JUDGEMENT Complainant by filing this complaint has submitted that he booked a flat of the Larica Estates Ltd. being Flat No. 602 in Block No.33, at Larica Township on Barasat-Barrackpore Road, Opposite Loknath Mandir 24, Parganas(North), P.S.-Barasat by paying Rs.25,000/- and accordingly his application was executed and flat allotment registration has been made being Registration No.A-2276 and as per said agreement possession shall be given within one year i.e. by 31.12.2009. But due to delay of starting construction and availing Larica’s payment (special) scheme complainant paid Rs.3,54,000/- and balance amount dues Rs.74,550/- plus cost of 300 sq. ft. roof for Rs. 90,000/-. But fact remains that op since August-2011 stopped to receive payment in the computer system. Subsequently on 28.03.2013 complainant sent a letter urging for completion of basic requirements for residing the flat but they did not reply and simply ignored. Lastly on 30.04.2013 and 29.07.2013 complainant handed over cheques for due payments but for an unseen reason and as per advise of the Manager of op’s office refused to accept that payment. But complainant always ready to pay of Rs.1,64,450/- including the cost of 300 sq. ft. roof area plus the due Govt. service tax of Rs.4,754/- as calculated. But under any circumstances, op cannot charge any late fine charge as claimed. But truth is that as yet the possession has not been handed over, not also on 31.12.2009. But in the mean time more than three years lapsed and complainant has faced many troubles and when op has failed to give possession as per allotment agreement, there is no provision for compensation as per order of the Competition Commmission of India (CCI) as published in the Times of India dated 17.08.2011 and in the above circumstances complainant has prayed for directing the op to complete the incomplete work of the flat and to receive balance amount and to execute sale deed in favour of the complainant when negligence and deficiency on the part of the op is well proved. On the other hand op by filing written version has submitted that the case is not maintainable and barred by limitation but admitted that complainant booked the flat long before and paid application and allotment money on 31.12.2008 and the complainant was supposed to pay the balance amount of Rs.4,93,450/- in 12 equal installments of Rs.41,121/- each, subsequently upon the written request of the complainant, op agreed to accept payment of Rs.7,700/- per month and complainant lastly paid such EMI of Rs.7,700/- long ago on 08.07.2011and since then the complainant did not pay any more EMIs, despite the several reminders of op. So, the allegation of stopping receiving the payment by op does not arise at all and complainant willfully stopped paying the dues and to fill up his lacunae put up the false story. It is further submitted that agreement for sale dated 27.01.2009 was duly signed by both the parties. It is further submitted that complainant has already been notified by the op that the allotment of flat in question in Clause-13 of the terms and conditions of the allotment and within stipulated period the amount had been refunded to the complainant in form of Account Payee cheque, vide a letter dated 17.07.2013, the said letter together with aforesaid cheque was sent through Speed Post to the complainant on 17.07.2013 and same was duly received by the complainant on 18.07.2013. The complainant suppressed the above facts before the Ld. Forum and the instant case is an outburst of complainant and repercussion of said letter dated 17.07.2013 and for the above reason, the complainant cannot claim any relief when the allotment has been cancelled and amount has already been refunded by cheque. But complainant has not answered against that letter. Decision with reasons On proper study of the complaint and the written version and also considering the argument as advanced by the Ld Lawyers of both the parties and further complainant hearing personally by this Forum and evaluation of the document, undisputed fact is that complainant has paid Rs.3,54,000/- out of total amount of the flat i.e. Rs.4,51,000/-. It is also fact that as per agreement the construction work had not been completed within one year i.e. by 31.12.2009. though the agreement was executed on 31.12.2008 and after considering the materials as produced by the op, it is clear that op failed that when the said flat due to several complications faced by the op from West Bengal State Electricity Distribution Company Limited (WBSEDCL) and also from Pollution Control Board, Govt. of West Bengal and fact remains for construction of sub-station, WBSEDCL demanded huge amount for construction of sub-station that was paid. Thereafter the sub-station was constructed and for such reasons op failed to complete the said project and also the present flat. But it is the settled principle of law that possession must be handed over to the flat owners when all amenities and avenues are completed for enjoying the said flat by the flat owners after taking possession. Truth is that op failed to deliver the possession within one year for its belated stage because there was a clause in the agreement that allotment of flat may be delayed for the Force Magure Clause and in the present case no doubt the Force Magure Clause is well established and it is also evident that op reported the mater to all the flat owners that it was not possible for individual flat owners to arrange electrification and it was the liability of the op to arrange the same and for which op was compelled to pay huge amount and ultimately completed the flat by installing sub station. Thereafter op sent letter with Registered Post with A/D to the complainant for taking possession and for clearing up the balance dues. At that time complainant was silent. Thereafter op ultimately sent a letter on 17.07.2013 stating that complainant did not comply the conditions and terms of the agreement for which the agreement is cancelled and a cheque amount of Rs.2,45,000/- being cheque No.408049 dated 17.07.2013 drawn on Axis Bank was sent to the complainant and from the said letter, it is clear that it was received by the complainant. But anyhow complainant is very much silent about the letter and also his evidence. But equally it is true that complainant at the time of advance of the arguments submitted that probably that letter was lost and it is not within his knowledge because might be some family members received it but whatever it may be the letter was received by the complainant’s wife because complainant works at some other places. But considering the whole dispute we find that for some obvious reasons complainant did not pay the said balance amount only on the ground that he did not get the same within one year. But considering the complaint of his own, it is found that the complainant had no capacity to pay the said amount within one year for which he prayed for one scheme so that he may pay the amount by more than EMIs and that is proved and op granted such relief to the complainant but complainant even then failed to comply the same. But it is equally true that op failed to complete the flat even after 2011 because from different corners objections were raised and op faced all those objections of different government departments and ultimately completed the flat. It is equally true that many other flat owners already took possession and the flat has been registered. But complainant’s cause of action arose probably after receipt of that letter by which op declared that agreement has been cancelled and a cheque was sent to the complainant. But whatever it may be fault was on the part of both sides and equally both are at fault for non-maturity of the entire matter related to this agreement. But fact remains complainant has already paid 75% of the entire amount and no doubt in the meantime some maintenance charges and other charges shall be charged by the op and that charges must be paid by the complainant. So to avoid such payment complainant appeared before this Forum. No doubt the op has alleged that they are liable to charge some penalty for delayed payment and deferred payment and for not paying the balance amount as yet, not even after filing of the complaint. But in this regard considering the RBI Rules, we have gathered that any authority cannot charge any interest in respect of the housing loan or other or in respect of any price of a flat or a house more than the RBI Regulated percentage on interest as assessed in case of any housing loan. Anyhow complainant ought to have sent such a letter to the op but that had not been done and now it is proved that both are very much arrogant and no doubt in the meantime the price of the flat has been increased. So, op is trying to avoid registration, avoid delivery of possession and also trying to avoid this complainant so that he may sell the flat to third party at a higher rate. But we have gathered that the op has no authority to cancel the said agreement after receiving 75% of the total amount and in view of the above fact we are of opinion that the letter dated 17.07.2013 is arbitrary in nature and op has no right to cancel the same by filing any case. But regarding sending the cheque bearing No.408049 dated 17.07.2013 for a sum of Rs.2,45,800/- we find that the said cheaue has not been encashed by the complainant. But invariably complainant must have to handover the said cheque to the op at once and at the same time to materialize the entire matter, we find that complainant must have to pay balance amount along with other charges except any interest which will be fixed by the op and op after receipt of the same shall have to handover the possession to the complainant after completion of the flat and for that complainant shall have to pay service tax as government rate on proper receipt and further complainant shall have to pay annual maintenance cost for last one year because possession has not yet been given to the complainant and it is the settled principle of law that annual maintenance cost only to be paid by the flat owners who have got the possession of such flat with all amenities and avenues as because up to this complainant has not got this possession of the flat. So annual maintenance cost for last one year shall be paid by the complainant on the very date of taking possession and on very date of registration of the flat in respect of the flat and so the complainant is entitled to get such relief for getting possession of the flat on payment of all the charges and balance dues to the op within two months from the date of this order and invariably op shall have to hand over the possession after getting balance amount and other charges and for that purpose after passing of this judgement, op shall have to send a detail of his claim to the complainant and complainant on receipt of the same within one month to clear the amount to the op on proper receipt from the op and thereafter op shall have to execute the sale deed within one month from the date of receipt and in the meantime complainant shall have to take all such steps for preparing the sale deed and registration cost and other costs shall be paid by the complainant. Accordingly we allow this complaint with such order against the op. Hence, it is ORDERED That the complaint be and the same is allowed on contest against the op with cost of Rs.3,000/-. Parties are directed to comply the spirit of the order as noted in the body of the judgement. Op is directed to handover the possession of the flat as described in the allotment letter to the complainant after receiving balance consideration amount including other charges and to that effect op shall have to send the detail demand letter to the complainant and complainant shall have to pay it on the date of payment and the possession shall be handed over by the op to the complainant and thereafter op shall have to execute and register the sale deed and in this regard regarding registration and execution all costs shall be borne by the complainant. But the entire matter shall be completed within three months from the date of this order and if op failed to comply the order within that period and if complainant pays such amount as already ordered in that case ops shall have to pay punitive damages of Rs.300/- per day till full satisfaction of the decree and even if op is reluctant to comply the order of this Forum in that case op shall be prosecuted u/s 27 of C.P. Act 1986 and for which further penalty of Rs.10,000/- shall be imposed and even if reluctant attitude of the op is proved then further penal action shall be taken. But invariably complainant shall have to comply his part and if complainant fails to comply it in that case op shall have no liability to comply the other portion of the order. So both the parties are directed to comply the order very strictly.
| | [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | | 
