Judgment : Dt.24.5.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under Section 12 of C.P.Act, 1986 by Smt. Saraswati Das alleging deficiency in service on the part of the OPs – (1) M/s A. G. Construction, (2) Smt Karan Bala Bera, (3) Smt Anju Bera, (4) Smt. Bula Adhikary, (5) Smt. Sikha Bakshi and (6) The Asst. Director of Consumer Affairs and Fair Business Practice Dept.
Case of the Complainant in brief is that the Complainant being an unemployed lady intended to start a small business and thus entered into an agreement for sale on 17.7.2012 with the OP No.1 the Construction proprietorship firm in respect of a shoproom at premises No.985, Vidyasagar Sarani, Kolkata-700 063.
It was agreed by the parties that a shop room measuring about 80 sq.ft. on the ground floor of the building to be constructed by the OP No.1 within the above mentioned premises to be transferred in favour of the complaint for a consideration of Rs.2,00,000/-. The Complainant as stated that she had paid Rs.50,000/- to the OP at the time of executing the agreement for sale and thereafter paid a sum of Rs.1,00,000/- by cheque bearing No.617867 dt.19.8.2014 drawn on U.B.I. It is further stated that although she had paid Rs.1,50,000/- out of Rs.2,00,000/- still. The OPs were found very much reluctant to hand over possession of the said shop room. To redress her grievance, the Complainant made a representation to the Director of C.A. & FBP in respect of which notices were served upon the OP requesting him to appear before the Assistant Director of C.A. & F.B.A.; to settle the dispute but the OP did not turn up. Having no other alternative, the Complainant filed the instant complaint before this Forum and prays for a direction upon the OP No.1 to provide the shoproom, to pay interest as per the statutory rate for delay in handing over the shop room, to pay Rs.1,00,000/- towards compensation, to pay litigation costs.
The OP No.6, the Assistant Director, CA & FBP appeared and filed written version stating inter alia that the Complainant approached before his office for mediation but in spite of two successive attempts the OP did not turn up and hence the proceeding was dropped.
The OP No.1 has appeared and filed written version denying all material allegation save and except which are on record stating, inter alia, that the Complainant has defaulted in making payment of consideration since at Paragraph No.4 of page No.3 of the agreement dt.17.7.2012 it runs as “That the Purchaser hereto with the execution of this Agreement shall pay to the Developer/ First Party herein a sum of Rs.50,000/- (Rupees fifty thousand only, towards advance/ earnest money and or part payment out of total consideration of Rs.2,00,000/-(Rupees two lakhs) only the receipt of which the Vendor/ First Party doth hereby admit and acknowledge as per Memo hereunder written and the balance of the total consideration amount shall be paid by the Purchaser to the Developer/ First Party before the Registration and/ or possession of the Plot….”
However, he has stated that the Complainant paid Rs.50,000/- on the date of execution of agreement for sale and thereafter did not bother to pay further sum in time.
It is the specific defence of the OP Developer that the Complainant did not pay the consideration in stipulated time. Since she paid an amount of Rs.50,000/- on 17.07.2012 i.e. the date on which the agreement for sale was executed and subsequently, even after expiry of more than two years, the Complainant paid an amount of Rs.1,00,000/- on 19.05.2014 and since then paid nothing though the OP/Developer had been requesting her to pay the balance amount of Rs.50,000/- so that the shop room in question might be registered in favour of her. According to the OP Developer, as the Complainant defaulted in making payment of consideration in time the agreement for sale dt.17.07.2012 shall be treated as cancelled.
It is further stated by the OP Developer that since the Complainant showed her reluctance to get the said shop room registered in her favour the Developer made some changes in the building plan and, therefore, the shop room in respect of which the Complainant and entered into the Agreement for sale does not exists. Accordingly, the OP Developer prays for dismissal of the complaint case.
The Complainant adduced evidence on affidavit stating therein, inter alia, that the shop room in question exists presently.
In course of hearing, Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Points for determination:
Is Complainant a consumer under OP?
Is there any deficiency in providing service?
Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
All points are taken up together for the sake of comprehensive discussion and decision.
Admittedly, the Complainant entered into an agreement for sale dt.17.07.2012 with the OP Developer in respect of availing housing construction service in respect of a shop room to be constructed on the ground floor of proposed building at premises No. 985, Vidyasagar Sarani, Kolkata-700 063, by the OP Developers. Admittedly, the agreed consideration amount was Rs.2,00,000/- out of which the Complainant has paid Rs.1,50,000/- to the OP Developers. Thus the Complainant has become a consumer under the OP.
The Complainant has alleged that as per terms of the agreement for sale dt.17.7.2012 has already paid Rs.1,50,000/- and is willing to pay balance amount of Rs.50,000/- at the time of registration of the Deed of Conveyance but the OP Developers did not take any step at all to register the same in favour of her. On the other hand, the Developer has alleged that the Complainant defaulted in making payment since she had not paid the agreed amount as per stipulation of the agreement.
On perusal of the Agreement for sale dt.17.07.2012, it appears that at the last paragraph of page 4 and first two paragraphs of page 5 of the said agreement it is stated – “That the Purchaser hereto with the execution of this Agreement shall pay to the Developer/First Party herein a sum of Rs.50,000/- (Rupees fifty thousand) only towards advance/earnest money and/or part payment out of the total consideration of Rs.2,00,000/- (Rupees two lakhs) only the receipt of which the Vendor/First Party doth hereby admit and acknowledge as per Memo here under written) and the balance of the total consideration amount shall be paid by the Purchaser to the Developer/ First Party before the Registration and/ or possession of the Plot in the following manner:-
Paid Rs.50,000/- (Rupees fifty thousand) only as advance money Booking money this day i.e. Execution of the Agreement.
Paid Rs.50,000/-After 1st floor roof casting.
Paid Rs.50,000/-On the completion of shop room
Paid Rs.50,000/-On delivery of possession & registration
4. That the Developer/First Party hereto undertake to handover and deliver the peaceful khas possession of the said property (as mentioned in the Second Schedule) unto and in favour of the Purchaser or his nominee or assignee within a stipulated period i.e. 24 (Months) (730)days from the date of this Agreement and / or execution of Deed.
It is evident therefrom that no date is mentioned for payment of consideration in installments. Moreover, the OP Developer received the amount of Rs.1,00,000/- paid by the Complainant towards consideration without raising any objection and therefore, he is estopped by conduct to raise any objection afterwards regarding the said payment.
Further, the last installment is payable at the time of execution and registration of Deed of Conveyance. The Complainant has expressed her willingness to pay the same at the time of execution and registration of the Deed of Conveyance. Hence, the Complainant cannot be considered as a defaulter.
However, in spite of receiving the consideration as per stipulation, the Developer did not take any step of registration of Deed in favour of the Complainant and it is a glaring example of deficiency in service.
The Complainant has prayed for delivery of possession as well as execution and registration of Deed of Conveyance in respect of the shop room in question. The Complainant entered into an agreement for sale and paid consideration amount in part and in accordance with the term of the agreement, ready to pay the balance amount of consideration of Rs.50,000/- at the time of registration of Deed of Conveyance. This prayer is quite reasonable and we allow it.
The Complainant has prayed for awarding compensation to the tune of Rs.1,00,000/- since the delay in delivery of possession made her to suffer from loss of earning livelihood. In the instant case it is evident that the OP Developer is still very much reluctant to hand over possession of the said shop room. We think, it will be just and proper if the OP Developer pays Rs.50,000/- towards compensation to the Complainant for delay in delivery of the possession of the said shop room.
The OP Developer compelled the Complainant to file this case and therefore he is liable to pay Rs.10,000/- towards cost of litigation to the Complainant.
In the instant case, the Complainant unnecessarily made the Assistant Director, CA & FBP as a party. The Assistant Director is released and his name shall be expunged.
In the result, the consumer complaint succeeds in part.
Hence,
ordered
The Consumer Complaint being No.CC/445/2016 is allowed on contest against the OP No.1 with cost of Rs.10,000/- and ex-parte against the OP Nos.2 to 5 without cost.
The OP No.1 is directed to deliver possession of the shop room situated at premises No. 985, Vidyasagar Sarani, Kolkata-700 063, on receiving Rs.50,000/- from the Complainant. The OPs are directed to execute and register Deed of Conveyance within one month from the date of this order.
The OP No.1 is further directed to pay Rs.50,000/- towards compensation within the aforesaid period.
The OP No.1 is furthermore directed to pay Rs.10,000/- towards costs of litigation within the aforesaid period.
Since both parties are directed to pay Rs.50,000/- each other, they may amicably drop this payment. The OP No.1 to pay only Rs.10,000/- towards costs.
In the event of non-compliance of this order or any part thereof the Complainant may execute it by filing execution application.
