Dt. of filing – 15/05/2018
Dt. of Judgement – 11/09/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Ajit Kumar Mitra under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Mr Biplab Roy and 2) Roy & Company alleging deficiency in service on their part.
Case of the Complainant in short is that he entered into an agreement for sale dated 6/06/2006 with the Opposite Parties to purchase a flat as described in the schedule of the agreement on payment of consideration of Rs.10,50,000/-. Complainant is in possession of the said flat and has also recorded his name in the records of the Kolkata Municipal Corporation as assessee. Complainant has paid the entire consideration price and has further paid an amount of Rs.3,50,000/- and Rs.1,00,000/- towards extra construction work and thus paid in total Rs.16,00,000/-. But inspite of the repeated request Opposite Parties have not executed and register the Deed of Conveyance in favour of the Complainant. Steps were also taken by the Complainant by purchasing stamp paper and forwarded the draft Deed of Conveyance to the Opposite Party No.1 being the sole proprietor of Opposite Party No.2 for its approval and registration. But Opposite Party did not take any step towards the registration of the flat in favour of the Complainant. So ultimately a notice was sent by the Complainant through his Ld. Advocate on 23/06/2017 directing the Opposite Party to execute the Deed of Conveyance but all in vain. So the present complaint has been filed praying for directing the Opposite Party to execute and register the Deed of Conveyance as per agreement for sale dated 6/06/2006, to issue completion certificate, pay compensation of Rs.2,00,000/- towards mental agony and Rs.1,00,000/- for deficiency in service and to pay litigation cost.
Complainant has annexed with the complaint petition, copy of the agreement for sale dated 6/06/2006, property tax receipt issued by the Kolkata Municipal Corporation, Non-judicial stamp paper of Rs.5,000/-, copy of the notice sent by the Complainant through his Ld. Advocate dated 23/06/2017 and copy of the reply dated 20/07/2017 by the Opposite Party.
At the time of hearing of the argument Complainant has also filed original document i.e. agreement for sale, receipt showing payment of amount and the bank statement.
Opposite Parties have contested the case by filing written version denying and disputing the allegation made in the complaint petition contending specifically that the Complainant was handed over second floor flat measuring 865 square feet on 6/06/2006. Complainant agreed to make all the consideration money to the Opposite Party by 31/07/2007 but he did not make any payment. Complainant is not entitled to the relief as the huge amount is due to be paid by the Complainant. Complainant remained silent for about ten years and it is only in 2017 he sent the notice. The case was also filed earlier being no.CC/816/2017 by the Complainant and 5 Others before the Hon’ble State Commission and the same is pending. So the present complaint is not maintainable and thus liable to be dismissed.
During the course of the evidence both the parties filed their respective evidence followed by questionnaire and answer thereto. Ultimately argument has been advanced by both the parties and both the parties have also filed written notes of argument. Complainant has relied upon several decisions reported in 2013(3) CPR 69 (NC), 2) IV (2012) CPJ 38 (NC) and 3) (2016) 1 WBLR (CPSC) 379 in support of the argument that pendency of Civil Suit cannot be a ground of non-maintainability of the complaint before the Consumer Forum.
Opposite Parties have also relied upon a decision in Civil Appeal No.1544 of 1987 of Hon’ble Supreme Court in the case of Namita Bose Vs Ratanlal Nahata in support of their argument that the Court Fee has not been paid by the Complainant properly and the same is abuse of the due process of law.
So the following points require determination:
- Whether there has been deficiency in service on the part of the Opposite Party?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both these points are taken up together for discussions.
In support of his claim that an agreement was executed between the Complainant and the Opposite Parties, Complainant has filed the agreement dated 6/06/2006 wherefrom it appears that the Opposite Parties agreed to sale the flat as described in the Schedule ‘B’ of the agreement at a consideration of Rs.10,50,000/-. As per agreement an amount of Rs.1,00,000/- was already paid by the Complainant by way of cheque on the said date of agreement itself. It was agreed between parties that the Opposite Party/Vendor shall complete the construction of the said flat within 30/11/2006 and on receipt of the balance consideration money, shall handover the said flat to the purchaser.
On perusal of the written version filed by the Opposite Party, the main contention appears to be that the full consideration amount has not been paid by the Complainant. But it is admitted by the Opposite Parties that the possession of the flat was handed over to the Complainant. According to Opposite Parties, they handed over the possession on 6/06/2006 whereas according to Complainant in the document especially the notice filed by him, disclose that the possession was handed over in July, 2009. So, on a careful perusal of the written version it appears that execution of the agreement has not been disputed and denied. With regard to the payment of the consideration price, Complainant has filed the receipts and also bank statement wherefrom it appears the payment of consideration price as agreed was made by the Complainant. Apart from this if the specific terms and condition of agreement was that the possession of the flat will only be handed over by the Opposite Parties on payment of balance consideration amount and as it is admitted case of the Opposite Parties that the possession of the flat has been handed over, then there remains no doubt that only after accepting the balance consideration, the flat was handed over.
Opposite Parties have not filed any document in order to substantiate the claim that the possession was handed over on the very date of agreement i.e. on 6/06/2006 as claimed in written version. Same can also not be believed if the terms and condition of the agreement is taken into consideration as only on payment of balance consideration amount, possession was agreed to be handed over. As per terms of agreement Opposite Party had to complete the construction by 30/11/2006. So the claim of the Opposite Parties in their written version that the possession was handed over on 6/06/2006 suggesting that balance consideration has not been paid, cannot be accepted especially when there is absolutely no document filed by the Opposite Parties in this regard.
In written argument Opposite Parties have also claimed that Civil Suit has been filed against the Complainant claiming him as trespasser. So for recovery of the possession. But in the written version as already highlighted above, it is the own claim of the Opposite Parties that the flat was handed over to the Complainant by them. In such a situation pending of the Civil Suit cannot be a bar to proceed with this case. As it also been observed by the Hon’ble National Commission in the case law relied upon by the Complainant in the case of Arun Khanna Vs Sashi Sharma & Ors reported in IV(2012) CPJ 38 (NC) that Sec.3 of the Act makes it clear that the remedy available under the C.P.Act is in addition to the normal remedy or other remedy may be available to the Complainant. It may be mentioned here that in the said case law also, Civil Suit was pending and the ground was taken by the builder therein that a Civil Suit was pending on the same matter.
It is also agitated by the Opposite Parties that as per own case of the Complainant, a complaint is filed before the Hon’ble State Commission being no.CC/816/2017 but on a careful perusal of the present complaint it appears that the said complaint has been filed by the flat owners including the Complainant agitating un-finished and incomplete work at the premises no.17, Gobinda Bose Lane. It is categorically stated in the complaint that this complaint is restricted only with regard to registration of the flat and for handing over of the completion certificate. Opposite Parties have not filed any document including the copy of the complaint petition filed before the Hon’ble State Commission to show that two cases are similar and similar relief has been prayed.
Argument on behalf of Opposite Party that less court fee has been paid apparently Complainant has paid court fee of Rs.400/- only instead of Rs.500/-.
Office while admitting the complaint should have taken note of it but keeping in view the settled principle of law, an opportunity has to be given to the Complainant to pay deficit court fee of Rs.100/-. So Complainant shall pay deficit court fee of Rs.100/- by Demand Draft. Only on payment of the said deficit court fee, Judgement passed herein shall be effective.
So, in view of the discussion highlighted above Complainant is entitled to the execution and registration of the Deed of Conveyance in his favour. However, keeping in view, facts and situation of this case, as the Complainant was in possession of the property but remained silent and moved this matter only in 2018, we find no justification to allow compensation as prayed for.
Hence,
ORDERED
CC/254/2018 is allowed on contest. Opposite Parties are directed to execute and register the Deed of Conveyance in favour of the Complainant as per agreement entered into between the parties dated 6/06/2006, within 3(Three) months from the date of passing of this order. Opposite Parties are further directed to pay Rs.12,000/- as litigation cost.
Complainant shall pay the deficit court fee as observed in the judgement within 7(Seven) days.
