ORDER
(Passed this on 14th March, 2017)
Shri Shekhar P. Muley, President.
01. This is a complaint of deficiency in service for not executing sale deed of the plot by the Opposite Parties.
02. Opposite Party No.-1 is a registered partnership firm by name M/s P.K. Builder and Developers and engaged in business of development of land and construction of apartments. The Opposite Party No.-2 is owner/vendor of flat. The complainant has booked a flat No. T-3 in the scheme Kavita Apartment developed by the Opposite Party at Vaishali Nagar, Nagpur. The complainant and Opposite Party executed an agreement on 29/4/2000 for Rs. 2,85,600/-. The complainant has paid Rs.2,92,000/- to the Opposite Party with water, electricity charges, stamp duty and registration charges. It was the duty of the Opposite Party to obtain necessary certificate from concerned offices for executing sale deed. When a notice was given to the Opposite Party, they claimed Rs.35,604/- as outstanding amount, though he has paid full amount and possession of the flat is also handed over to him. The Opposite Parties have adopted unfair trade practice and made deficiency in service by not executing sale deed in spite of receiving full amount. Hence he has prayed to direct the Opposite Parties to execute sale deed of his flat and to pay compensation of Rs.3.50 lakh for harassment and cost Rs. 20,000/-.
03. Opposite Parties filed reply at Ex.8 and stated that the complaint is barred by limitation and absence of cause of action. It is stated that the complainant has purchased the flat for commercial purpose and he is not residing in it. It is also denied that he made payment of Rs. 2,92,000/- to them. No stamp duty, electricity and water charges, and registration charges are paid. He made breach of payment schedule. Therefore sale deed could not be executed. They are ready to execute sale deed if he pays balance amount demanded from him vide notice dt /25/8/2004. There is no unfair trade practice or deficiency in service from the Opposite Party, but the complainant himself is at default. As such, it is prayed to dismiss the complaint.
04. Heard Ld counsel for the complainant. None appeared for Opposite Parties. Perused documents and notes of
argument. Upon considering the same we record our findings and reasons as under.
FINDINGS AND REASONS
05. It appears from the reply of the Opposite Parties that the complainant has not paid some amount for stamp duty, registration, electricity, water charges, etc despite written demand and therefore sale deed could not be executed. This appears to be the only dispute between the parties. The complainant says he has paid all the additional charges besides full consideration of the flat. It is also contended by the complainant that possession of the flat is also delivered to him and he has been residing therein. But this has also been denied by the Opposite Parties. According to them he is residing at different locality.
06. The complainant has produced copy of possession letter, receipt of electricity payment, corporation tax notice and payment of tax receipt to show his actual possession of the flat. These documents are enough evidence of his residence in the flat as these documents pertains to the flat No. T-3. In corporation record the flat still is in the name of NIT and the Opposite Party and the complainant is shown in possession of it. That is obvious because ownership is yet not transferred by sale deed. We are satisfied by these documents that the complainant is occupying the flat. This negatives the Opposite Party allegation that he is residing in other locality.
07. Now, it is to be seen whether the complainant has paid all other charges as averred by him. Before that, if agreement of sale is perused we find that it was a tripartite agreement among the Opposite Parties and complainant. It is mentioned that the Opposite Party No.-2 is the partner of Opposite Party No.-1 firm, but this cannot be a partnership firm as besides Opposite Party No.-2 there is no other partner. There must be minimum two persons to form partnership. So the Opposite Party No.-2 at the most can be a sole proprietor of Opposite Party No.-1 firm. As per agreement the total consideration of the flat was Rs.2,85,600/-. The purchaser was to bear electricity and water charges, stamp duty, registration fees and other incidental expenses in addition to cost of the flat. The complainant has produced a statement of payment to the Opposite Party which shows Rs.2,92,000/- was paid, i.e. Rs.2,400/- more than cost of the flat. Out of this amount, he paid Rs.72,000/- and rest amount Rs. 2,20,000/- was paid by HDFC Bank from whom loan was taken. Bank letters are filed on record. The Opposite Parties though denied payment of this amount, further stated that it was not paid as per schedule. But in any case the amount has been paid and possession was delivered. The Opposite Parties have not explained how much amount is still outstanding against him. The Opposite Parties further stated that he had sent notice dt/ 25/8/2004 to him demanding balance amount. Perusal of it would reveal that the Opposite Parties have admitted payment of Rs.2,70,000/- and Rs. 15,600/- was shown outstanding. But from the bank statement it is clear that a sum of Rs. 2,92,000/- was paid to the Opposite Parties. The Opposite Parties demanded him to pay Rs. 38,604/- on account of balance consideration Rs.15,600/- 20% interest Rs.8740/- on late payment, and incidental charges Rs.11,264/-. Since we have held that the consideration amount has been paid and received by the Opposite Parties, interest for late payment cannot be levied. So an amount of Rs.15,600/- and Rs.8740/- , total Rs. 24,340/- will have to be deducted and total outstanding amount comes to Rs. 11,264/-. The complainant has paid Rs 2,400/- more than flat cost, so he is at the most required to pay Rs.8864/- to the Opposite Parties for incidental charges.
08. Regarding other objections taken by the Opposite Parties as to limitation and absence of cause of action, we hold that there is no bar of limitation as cause of action is continuous as he has paid full cost of the flat and is in possession of it. The Opposite Parties could not explain how there is no cause of action to file the complaint. There is no
evidence that the flat is purchased for commercial purpose. Thus all objections are not worthy of credence.
09. The complaint is thus deserves to be allowed. Hence the order.
ORDER
- The complaint is partly allowed.
- The Opposite Parties are directed to execute sale deed of Flat No. T-3 of third floor in Kavita Apartment as described in the complaint.
- The complainant shall pay Rs.8864/- (In words Rupees Eight Thousand Eight Hundred & Sixty Four only) to the Opposite Parties towards incidental charges.
- The Opposite Parties are further directed to pay compensation of Rs. 10,000/- ( In words Rupees Ten Thousand only) for harassment and litigation cost Rs.5000/- (In words Rupees Five Thousand only) to the complainant.
- The order shall be complied by the Opposite Parties within 30 days from receipt of copy of the order.
- Copy of the order be given to both the parties, free of cost.
>3. The Opposite Party is further directed to pay compensation Rs. 7000/- (In words Rupees Seven Thousand only) for harassment and litigation cost Rs.3000/- (In words Rupees Three Thousand only) to the complainant.
- The order shall be complied within 30 days from receipt of the order.
- Copy of the order shall be given to both the
parties, free of cost.
