JUDGEMENT

          Complainant by filing this complaint has submitted that on 08.09.1993 complainant entered into an agreement with the Developer for purchase of a flat at Shrikrishna Apartment, 2 S.H.K.B. Sarani, (Flat No.3, 2^nd Floor) Dum Dum, Kolkata – 700074 and since the construction work of the building was very slow, after getting verbal consent of the developer the due amount was paid in installment upto the year 1997 and the case Flat as per Agreement was fixed at Rs.2,50,000/-.  Complainant has paid Rs.2,57,500/- by installment for Receipt No. 20 dated 08.09.1993 Rs. 5,000/-, Receipt No. 28, dated- 08.09.1993 of Rs. 45,000/-, Receipt No. 56 dated – 14.08.1995 of Rs. 87,500/-, Receipt No. 63 dated – 24.04.1996 Rs. 82,500/- and Receipt No. 109 dated 21.03.1997 of Rs. 37,500/- i.e. total Rs. 2,57,500/-.  As per agreement the excess amount of Rs. 7,500/- had been refunded to the complainant earlier.  So, total amount of Rs.2,50,000/- has already been paid by 21.03.1997.  Subsequently the flat was handed over to the complainant after completion.  But ultimately on 05.05. 2001 in unfinished and incomplete position and finding no other way complainant had to spend Rs.20,000/- to make the flat suitable for living and complainant now resides in this flat since August-2006 and at the relevant time complainant visited Kolkata from Kota (Raj) during his holidays from the year 1994 to 2006, each and every time complainant requested the promoter to complete the finishing work of the flat as per agreement but they did not take care of that request.  So, several letters were sent to the op requesting him to extend their help for registration of the flat but no response was received from the op.  Lastly last letter was sent to them separately by registered post on 26.03.2013 which was returned back undelivered with the remark absent intimation served on 28.03.2013 & 30.03.2013 and subsequently it was not claimed.  So, considering the above conduct of the op, op acted in unfair manner and did not discharge their duties and obligation of the contract and also did not render proper service and for which the complainant is compelled to file this complaint for proper relief and also for deficient and negligent manner of service and also for unfair trade practice and complainant prayed for directing the op for completion of the said flat and for registration of the document.

          On the other hand op no.2 Subrata Chakraborty by filing written statement submitted that ops were proceeding with the job of construction properly in time, but the complainant delayed in payment for long time, delayed in payment of installments of the cost of the flat which has been increased and though the sale price was fixed at Rs.2,50,00/- but op did the additional decorating job as per the instruction of the complainant and for which op has spent another Rs.50,000/- and complainant shall have to pay additional Rs. 50,000/- for additional decorating job with interest up todate.

          Op has further submitted that the flat was not handed over in unfinished and incomplete condition and the complainant had to spend Rs.20,000/- for making the flat suitable for living and habitable is completely false and since the date of delivery of possession on 20.07.1998 and complainant did not press for registration to avoid payment of Rs.50,000/-.  Further op has submitted that he never received any letter from complainant and complainant shall have to prove the fact.

          Op has also denied all the allegations and further submitted that their company has already been closed in the year 2001 and this Forum has no jurisdiction to decide the complaint as for lack of jurisdiction and further the complaint is barred by limitation because the cause of action in the year 1998 but the complaint was filed only in the year 2013.  So, op no.2 prayed for dismissal of this case. 

Further op no.1 by filing written statement submitted that the present complaint is not maintainable and complainant has not paid additional amount of Rs.50,000/- and additional work as yet and so he did not pay for registration of the Deed and all other allegations made by the complainant is false and fabricated and only for the purpose of grabbing money this false case has been filed and no such notice was served upon the ops and the entire complaint is false and fabricated, so, same should be dismissed.

                                              Decision with reasons

          On in depth study of the entire complaint and written version and also considering the materials on record and the argument and overall evaluation as advanced by the Ld. Lawyers of both the parties it is found that it is no doubt an undisputed fact that complainant as per Agreement to Sale dated 08.09.1993 entered into an agreement for purchasing a disputed flat and truth is that he already paid the total consideration as per Agreement i.e. Rs.2,50,000/- by 21.03.1997 in favour of the complainant.  Truth is that possession letter on temporary basis of the case flat No.3 of 2^nd Floor was given on 20.07.1998 but final possession letter was not issued by the op/M/s P.S. Construction and that temporary basis possession was given on 20.07.1998. 

But truth is that total payment had been paid by the complainant by 21.03.1997.  So, there was no dues of the complainant to be paid to the op.  But even then in the said letter on temporary possession letter it is noted that final payment is due.  So full and final possession could not be handed over but op has not yet issued any full possession letter.  Thereafter complainant by a letter dated 06.03.2009 reported the ops for preparing necessary document of registration of the flat and do the needful.  Thereafter prior to that 12.09.1996 complainant wrote a letter to the ops reporting that on verification he found that there were certain incomplete work.  Someother days complainant sent letter to op but most of the letters were received back on the ground that addressee were not available by that place and from the written version of the op, it is found that op no.2 has tried to convince that since 2001 their company has been closed.

Then it is clear that ops are loitering here and there to avoid registration and execution of the final Deed in respect of the case flat and considering the fact it is clear that complainant had tried his level best for searching out the ops for registration of the deed.  But ops were avoiding the same and closed their office for certain purpose.  But at the time of argument Ld. Lawyer for the op submitted that they are willing to execute the deed.  But as because there was some negligent in between the ops and it was not possible and practically ops wanted another Rs.50,000/- for additional work that has not been paid by the complainant.  But anyhow ops have failed to prove that they did any additional work in the said flat.  So, the claim of the op is completely baseless and without any foundation, on the contrary it is proved that ops intentionally and for squeezing another Rs.50,000/- from the complainant did not execute the Deed of Sale and did not register it.

So, apparently we find that complainant has not filed any non-execution registration of the Deed and in fact ops had been avoiding to execute the same on the ground that they are not willing to execute it if another Rs.50,000/- would not be paid by the complainant.  So, negligent and deficient manner of service on the part of the ops is proved at the same time it is proved that ops adopted unfair trade practice and fact remains for their deceptive manner and practice in trading of housing construction business, complainant has suffered much and truth is that in most of the cases even after giving possession, the developers are claiming further money out of the agreed amount as per agreement and in this case that type of method had been adopted by the ops which is no doubt unfair trade practice and that has been proved against the ops.  Anyhow the ops have failed to prove any laches on the part of the complainant.

Considering the whole fact and circumstances we are convinced that only for the negligent and deficient manner of service of the ops and also for adopting some deceptive and unfair practice by the ops, complainant has suffered financially and in the mean time the cost has been increased at a high rate and no doubt for that reason complainant shall have to suffer financially also.  But that suffering is caused due to ops’ adopting of unfair trade practice and for negligent and deficient manner of service and for that reason invariably complainant is entitled to get compensation against the ops.

In this case Ld. Lawyer for the op has tried to convince that it is barred by limitation but in this regard we are sure that such a plea is not maintainable in view of the fact that it is settled principle of law that till final execution and registration of the Deed, the cause of action was continue and in this case no doubt for the fault of the ops and for adopting their unfair practice, practically the Deed has not been executed and registered by the ops for not getting another Rs.50,000/- as per their extra demand what complainant denied to pay when admittedly he already paid the amount to the ops long back in the year 1997.

So, after considering the principle of law and the present fact and circumstances we are convinced to hold that complaint is not barred by limitation and there is no lack of jurisdiction to this Forum to decide the same and so the entire complaint is found maintainable and this Forum has jurisdiction to decide such a consumer dispute in the present complaint.

In the light of the above observation we are convinced to hold that complainant has been able to prove allegations of the op beyond any manner of doubt and no doubt complainant has been suffering and he has also suffered financial loss for which the complaint succeeds.

Hence, it is

                                                      ORDERED

That the complaint be and the same is allowed on contest against the ops Mr. Pradip Chatterjee & Mr Subrata Chakrabarty co-partners of M/s. P.S. Construction with cost of Rs.10,000/-.

Both the ops are hererby directed to execute and register the Deed of Sale in respect of the case flat as per agreement within one month from the date of this order in favour of the complainant failing which complainant shall be at liberty to execute and register the same at his own cost through this Forum.

For causing harassment to the complainant and also for adopting a deceptive and unfair trade practice and for demanding some money from the complainant and also for increasing the registration charge in the meantime for the laches for negligent and deficient manner of service both the ops jointly and severally are directed to pay a sum of Rs.50,000/- to the complainant and same shall be paid within one month from the date of this order.

For adopting unfair practice in housing construction and for deceiving the complainant in such a manner both the ops jointly and severally shall have to pay a sum of Rs.50,000/- as punitive damages which is imposed by this Forum for checking such sort of deceptive and unfair practice by the op in future.

Ops are directed to comply the order very strictly within one month from the date of this order failing which for each day’s delay ops shall have to pay jointly and severally penal interest @ Rs.200/- per day till full satisfaction of the decree and for implementation of the order even penal proceeding shall be started against them for which further fine and penalty may be imposed.