10.02.2015.
MRIDULA ROY, MEMBER.
The case of the Complainants, in brief, is that during construction of a proposed building on a piece of land situated at 55, R. K. Ghosal Road, Kolkata – 700042 owned by the O.P. Nos. 4 to 10 who executed an Agreement for Development dated 02.03.2008 with the Developers i.e. the O.P. No. 1 partnership firm and the O.P. Nos. 2 & 3, its partners and also executed a Power of Attorney dated 03.10.2009 in favour of them, the Complainants entered into an Agreement for Sale with the Developers on 04.06.2008 for purchasing one self contained flat on the 2nd floor of the building measuring about 1080 sq. ft. super built-up area for a consideration of Rs.15,50,000/-. The O.Ps as per terms of the said agreement dated 04.06.2008 agreed to deliver possession of the said flat within 18 months from the date of the execution of the agreement.
Subsequently, another Agreement for Sale dated 05.12.2009 has been executed by and between the parties whereby the parties agreed to transfer one self-contained flat measuring about 1291 sq. ft. super built-up area in the 2nd floor of the proposed building and a car parking space in front side at a consideration of Rs.17,25,000/- in favour of the Complainants. The Complainants have stated that though it was not mentioned in the Agreement dated 05.12.2009 that the Agreement for Sale dated 04.06.2008 was to be treated to be cancelled but on mutual understanding it was decided by the parties that the earlier agreement dated 04.06.2008 had been cancelled and/or modified and the second Agreement dated 05.12.2009 would be accepted. However, as per terms of the Second Agreement the O.Ps agreed to complete the construction of the said flat in all respect as described in the second schedule within a period of six months from the date of execution of the said agreement. Therefore, as per terms of the Agreement dated 05.12.2009 the O.Ps were supposed to deliver the flat within June, 2010 but in spite of repeated request from the end of the Complainants the O.Ps did not deliver the possession of the flat. The Complainants during that period have paid Rs.10,72,500/- through bank loan, Rs.6,20,000/- through cheques and Rs.75,000/- in cash and thus paid Rs.17,67,500/- in total and further, as per payment schedule the developer will suppose to receive an amount of Rs.2,45,000/- from the Complainants at the time of delivery of possession but in spite of payment of such huge amount, the O.Ps did not deliver the possession of the said flat and delayed the matter on various pretexts. The Complainants further mentioned that they have already paid Rs.17,000/- on 10.08.2011for plumbering, Rs.59,200/- on 15.07.2011 for grill work, Rs.29,000/- for extra electrical fittings, Rs.10,000/- for granite polish, Rs.11,660/- for window cover marble, Rs.5,000/- for extra electric power, Rs.8,000/- for aluminum window fittings and Rs.5,000/- for extra fittings in bathroom and thus paid Rs.1,61,820/- to the Developer for extra work. The Complainants requested the O.Ps on several occasions verbally and in writing for delivery of possession of the said flat but to no avail. Hence, the Complainants have filed the complaint case pray for direction upon the O.Ps to deliver possession of the flat along with car parking space (front side) as per agreement for sale dated 05.12.2009 and to execute deed of conveyance in favour of the Complainants within one month from the date of order, to award compensation to the tune of Rs.10,00,000/ for mental agony, harassment and financial loss, to award cost to the tune of Rs.20,000/-.
The O.P. Nos. 1 to 3 i.e. the developers entered appearance and contested the case by filing W. V. denying and disputing the material allegations levelled against them contending, inter alia, that on mutual discussion with the Complainants a second Agreement was duly executed on 05.12.2009 but with higher rate of consideration and it was agreed between the parties that upon making payment in full including the payment for extra work the developers were supposed to provide Completion Certificate and also the sanctioned plan to the Complainants. The developers have admitted that there is a clause in the agreement that if the delay occurs in construction work the Developer would be liable to pay penalty. The O.P. – Developers have further stated that during construction of the said flat the Complainants placed order for extra work to be done in the said flat for which some constructional works were to be effected. Therefore, prior permission from the Kolkata Municipal Corporation was required to obtain for those extra works, such as, an extra balcony, wider window, extra bathroom fittings etc. But in spite of effecting such changes as well as extra works the Complainants failed to keep their promise regarding payment of extra works for which the finished flat has been lying under custody of the developers. The O.P. – Developers specifically mentioned that just to put undue pressure upon the O.P. – Developers the Complainants have annexed certain bills claiming payment thereof which are not only untrue but also fabricated for minimizing the payment for extra work. However, the O.P. – Developers have expressed their willingness to handover the flat along with the car parking space as per Agreement subject to payment for extra work so effected in the flat. The O.P. – Developers have stated that the present petition is purposive for avoiding payment for extra work and, therefore, shall be dismissed with cost.
Parties adduced evidence followed by cross-examination.
In course of hearing of the argument Ld. Advocate for the Complainants has submitted that the O.P. Nos. 1 to 3 are the developers and the rest O.Ps are the landowners. The landowners by virtue of a development agreement dated 02.03.2008 empowered the developers to construct a multistoried building and by virtue of a general power of attorney executed in favour of the O.P. No. 2 empowered the said O.P. to contact with the prospective purchasers and to receive the consideration amount and to register the deed of conveyance in favour of the purchaser. Ld. Advocate has further stated that initially an agreement for sale dated 04.06.2008 was executed by and between the purchasers and developers at a consideration of Rs.15,50,000/- but subsequently, on 05.12.2009 a second agreement was executed by and between the said parties in respect of a flat of increased space at a consideration of Rs.17,25,000/-. Ld. Advocate for the Complainant has further submitted that as per terms of the second agreement the O.P. – developers agreed to deliver the possession of the said within six months from the date of the execution of second agreement. But, in spite of payment of Rs.17,67,500 i.e. the consideration amount of the flat plus extra cost for extra works and even in excess, the O.Ps neither delivered the possession of the flat nor did handover the completion certificate in respect of the property in question. In this regard Ld. Advocate for the Complainant referred the statement of the O.Ps as made in the W. V. filed by them regarding the modification of the flat in question as allegedly done as per instruction of the Complainants has submitted that no document regarding modification of the said flat has been filed so far before this Commission. Ld. Advocate for the Complainant has further submitted that the Complainants has served letter upon the O.P. – developers requesting delivery of possession of the said flat and to execute and register the deed of conveyance in favour of them but the O.P. – developers did not respond to it and subsequently after appearing before this Commission has taken the plea of non-payment of consideration amount, particularly, for extra work although the O.P. – developers have not stated the actual amount remained due payable by the Complainants towards the extra work. Ld. Advocate for the Complainants has specifically submitted that the O.P. – developers are to substantiate that the extra work has been done to such volume for which the complainant has not paid in full. Ld. Advocate for the Complainants has filed a payment sheet showing on which dates what amounts was paid to whom. In support of his contention Ld. Advocate for the Complainants has furnished the following decisions :-
(1) II (1996) CPJ 212 (NC) – Pushpa Builders Flat Buyers Association – vs. – Pushpa Builders Ltd. & Ors.
(2) 2012 (3) CPR 400 (NC) – Mr. I. D. Kaushik – vs. – The HEWO Urban Estate and Town & Country Planning Department Employees Welfare Organisation (HEWO) Through its Managing Director & Anr.
(3) 2008 CTJ 32 (CP) (NCDRC) – K. Uma Kant and others – vs. – First Flight Courier.
(4) 2007 (1) CPR 268 (NC) – Saibal Chakraborty & Ors. – vs. – Aparna Chatterjee.
In course of hearing of the argument Ld. Advocate for the O.P.- Developers has submitted that the case is standing on two aspects i.e. the legal aspect and the factual aspect. Regarding the legal aspect, Ld. Advocate for the O.P. – developers has submitted that the Complainants are interested to enforce the agreement dated 05.12.2009 but the same are suffering due to inadequate stamp. Therefore, the same can not be taken into consideration. Regarding the factual aspect, Ld. Advocate for the O.P.- Developers has submitted that
The complainants have not paid the entire amount for extra work done in the flat in question as per instruction of the complainants and therefore the O.P.- Developers did not deliver the possession of the said flat to the complainants.
In support of his contention the Ld. Advocate for the O.P. – Developers has relied on the following decisions :-
(1) 2011 (1) CLJ (Cal) – 115 – Sri Gautam Ghosh – vs. – Sri Mahim Chatterjee & Anr.
(2) 2002 WBLR (CPNC) 525 – Smt. Sakuntala Devi Agarwal & Ors. – VS. – S.P.A. Projections (India) & Ors.
(3) C.O. No. 1410 of 1999 with C.O. No. 1764 of 1999 – Dr.. Swapnadin Lahiri – vs. – Tridib Das Roy with Chitta Ranjan Jana – vs. – Arun Kumar Jana disposed on August 18, 1999.
(4) AIR 1999 Supreme Court 807 – Veena Hasmukh Jain and another – vs. – State of Maharashtra & Ors.
None was found present on behalf of the O.P. Land owners.
Points for determination :
(1) Whether the Complainants are the consumers under the O.P. – developers?
(2) Whether the O.P. – developers are deficient in providing service?
(3) Whether the Complainants are entitled to get the reliefs as prayed for?
Point No. 1.
Since the Complainants entered into agreement for sale with the O.P. – developers and thus hired their service against payment of consideration and paid towards cosideration they became consumer under the O.P. – developers.
Point No. 1 is decided accordingly.
Point Nos. 2 & 3.
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainants entered into an agreement for sale with the O.P. – developers in respect of the flat. Admittedly a second agreement for sale was executed by and between the parties on 15.12.2009 in respect of a flat and a car parking space as described under the schedule of the petition of complaint at a consideration of Rs.17,25,000/-. The Complainants contention is that in spite of payment of entire amount of consideration including payment for extra work in full, even in excess, the O.P. – developers neither delivered the possession of the said flat nor did execute and register the deed of conveyance in favour of them although the developers were supposed to do the same within six months from the date of execution of the second agreement. The Complainants specifically claimed to have paid the entire amount of cost for extra work done in the flat in question and in support of that claim they filed a payment list.
Ld. Advocate for the O.P. Developer files Brief Notes of Argument.
It is the contention of the O.P. – developers that the agreement for sale dated 05.12.2009 which the complainants relied on was not stamped adequetly, and, since the Complainants did not pay the entire amount the O.P. – developers did not deliver the possession of the flat. The O.P. – developers specifically stated that the extra works have been done in the flat in question as per instruction of the Complainants so the Complainants are liable to pay for the extra work but they did not pay for the same in full.
Admitted position is that the agreement for sale dated 05.12.2009 was executed by and between the complainants and the opposite party- developers and the complainants paid towards consideration amount to the O.P.-Developers. It appears that both sides rely on the terms of the said agreement even in alleging violation of the same by other side. Evidently, the O.P.- Developers admittedly entered into the said agreement and claimed to have acted upon the terms of the same but, later on disputed the same on the plea of inadequate stamp amount and wanted to resile therefrom. This is not permissible under law. Moreover, the O.P. Developers did not take the plea in their Written Version.
Now, the moot point is whether the Complainants paid the entire amount of extra work.
In support of their contention regarding the volume of the extra work done by the O.P. – developers the Ld. Advocate for the O.P. – developers filed the report of an LBS and relied upon the same. Being cross examined by the Complainants the said LBS replied he had been engaged by the O.P. No. 2 on the basis of a contract to survey the property in question. Further, it is on record that no notice has been served upon the Complainants regarding survey of the property in question. Therefore, it is evident that the said LBS has not been appointed under due process, and, accordingly, the report filed by the said LBS is not acceptable.
Further, the O.P.-Developers contented that the Complainants did not adduce evidence regarding the extra work in the flat in question. However, the O.P.- Developers have disputed the payment made by the Complainants stating that the amount paid by the Complainants is part payment towards extra work and the Complainants are liable to pay the balance amount and after receiving the same they will deliver the possession of the said flat and the car parking space to the Complainants. Since the O.P.- Developers claim to have done extra volume of work the onus lies upon them to prove the same. The O.P.- Developer wrongly shifted the same on the Complainants.
Therefore, there is no reason to disbelieve that the Complainants have paid entire amount for extra work.
In view of the discussion made hereinabove, we are of opinion that the O.P.- Developers have deficiency in service for non delivery of the flat in question within the stipulated period on the plea of demanding extra amount from the complainants for which they are liable to compensate the complainants and to pay the cost of litigation since their negligent act compelled the complainants to knock the door of this Commission. In our considered view the complainants will be compensated aptly if they get Rs.1,00,000/- from the O.P.- Developers and Rs.10000/- towards the litigation cost.
In the result, the complaint case succeeds.
Hence ordered,
That the complaint case being No. CC/26/2012 is allowed in part on contest against the op NO.s 1,2 and 3 with cost and dismissed ex parte against the rest opposite parties without cost. The opposite party Nos.1,2 and 3 are directed to deliver the possession of the flat and the car parking space as described under the schedule of the petition of complaint to the complainants and to execute and register the deed of conveyance in respect of the same in favour of them within two months from the date of delivery of this order failing which the complainants are at liberty to get the said flat registered in favour of them through the machinery of this Commission. The opposite party Nos.1,2 and 3 are further directed to pay the complainants Rs.1,00,000/- towards compensation and to pay Rs.10000/- towards litigation cost within two months from the date of delivery of this order failing which interest @9% p.a. will be accrued on the said amount from the date of default till realization in full.
