is that op nos.1 & 2 shall complete the entire construction (building) and shall have to handover copy of sanctioned plan of the flat including construction of the building and completion certificate and also other papers related to flat to the complainant before executing and registering the Sale Deed. In this regard negligence and deficiency on the part of the ops are well proved for which invariably complainants are entitled to get some relief. But in this case one question is raised by ops’ Lawyer that this dispute shall be decided as per agreement to sale (Regulation of Promotion and Transfer by the Promoters) Act, 1993).
In this regard we have gone through the provision of that act including the provision of Section 3 of the C.P. Act and further considering the entire fact, it is found that no part of the Development Agreement was registered by the landowner. Construction was not registered as per West Bengal Building (Regulation of Promotion and Transfer by the Promoters Act, 1993) and at the same time by that act deficiency and negligence and unfair trade practice cannot be decided but this case is for negligence and deficiency of service and for adopting unfair trade practice. This Forum can only decide the same except this Forum and no other Forum can decide such a dispute. At the same time West Bengal Building (Regulation of Promotion and Transfer by the Promoters Act, 1993) is not for deciding any consumer dispute and it is another provision and the authority under that act has no legal authority to decide the present dispute and as per the said act, intended purchasers of flat should not treated as consumer and there is no clause about deficiency of service and consumer in the said Act.
So, all over India all the properties in respect of Housing Construction, only C.P. Act is applicable and Hon’ble Supreme Court has been confirmingso many judgement passed by the National Commission in this regard and when we find that Hon’ble Supreme Court, judgements confirm. Suchsort of dispute as finally decided by the Foratreating as maintainable, we are of view that the defence of the op is not legally tenable.
So, under any circumstances, we cannot accept such argument that this Forum has no jurisdiction. For long years Supreme Court has confirmed the judgement of National Commission in such sort of dispute and that is binding upon us and for which we find that this complaint is maintainable and this Forum has jurisdiction to decide the same.
Most interesting factor is that both the ops are liable to execute and register the Sale Deed. Then Forum can pass such order to execute and register the Sale Deed and by directing the ops to fileall other documents and clearance certificate to the complainant. But invariably for that purpose, complainant shall have to deposit Rs. 1,74,500/- as consideration amount to this Forum within one month from the date of this order and thereafter ops shall have to execute and register the Sale Deed in respect of the flat in question as per Agreement to Sale dated 22.09.2006 by handing over completion certificate and valid sanctioned plan.
But anyhow we are not accepting the measurement as made by the complainant by their LBS and in the agreement to Sale nowhere it is stated that it is covered area. But it is specifically mentioned the area shall be 711 sq. ft. super built up area, but not covered area and it has become a practice of the consumer to mislead the Forum in such a manner. So, we do not accept the complainants’ plea that covered area is 598 sq. ft. when complainant has admitted that there is added area of 598 sq. ft. invariably complainant shall have to pay balance amount as already decided by this Forum and ops are invariably liable to execute the Sale Deed for registering the same in favour of the complainant within one month from the date of deposit of the amount in this Forum when no doubt ops have admitted that they will execute it. Thepresent complaint succeeds with such relief as awarded.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against op no.1 without any cost but same is allowed on contest with cost of Rs. 5,000/- against op no.2.
Op nos. 1 & 2 jointly shall have to execute the Sale Deed by executing and registering the same in favour of the complainants within one month from the date of deposit of balance amount of Rs. 1,74,500/-by the complainant and same shall be deposited within one month from the date of this order before this Forum.
At the time of execution and registration of the Sale Deed, op nos. 1 & 2 shall have to hand over sanctioned plan, building completion certificate and other documents to the complainantsand ops shall have to complete the entire construction work and if ops fail to comply the order, in that case op nos. 1 & 2 jointly and severally shall have to pay penal damages at the rate of Rs.10,000/- per month till full completion of the construction of the building and if it is collected it shall be deposited to this Forum and if it is collected, out of that 50 percent of the amount shall be paid to the complainant.
Even if it is found that ops are reluctant to comply the order, in that case, penal action shall be started against them u/s 25 read with 27 of C.P. Act 1986 for which further penalty and fine shall be imposed upon ops.
