Date of filing: 26.03.2019

Judgment date: 30.11.2022

Mrs. Sashi Kala Basu, Hon’ble President

This consumer complaint is filed by Shri Sumit Bhowmick U/s. 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as O.P.s hereinafter) namely (1) M/s. Nirma Construction (2) Krishnendu De Sarkar and (3) Smt. Rina Sengupta alleging deficiency in service on the part of the opposite parties.

Case of the complainant in short is that O.P. No. 1 is a Proprietorship Developer Firm represented through its sole proprietor O.P. No. 2. O.P. O.P. No 3 is the owner of the land being premises no. 43, Sreerampore Road (N), Garia, Kolkata – 700 084. By a development agreement dated 25/02/2000, the predecessor is interest of the O.P. No. 3 and the O.P. No. 1 & 2 agreed to develop the said property by raising the Multi Storied Building and accordingly the predecessor is interest of the O.P. No. 3 during his life time also executed a general power of attorney in favour of O.P. No. 2 the developer. Consequently complainant by an agreement for sell dated 11/10/2011 agreed to purchase a flat measuring more or less 750 sq. ft. super built up area on the 1^st floor, South Western side of the proposed 3 storied building from the O.P. developer at a total consideration price of Rs. 16,50,000/-. Complainant has paid Rs. 16,00,000/- out of the said total price and O.P. No. 2 has duly acknowledged receiving of the said sum. As per the mutual discussion with the developer the complainant has also paid a further sum of Rs. 80,000/- to the O.P. No. 2 on account of the extra work done by O.P. No. 2. But O.P. No. 2 has not completed the construction work as yet. According to the terms of the agreement dated 11/10/2011 the opposite parties are under obligation to hand over the possession of the said flat and also to execute and register the deed of conveyance in favour of the complainant within the stipulated period of 5 months on payment of the balance consideration amount of Rs. 50,000/-. But in spite of several requests by the complainant to the O.P. No. 2 to deliver the possession and also to execute and register the deed of conveyance the same has not been done. Opposite party No. 2 the developer on several request, only handed over a possession letter on 09/07/2014 to the complainant and promised to deliver actual physical possession of the said flat after completing the construction and making it in a habitable condition but actual possession of the flat has not been handed over nor the completion certificate as per building sanctioned plan has been handed over to the complainant by the opposite party. The complainant has also taken House Building Loan and he has been paying monthly EMI to refund the said loan. A legal notice was sent by the complainant to the O.P. for handing over of the possession and for execution of the deed but since all in vain, the present complaint has been filed praying for directing the O.P. No. 1, 2, 3 to deliver peaceful vacant and khas possession of the  flat in habitable condition to the complainant, to execute and register the deed of conveyance, to hand over the building completion certificate, to pay compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/-. 

O.P. No. 1 & 2 on receipt of the notice appeared and filed the written version denying the allegation containing inter-alia that the O.P. has already handed over the flat in question to the complainant and accordingly a possession letter dated 09/07/2014 has also been issued to the complainant which is self-explanatory. The opposite parties have always been ready and willing to join the owners as confirming party in the execution and registration of the deed of conveyance in favour of the complainant. So the O.P. No. 1 & 2 have prayed for dismissal of the case.

O.P. No. 3 the land owner has also filed a written version in the form of letter addressed to this commission containing inter-alia that she has no knowledge about any agreement between the complainant and the developer. Developer has also not handed over the owners’ allocation. She has received a letter sent by the Advocate of the developer stating that her husband namely Gurupada Sengupta has sold the entire premises at a consideration money of Rs. 40,00,000/- to one Mritunjoy Patra but she has no knowledge about such sale.

On perusal of the record it appears that after filing of the written version, O.P. No. 3 did not take any step. O.P. No. 1 & 2 also did not file any questionnaires. After examination in chief was filed by the complainant, neither any questionnaire was filed nor any evidence was filed by the O.P. No. 1 & 2. So ultimately the case has been fixed for arguments. The complainant only filed the BNA and also advanced arguments but the contesting O.P. did not take any step.

So the following points require determination:-

1. Whether there has been any deficiency in rendering service on the part of the opposite parties.
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

Both the point are taken up for a comprehensive discussion in order to avoid repetition. At the very outset it may be pertinent to point out that in this case, it is an admitted fact that an agreement for sale was executed between the parties i.e. O.P. No. 1 being represented by O.P. No. 2 and the predecessor is interest of O.P. No. 3 and the complainant on 11/10/2011. It is also an admitted fact that an amount of Rs. 16,00,000/- out of total consideration price of Rs. 16,50,000/- has been paid by the complainant and he has further paid Rs. 80,000/- towards extra work done by the developer. The dispute mainly is whether the complainant has been handed over the possession of the flat by O.P. developer? According to the complainant actual possession of the subject flat was not handed over and only a possession letter was handed over to the complainant on 09/07/2014 by the O.P. developer which is denied by the O.P. and has specifically contended that the possession was already handed over to the complainant as evident from the possession letter itself.

On perusal of the possession letter which is relied upon by both the parties, it appears that the same is not only signed by the O.P. developer but also by complainant acknowledging receiving of the Flat which was handed over by the said letter. It bears the endorsement by the complainant “received on 09/07/2014”. So the said possession letter is very categorical that the flat in question was already handed over. According to the complainant, some construction work was still pending and for the said unfinished work, the actual possession of the flat was not handed over. But it is strange that the complainant has nowhere in the four corner of the complaint has stated about the nature of unfinished work. On the contrary it is his own case that some extra work was to be done for which he paid of Rs. 80,000/- to the developer. It appears from the Annexure ‘C’ filed with the complaint that the same describes the extra work to be done and the document is dated 20/10/2013. So for the said extra work bill was raised on 20/10/2013 and accordingly payment was made. If that be so, since possession was delivered on 09/07/2014 as per the possession letter than the same is nearly after 9 months of the said extra work, bill raised and paid by the complainant. So since possession letter was issued on 09/07/2014, it can safely be presumed that the possession was handed over after the said extra work was completed. If the work was not done till the date of handing over possession than it was but natural that the complaint would not have accepted the said letter of possession by signing therein. Apart from this the complainant remained silent for nearly 5 years from issuance of the said possession letter and there is absolutely no documents filed by the complainant asking O.P. developer that he had not yet completed the unfinished work. This case has been filed in the year 2019. Complainant has not explained as to why he remained silent for nearly 5 years if actual possession was not delivered on the date of issuance of possession letter. So in such a view of the matter, the claim of the complainant that the possession of the subject flat was not actually handed over to him, cannot be accepted. It will not be out of place to mention here that the complainant has also filed a petition during the pendency of this case to appoint an engineer commissioner to measure the flat whether it is 750 sq. ft. or it was less. If according to the complainant the possession of the flat was not handed over than it is not clear as to how he could realized that there was short fall of area. The said petition to appoint an engineer commissioner was however rejected as there was no case in the original complaint filed by the complainant regarding the shortfall of area. So the complainant is not entitled for direction to handover the possession of the subject flat as documents speaks that the possession was already delivered.

Now coming to the relief as to execution and registration of the deed in favour of the complainant in respect of the subject flat, admittedly the deed has not been executed and registered. O.P. No. 3 has taken plea in the said letter sent by her that she has received developer’s Advocate’s letter that her husband has sold entire premises to one Mritunjoy Patra but in support of the said claim, there is absolutely no material before this commission. Even the developer has not stated any such fact in his written version. So the facts as stated in the said letter by the O.P. No. 3 about sale of the entire premises being devoid of any merits, same is rejected.  

Complainant has also claimed compensation. Since the complainant has to pay the registration fee as per the present market value, he is entitled to sum of Rs. 50,000/- from OPs as compensation and litigation cost of Rs. 10,000/-. 

Hence,

            ORDERED

CC/196/2019 is allowed in part on contest against O.P. No. 1 & 2 and exparte against O.P. No. 3. Opposite parties are directed to execute and register deed of conveyance in favour of the complainant in respect of the flat as per agreement dated 11/10/2011, within two months from this date on payment of balance consideration price of Rs. 50,000/- by the complainant to the O.P. / developer. OPs are further directed to pay compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months.