HON’BLE MR. JUSTICE ISHAN CHANDRA DAS,PRESIDENT
This is a Complaint Case U/s 17(1)(a)(i) of the Consumer Protection Act, 1986 wherein the complainant-cum-intending purchaser of a flat and car parking space prayed for direction upon the OP no.1/Developer to hand over actual physical possession of the flat, car parking space and completion certificate as per schedule of the Petition of complaint.
Briefly stated, the case of the complainant was that the OP NO.4 purchased the property measuring 2 cottah 2 chitak 22 sq.ft. referred to Schedule A of the Petition of complaint and he entered into an agreement with the OP NO.1/Developer for development of such plot by an agreement dated 27.4.2012 and pursuant to the said agreement for development, the OP NO.1/Developer was empowered to develop the said plot , construct flats and car parking space, to hand over the owners’ allocation and to sell out other flats to the outsider/intending purchasers and it was agreed upon that the owners shall convey the proportionate share of land along with the respective flat to the purchaser as and when the Developer would request to do so. The OP No.1 being the Developer constructed a building (G+3 storied) upon the said plot of land as per Schedule A and after full completion of the building made it habitable.
The complainant with a view to purchasing a residential flat in the said building entered into an agreement for sale with the Developer/OP No.1 on 3.3.2013 and in terms of the said agreement the OP No.1 agreed to sell out a flat being no. A-2 measuring 1050 sq.ft. super built up area on the entire second floor of the building together with car parking space measuring 100 sq.ft. described in a Schedule-B for a consideration of Rs.26,50,000/- (Rupees twenty six lakh fifty thousand) with all the rights over the common area, facilities for convenience and proportionate undivided impartible share and interest in the land of the said premises. It was agreed that the Developer shall make over possession of the said flat within 15 months from the date of execution of the agreement. During the period of construction the complainant requested the OP NO.1 to complete the construction of the said flat and car parking space in the building as the complainant was on the verge of his retirement and he had to leave office quarters at NELCO Township , Orissa and as per request of the complainant, the OP NO.1 assured the complainant that they would make over possession of the said flat in February 2014, but ultimately the OP No.1 did not keep his promise to make over possession of the flat and the car parking space as well as to provide the completion certificate . The complainant on several occasions requested the OP No.1/Developer to hand over possession of the flat and ultimately on 12.4.2014 the OP NO.1 delivered possession of the said flat which was not fully finished at that relevant point of time and on being asked about the car parking space, the OP No.1 replied that there was a mistake regarding allotment of car parking space and it cannot be made clear prior to the registration of the flat. The complainant requested the Developer/OP no.1 to resolve the dispute with regard to car parking space at the earliest so that he could park his car and make arrangement for execution and registration of the Deed of conveyance on completion of the pending work. The OP NO.1/Developer assured to complete all the pending works, to execute and register the Deed of conveyance along with resolving the dispute with regard to car parking space at the earliest but it was not done as per undertaking. A notice was served upon the OP No.1/Developer for getting all the reliefs he deserved but such letter was returned to the complainant with the endorsement “refused”. The complainant was always ready and willing to purchase the flat and performed the obligation on his part but the Developer was reluctant to execute and register the Deed of conveyance and to hand over the possession of the car parking space as agreed upon between them, though the complainant paid the entire consideration as per terms of agreement between them but non-fulfilment of the terms of agreement by the OP no.1 save and except possession was delivered in favour of the complainant on 12.4.2014 , no other reliefs were given to the complainant despite repeated requests on 30.1.2015, 18.2.2016 etc. Such inaction on the part of the OP NO.1/Developer being detrimental to the interest of the complainant forced him to take recourse of this Commission for claiming reliefs, as referred to in the earlier part of the judgment.
The OPs no.1 ,2 and 3 filed a joint Written version to contest the Complaint case, contended that the complainant case was not maintainable in law and the same was hit by law of limitation. Denying and disputing all the material allegations, as contained in the body of the application, the OPs No. 1 to 3 contended that the OP No.4 was the absolute owner of the property in dispute measuring 2 cottah 2 chitak and 22 sq.ft. as referred to in the schedule of the Petition of complaint. Admitting the factum of agreement between the complainant and the OPs no. 1 to 3, these OPs categorically admitted that the complainant entered into an agreement for purchasing the flat no. A-2 situated on the entire 2nd floor of the building with super built up area measuring 1050 sq.ft. together with car parking space measuring an area of 100 sq.ft. on the ground floor, adjacent to the southern side of the stair case, for a total consideration of Rs.26,50,000/-(Rupees twenty six lakh fifty thousand) and as per such agreement the facilities of all rights over the common areas along with undivided proportionate share of the land etc were also included. The OPs herein stated that the concerned flat and the car parking space had been delivered to the complainant on 12.4.2014 before the schedule date. Denying and disputing the allegations with regard to inaction for execution and registration of the Deed of conveyance in respect of the said flat and car parking etc., these OPs claimed that they were always ready and willing to perform their part but due to malafide intention of the complainant, the instant case was filed by him. The OP No.4 being the land owner did not have any interest to deal with the matter with the complainant and he did not have any role to play in all the negotiations of dealing in respect of the sale of the Developer’s allocation, and ultimately all the OPs prayed for dismissal of the Complaint case.
Fact remains, the OP NO.4 entrusted the OP No. 1 to 3/Developers to develop the plot in dispute and the complainant being a stranger purchaser entered into such agreement with the Developers i.e. OPs no.1 to 3 herein, to purchase the 2nd floor of the G+3 storied building measuring 1050 sq.ft. having three bed rooms, one drawing cum dining room, one pantry , two toilets , one verandah and a car parking space measuring 100 sq.ft. situated on the ground floor, adjacent to the southern side of the stair case of the building (as referred to in the schedule B of the agreement, page 10). It is not in dispute that the total consideration of the said flat and car parking space was Rs.26,50,000/- (Rupees twenty six lakh fifty thousand) and the OPs never claimed that the complainant was defaulter in paying such consideration, as per agreement. Now the dispute between the parties cropped up when the complainant claimed possession of the 100 sq.ft. car parking space at the place where the OPs No. 1,2 and 3/Developers intended to hand over the same in favour of the complainant as per agreement dated 3.3.2013.
Ld. Counsel for the parties in course of their respective arguments did not raise any dispute with regard to factual aspects of the matter rather they stated with all fairness that the complainant would be entitled to 100 sq.ft. car parking space on the ground floor adjacent to the southern side of stair case of the building. The schedule of the agreement clearly reflected that the complainant would be entitled to undivided share of land and all common rights and common service, fixtures and fittings , electrical installation etc. as mentioned in the Schedule-C of the agreement and taking into consideration the facts of the case we are of the view that the claim of the complainant cannot be denied at all, rather the OPs no.1,2 and 3 are legally bound to execute and register the Deed of conveyance in respect of the property referred to in the Schedule B and C of the Agreement dated 3.3.2013. It is pointed out that before institution of the Complaint case possession of the property i.e. flat A-2 was delivered in favour of the complainant and one car parking space on the ground floor adjacent to the southern side of the stair case of the building measuring 100 sq.ft. and that was accepted by the complainant with full satisfaction which is reflected in the letter of possession dated 12.4.2014. In the background, the only direction should be given to the contesting/principal OPs/Developers to execute and register the Deed of conveyance in respect of the flat and to show the demarcated portion of the car parking space measuring 100 sq.ft. (repeat one hundred sq.ft.) beside the southern side of the stair case, to hand over the completion certificate of the building , to cooperate in the matter of obtaining electric connection from the line of the WBSEDCL, for installation of separate domestic meter etc. and to make the space habitable on completion of unfinished works, if any, the land owner shall be a confirming party to the deed and taking into consideration the facts and circumstances of the case we simply dispose of the Complaint case with the above directions of fulfilment of the terms. The cost of registration of the deed shall be borne by the complainant. We do not pass any order with regard to compensation or cost of litigation. The entire process as per above direction shall be completed within sixty days from the date of the order. In default, the complainant shall be at liberty to get the Deed executed through the agency/machinery of this Commission and shall take car parking space accordingly.
