This is a complaint made by one Milan Kanti Das, son of Late Khagendra Kumar Das, A/6, 2 No. Poddar Nagar, P.S.- Jadavpur, Kolkata -700 032 against (1) M/s Bee Bee Enterprise having its office at 75, Aswini Nagar, P.S.-Jadavpur, Kolkata-700 040, OP No.1, (2) Sri Biman Roy, sole proprietor of M/s Bee Bee Enterprise, 75, Aswini Nagar, P.S.- Jadavpur, Kolkakta-700 040, OP No.2, (3) Smt. Sabita Chakraborty, wife of Late Basudev Chakraborty, A/6, 2 No. Poddar Nagar, P.S.-Jadavpur, Kolkakta-700 032, OP No.3, (4) Sri Goutam Chakraborty, son of Late Basudev Chakraborty, A/6, 2 No. Poddar Nagar, P.S.-Jadavpur, Kolkata-700 032, OP No.4, (5) Sri Gouranga Chakraborty, son of Late Basudev Chakraborty, A/6, 2 No. Poddar Nagar, P.S.-Jadavpur, Kolkata-700 032, OP No.5 and (6) Smt. Lakshmi Chakraborty, wife of Sri Samir Chakraborty, S.L.Chatterjee Street, P.S.-Nimta, Kolkata-700 049, praying for an order directing the OPs to complete the building in all respect, an order directing the OPs to complete execution and registration of deed of sale, an order directing OPs to make payment to the Complainant Rs.2,00,000/- as compensation for mental agony, an order directing the OPs to pay Rs.50,000/- as litigation cost, and also directing the OPs to pay Rs.4,47,154/- as interest and also an order directing the OPs to pay Rs.49,500/- as rent.
Facts in brief are that Complainant is a consumer under Section 2(i)d of the Consumer Protection Act. OP No.1 has a proprietorship business and OP No.2 is the proprietor of the OP No.1. OP No.3, 4, 5 & 6 are the joint owners of the land at A/6, 2 No. Poddar Nagar corresponding to the Kolkata Municipal Corporation premises No.141/8, Prince Golam Hussain Shaha Road, entered into on 14.3.2004 into a development agreement with the OP No.1 2 for development of the premises by making a construction of a three storied building. OPs in continuation of the development agreement entered into an agreement for sale on 27.3.2008 with the Complainant for purchasing a flat measuring about 725 sq.ft. super built area in 2nd floor of the three storied building. OP No.1 & 2 to complete the flat in complete habitable condition and handover it within 30th day of May, 2008. OP No.1 & 2 if failed to handover the flat to the Complainant would pay Rs.4,500/- per month as compensation. OP No.1 & 2 delivered the subject flat to the Complainant on 2.3.2009 after the stipulated period of delivery it in incomplete condition. OP No.1 & 2 refused to complete the incomplete job of the building. The Complainant himself spent a sum of Rs.74,195/- to complete the job of roof treatment. Agreed price of the flat was Rs.6,50,000/-. Complainant paid Rs.5,73,855/- directly to the OP No.1 & 2. They also spent Rs.74,195/- in the flat. So, the Complainant is liable to pay to the OP No.1 & 2 only Rs.1950/-.
After taking possession of the flat Complainant repeatedly asked the OP No.1 to 6 for making execution and registration of the deed of conveyance in respect of the flat in favour of the Complainant. But the OPs declined to do the same. Complainant alleged several diaries to the local Jadavpur P.S. Complainant sent a letter dated l27.12.2013 to the OPs stating all the grievances. Complainant. Complainant suffered heavy financial loss due to non-registration. So, Complainant filed this case.
OP filed written version and denied the material allegations of the complaint. They have stated that the flat is the developer’s allocation. Further, OPs have stated that the status of the ownership in respect of the flat in question is in lien. So, it cannot be registered and the developer is to decide whether he will register the flat or not. So, they have prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this OPs have filed questionnaire to which Complainant has filed reply.
OP has also filed affidavit-in-chief to which Complainant has filed questionnaire to which OP has filed reply.
Main point for determination is whether the Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that the first prayer of the Complainant is for a direction upon the OPs to complete the building.
In this regard it appears from the perusal of the complaint it is mentioned that some works were not done by the OPs when the possession was handed over and the schedule of the work is mentioned in the complaint.
Now, on perusal of the agreement for sale, it appears that it was entered on 27.3.2008. The complaint was filed in 2015 i.e. after about six years of handing over possession by the OP to the Complainant. There is no explanation as to why Complainant did not take its recourse within the period of two years which is time for filing the complaint.
So, in our view there is no material to allow the first prayer of the Complainant.
2nd prayer of Complainant is for direction upon the OP to complete execution and registration of the deed of sale in respect of the flat. Admittedly the possession is with the Complainant. But, the sale deed has not been registered by the OP. On perusal of the agreement, it appears that it was the duty of the OP to make registration of the deed in favour of the Complainant which they did not do. Of course, in written version the OPs have alleged that some amount is due to be paid by Complainant. In the written argument Complainant has stated that only Rs.1950/- is due which has not been denied by the OP.
In the circumstances, we are of the view that since possession has been handed over to the Complainant, the registration of the flat must be done in favour of the Complainant by the OPs. So, this prayer of the Complainant can be allowed.
Prayer 3 is passing an order directing the OPs to make payment to the Complainant for compensation of Rs.2,00,000/- for mental agony.
In this regard, it is stated that Complainant is not entitled to the compensation. Because Complainant took possession of the flat after thirteen months of the agreement for sale. But, waited for the registration to be made and did not approach the Forum for registration. As such, we are of the view that Complainant does not deserve any compensation.
Prayer No.4 is a direction upon the OP to pay Rs.50,000/- as litigation cost. On perusal of the document and the evidence of Complainant and OPs, it appears that Complainant is entitled to the litigation cost, because, he was compelled to file this complaint for registration. Accordingly, we are of the view that if litigation cost of Rs.20,000/- is allowed it would serve the purpose.
Further, Complainant has prayed for interest to the tune of Rs.4,47,154/-. There is no mention about the basis on which this interest was calculated. However, Complainant filed this case in 2015. But, enjoyed the flat since Complainant got the possession in time. As such, the question of awarding interest does not arise.
Further prayer is rent of Rs.49,500/-. There is no explanation as to why the Complainant has claimed this amount when Complainant got possession as agreed by the OPs in terms of the agreement for sale. In terms of the agreement for sale the question of granting of rent does not arise.
Hence,
ordered
CC/120/2015 and the same is allowed in part on contest. OPs are directed to make the deed of conveyance in favour of the Complainant within three months of this order, after receiving the amount due. OPs are also directed to pay Rs.20,000/- to the Complainant within this period, otherwise it shall carry interest @ 10%p.a. till realization. The responsibility of the OPs is joint and several.
