FINAL ORDER
Samaresh Kr. Mitra, Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Nalini Kanta Giri.
The case of the complainant’s in short is that he entered into an agreement with the opposite parties on 11.2.2015 for purchase of a flat in the ‘B’ Schedule property at a total consideration price of Rs.18,40,000/-. That the prior to execution and registration of the agreement for sale the complainant paid a sum of Rs.11,91,731/-out of total consideration money of Rs.18,40,000/-. At the time of registration the opposite parties assured the complainant that the flat as described in the Schedule-B, shall be delivered to the complainant on or within 31st October, 2015 without any unnecessary delay. But the opposite parties did not deliver the said flat to the complainant within time.
Thereafter the complainant has made several requests to the opposite parties for delivery of the B Schedule flat. By taking balance consideration money and also requested to execute and register the deed of sale in respect of the same. At that time one Mr. Subir being the contract persons of the opposite parties assured the complainant that the opposite parties shall deliver the flat by March, 2016. On 23.5.2016 the complainant sent one letter through registered post to the Director of M/s. Pincon Developers Ltd. and requested them to provide a exact date of possession of the flat as described in the Schedule-B. After receiving the same the opposite party No.1 through his authorized signatory one G.Das had sent one reply letter on 31.5.2016 requesting the complainant to wait for further three months. But after expiry of three months the opposite parties did not delivery the said flat nor execute and register the deed of sale.
That on 12.09.2016 the complainant sent another letter through registered post to the Director of M/s. Pincon Developers Ltd. requesting to deliver the possession of the flat as described in the Schedule-B. After receiving the same the opposite party No.1 through his authorized signatory one G. Das had sent one reply on 19.9.2016 stating for wait for further three months, but in vain. At last the complainant sent a lawyer’s notice to the developer as well as its director to deliver the flat as mentioned in the Schedule-B within 30 days from the date of receiving the notice. After receiving the notice the opposite parties again requested for more time for six months.
Finding no other alternative the complainant has compelled to file this case before this Ld. Forum for relief with a direction upon the opposite parties to execute and register the deed of sale in respect of the flat as described in the Schedule-B after taking balance consideration money from the complainant, to deliver the possession of the flat after completion of registration, to pay Rs.1,00,000/- for compensation and to pay litigation cost.
The opposite party No.1 contested this case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that till date he has received total amount of Rs.13,91,731/- from the complainant on different dates by accounts payee cheques. Delay of final construction work is caused due to unavoidable circumstances which are beyond the control of the opposite party. The opposite party further submits that complainant is not entitled to get any relief as prayed for.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Sri Nalini Kanta Giri is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sri Nalini Kanta Giri is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money and waiting for a long time to get the delivery of possession of the schedule mentioned flat so he is entitled to get service from the OP as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.19,40,000/- considering the value of the flat accompanied with the compensation for loss sustained by the complainant and for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The complainant in his evidence on affidavit stated that the opposite parties being the owners and developers started to erect multistoried building namely “Pincon Abason”, described as Schedule-A property in the complaint petition. The opposite party acquired the said property by virtue of a registered deed being No.101374 for the year 2012 and became the owner of the schedule mentioned property and intended to develop the same by raising multistoried building and consequently obtained building plan being sanctioned from the Hooghly Chinsurah Municipality and initiated to construct G+4, five storied building on the A-Schedule property. Subsequently on 11.2.2015 the opposite parties entered into an agreement for sale of a flat specifically and morefully described in the Schedule-B of the plaint with the complainant at a total consideration price of Rs.18,40,000/- and the said agreement duly registered in the year 2015. The complainant paid a sum of Rs.11,91,731/-on different dates through cheques as described in the said agreement. Thereafter the complainant took loan from LIC Housing Finance Ltd. to purchase the said flat. It is stated in the agreement for sale that the flat will be delivered within 31 October, 2015 without any unnecessary delay. After the statutory period of delivery of flat the complainant several times requested the opposite party to delivery in possession but opposite party on lame excuse tried to kill the time and failed to deliver the possession of the flat as well as could not execute and register the deed of sale in favour of this complainant. The complainant on several occasions wrote the letter to the complainant and on 2.1.2017 served advocate letter to the opposite party requesting them to deliver the flat within 30 days from the date of receiving the notice. Opposite party received the notice and send a reply on 30.1.2017 requesting the complainant to wait for further six months to complete the process of delivery of the said flat and it is also stated by the opposite party that one Arka Mitra being an intending purchaser of the flat filed a case before Central Consumer Redressal Cell and wherein the opposite parties were directed to complete the project and deliver the same within six months. All the letters are filed in Xerox copies to corroborate as an evidence. The complainant further assailed that after paying the major consideration amount he is deprived of getting the delivery of possession of the said flat and the execution and registration of the flat for which the complainant sought the redressal of this Forum praying directions upon the opposite party to deliver the B-Schedule mentioned flat and to execute and register deed of sale of the flat in favour of this complainant along with compensation.
The opposite party by filing written version admitted that they have taken the consideration money amounting to Rs.13,91,731/- from the complainant on different dates by account payee cheques. The delay of construction caused due to unavoidable circumstances which is beyond the control of the opposite parties.
The complainant in his argument stated that opposite parties executed and registered the agreement for sale in respect of the flat after taking the consideration amount of Rs.11,91,731/-. After the statutory date of delivery the complainant approached the opposite party to deliver the flat after taking balance consideration money and to execute and register the flat in favour of the complainant. But the complainant failed to act in accordance with the terms and conditions of the agreement for sale.
After perusing the documents and hearing the argument it is crystal clear that the complainant being an intending purchaser entered into agreement with the opposite party to purchase the schedule mentioned flat. But after the statutory period stated in the agreement for sale the opposite party failed to deliver and to execute & register the deed of conveyance in favour of the complainant. For which the complainant approached several times to the opposite party to get the flat delivered in his favour. But the opposite party in each occasion tried to kill time on lame excuse. It is well settled that after acceptance of entire consideration amount it is bounden duty on the part of the developer to fulfill three basic requirements 1. to deliver the possession, 2. to execute and registered the sale deed and 3. to obtain completion certificate from the competent authority. In the instant case the developer failed to deliver the flat in favour of the complainant and also failed to execute and register the deed of conveyance in favour of the complainant which tantamount to deficiency of service on the part of the opposite party developer. So it is transparent that the complainant suffered at the behest of negligence on the part of opposite party. For which the opposite party is liable to pay compensation and cost as this Forum deems fit and proper.
Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed and registered in his favour and to deliver the possession of the flat by the opposite party. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the payment complainant is awaiting for a prolonged period and compelled to prefer the recourse of this Forum for getting the schedule mentioned flat registered and delivered the possession, so he suffered loss for which he is entitled to compensation of Rs.20,000/- from the opposite party .
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration and delivery of possession of the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of non execution & registration of deed of conveyance and non delivery of possession of the impugned flat.
ORDER
Hence, ordered that the complaint case being No.59/2017 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.8000/- to be paid by the opposite party.
The Opposite Party No.1,2 &3 are directed jointly and /or severally to execute and register the deed of conveyance in favour of the complainant and to deliver the possession of the flat after taking the balance consideration money if any by the opposite party from the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order.
The opposite parties No. 1 to 3 are directed to pay compensation amounting to Rs.20,000/- to this complainant for mental pain and agony within the time framed.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
