DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 505/2014
Date of Filing: Date of Admission Date of Disposal:
08.09.14 08.09.2014 28.05.2015
PETITIONER = Vs. = O.Ps.
Sri Soumen Saha, 1.M/s. Kamala Construction Pvt. Ltd,
S/o. Sri Nripendra Lal Saha, Gokulnagar, Rabindranath Tagore Rd,
7, Rani Rashmoni Nagar, P.O. Panihati, P.S. Khardaha,
P.O. Sodepur, Dist- North 24 Parganas.
P.S. Khardaha, 2. Sri Om Prakash Singh,
Dist- North 24 Pgs, S/o. Late Kamala Singh,
Kolkata-700110. 3. Smt. Mina Singh,
W/o. Sri Om Prakash Singh,
Both of Gokulnagar, R. N. Tagore Rd,
P.O. Panihati, P.S. Khardaha,
Dist- North 24 Parganas.
J U D G E M E N T
The fact of the case, in brief, is that the O.P. Nos. 2 & 3 are directors of the O.P. No.1 company and the O.P. Nos. 1,2 & 3 are engaged in the business of construction of multistoried building and allied business.
The complainant stated that the O.Ps purchased a Bastu land measuring an area more or less 8 cottahs 22 Sq.ft within Mouza Sodepur as specifically described in the ‘A’ schedule of this petition of complaint by a Regd. Deed of Sale being No. 09335 for the year 2009 registered in the office A.D.S.R.O Barrackpore and the fact of purpose of the ‘A’ schedule property by the O.Ps came to the knowledge of the complainant from the documents as were perused by the complainant at the time of execution of the agreement for sale and also from the recital of the agreement for sale.
The complainant further stated that the O.Ps upon getting the building plan approved and sanctioned from Panihati Municipality, started raising construction in or over ‘A’ schedule property and while such construction was going on, the O.Ps invited the intending buyers to purchase flat or flats, garage or garages etc.
Dictated and corrected Contd. …. 2/-
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The complainant also stated that the complainant entered into am unregistered agreement for sale with the O.Ps on 11.05.11 under certain terms and conditions and at the time of execution of the Agreement for sale, the complainant paid Rs. 2,60,000/- as booking money for the ‘B’ schedule Flat and garage to the O.Ps.
The complainant further stated that the mode of payment of the balance consideration money was specifically mentioned in Clause -2 of the unregistered agreement for sale dated 11.05.11 and it was specifically mentioned in the said clause -2 that the complainant was liable to pay Rs. 50,000/- for lift and electricity installation charges and the complainant craves leave to refer the said unregistered agreement for sale and its stipulations while the instant case will be taken up for hearing.
The complainant also stated that the complainant approached the IDBI Bank for house building loan in respect of the said Flat and garage and the said bank sanctioned loan of Rs. 12,00,000/- and Rs. 8,95,600/- was disbursed to the O.Ps and the same was duly received by the O.Ps and the complainant out of his own pocket paid a sum of Rs. 3,40,000/- and it was / is well within the knowledge of the O.Ps that the rest amount of Rs. 3,04,400/- will be disbursed by the IDBI Bank in favour of the O.P at the time of registration of ‘B’ schedule flat and garage and as such the complainant paid Rs. 12,35,600/- out of total consideration money of Rs. 15,44,500/- for the ‘B’ schedule flat and garage out of his own pocket and through bank loan.
The complainant further stated that the said agreement for sale was required to be registered and the complainant got the said agreement for sale registered on 02.12.11 and the same was numbered as 14877 and registered on 02.12.11 in the office of the Additional Registrar of Assurances –II, Kolkata.
The complainant also stated that when the stipulated period of 18 months was almost going to be expired, the complainant noticed that the O.Ps were doing their job slowly and then the complainant requested the O.Ps to take proper initiative for completion of ‘B’ schedule flat and garage could have been delivered to the complainant within the stipulated period and at that point of juncture, the O.Ps assured the complainant that well within due date, both the flat and garage would be completed in terms of the agreement.
The complainant further stated that by this or that way several days, months and years were elapsed and the complainant found that the O.Ps were disinterested rather reluctant to do the coveted job in respect of ‘B’ Schedule flat and garage.
Dictated and corrected Contd. …. 3/-
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The complainant also stated that the O.Ps with a view to hiding their misdeeds served a legal notice upon the complainant alleging that the complainant was not taking possession of the flat and garage upon making payment to the O.Ps and the O.Ps by such legal notice dated 29.08.13 demanded more amount than the agreed amount and such legal notice was replied by the complainant through his Ld. Advocate Koushik Chatterjee and the complainant clearly intimated the O.Ps that the complainant was ready and willing to get the possession of the flat and garage and to get the same registered upon making payment of the balance consideration money in terms of the agreement but since then the O.Ps never offered possession of the flat and garage and registration of the same. Hence the complaint.
The O.P has contested the case by way of filing written version.
The O.P stated that after 23.11.11 the complainant keeps silent to make any payment on several requests and after getting a legal notice on behalf of the O.P dated 29.08.13, the O.P flatly denied to make any further payment.
The O.P further stated that the entire allegation is barred by limitation and is liable to be rejected with costs. Hence the O.P prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both the complainant and O.Ps filed affidavit-in-chief. We have perused the materials on record and heard the submission of the Ld. Lawyer of the complainant and O.Ps.
The O.Ps also filed a written argument. We have perused the said written argument.
Admittedly, the complainant entered into agreement with the O.P for flat and garage.
The O.Ps stated that it was mutual agreed on and between the parties that the consideration amount will increase or decrease according to the final measurement of the said garage. It is also stated that the affidavit-in-chief of the O.Ps that according to the verbal instruction of the complainant the O.Ps have
Dictated and corrected Contd. …. 4/-
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done several extra works apart from the agreement in respect of the completion of the flat and garage. But we do not find any cogent evidence from the side of the O.P to prove the said fact.
The O.Ps stated that the complainant has not paid any amount in spite of notice received by the complainant from the O.Ps. The O.Ps also alleged that the complainant has to go to Civil Court for proper relief. The O.Ps also stated affidavit-in-chief in para 13 that the O.Ps are ready to execute and register the deed of conveyance in favour of the complainant subject to the payment in respect of the measurement of both the flat and garage and extra work was done thereon. When admittedly, the agreement is entered between the parties regarding the flat and garage and the complainant has made payment of consideration money, it is obligatory on the part of the O.Ps to deliver possession of the flat and garage inhabitable condition to the complainant and also execute and register the deed of conveyance in favour of the complainant. As there is no such cogent evidence on behalf of the O.Ps as the extra work was done by it, no direction can be made in this regard. But the O.Ps are liable to deliver possession of the flat and garage to the complainant and also to execute and register the deed of conveyance.
Accordingly, we are considered view that the complainant is entitled to get the relief as prayed for.
Hence
Ordered,
that the complaint be and the same is allowed on contest against the O.Ps.
The O.P. Nos. 1,2 & 3 is directed to deliver the peaceful vacant possession of the schedule ‘B’ flat inhabitable condition and garage in usable condition in favour of the complainant within two months from the date of this order.
O.P. Nos. 1, 2 & 3 jointly and severally directed to execute and register the proper deed of conveyance in respect of ‘B’ schedule flat and garage with undivided proportionate share of land out of the ‘A’ schedule land along with all facilities, amenities and privileges as specifically mentioned in the Agreement for sale in favour of the complainant upon receiving the balance consideration money from the complainant. Failing which the complainant is at liberty to get the deed registered through this Forum after receiving the balance consideration money, if any, from the complainant.
Dictated and corrected Contd. …. 5/-
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The above mentioned O.Ps are further directed to hand over the possession certificate and completion certificate in respect of the ‘B’ schedule property to the complainant within three months from the date of this order.
The O.Ps are also directed to pay Rs. 1,00,000/- as compensation and Rs. 5,000/- to the complainant within two months from the date of this order, failing which the O.Ps shall have to pay sum of Rs 100/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.Ps in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
