Date of filing : 27.02.2018
Judgment : Dt.27.06.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Santa Bhattacharya alleging deficiency in service and unfair traded practice on the part of the opposite parties (referred as OP hereinafter) (1) M/s Pragati Construction, (2) Bhim Sen Yadav (Developer) and (3) Smt. Ila Rani Kayal (Landowner).
Case of the Complainant, in brief is that the Complainant being a resident of a flat in the building in question intended to purchase a flat for her mother-in-law and entered into an Agreement for Sale on 23.6.2017 in respect of a flat to be constructed by OP on the ground floor of the said building situated at premises No.267A Dakshin Behala Road, P.O.-Sarsuna Thakurpukur, Kolkata-700 061 at a consideration of Rs.7,00,000/- and paid Rs.1,50,000/- on 23.6.2017 i.e. on the date of execution of agreement for sale.
The Complainant has stated it was agreed by the parties that possession of the flat would be delivered to the Complainant within 15.7.2017 and in case of non-delivery of the said flat within the said period the same would be delivered positively by six months from the aforesaid date. The Complainant has further stated that even after expiry of said period the OP neither handed over the possession of the said flat to the Complainant nor did register the deed of conveyance in spite of receiving several requests from the end of the Complainant to receive balance consideration amount and to execute and register Deed of Conveyance after handing over possession of the said flat and finding no other way the Complainant by letter dt.15.1.2018, requested the OP to execute and register the Deed of Conveyance and handover possession of the said flat but that too went in vain. Due to such act on the part of the OP the Complainant has to bear Rs.3,000/- per month towards rent of her mother-in-law’s accommodation and, therefore, the Complainant being aggrieved by filing the complaint prays for a direction upon the OP to execute and register the Deed of Conveyance on receiving balance consideration amount, to hand over possession of the said flat to the Complainant, to pay litigation cost and other reliefs.
The Complainant annexed copy of Agreement for Sale dt.23.6.2017, letter dt.15.1.2018 issued by the Complainant seeking possession of the flat, track report.
The OP No.2 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating, inter alia, that an Agreement for Sale was executed between the Complainant and the OP in respect of a flat at a consideration of Rs.7,00,000/- out of which the Complainant paid Rs.1,50,000/- and agreed to pay balance consideration amount at the time of execution and registration of Deed of Conveyance. The OP further stated that on completion of construction of said flat, the Complainant was requested to pay balance consideration amount but the Complainant did not pay any heed to that request though the OPs were always ready and willing to register the Deed of Conveyance in favour of the Complainant. It is further stated by the contesting OP that they are in no way liable for any deficiency in providing service as the Complainant did not even made any verbal request to execute and register the Deed of Conveyance in favour of her and accordingly prayed for dismissal of the case.
The Complainant adduced evidence on affidavit followed by questionnaire advanced by the OP and reply thereto. No evidence was filed on behalf of the OP.
In course of argument Ld. Advocate for the Complainant submits that a direction may be given to handover possession of the said flat to the Complainant and to register the same in favour of him.
Ld. Advocate for the OP filed BNA and submitted that the said flat is now under some one’s possession and the same cannot be handed over.
Points for determination
- Whether there is any deficiency on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant entered into an agreement for sale with the OP Nos.1 & 2 in respect of a flat on the ground floor of a building at a consideration of Rs.7,00,000/- and paid Rs.1,50,000/- towards part consideration and as per terms of the Agreement for Sale agreed to pay balance consideration amount at the time of execution and registration of Deed of conveyance. As per terms of the said agreement the flat was to have been delivered within 15.7.2017 and if not possible, then within another six months from the said date. It is stated by the OP that the Complainant has not taken any step even after receiving intimation that construction of the flat has been completed and no letter has been served upon the OP as stated by the Complainant. However, on perusal of documents we do not find any document in respect of such averment. Regarding the issue of non-receiving of letter dt.5.1.2018 issued by the OP, in our view, had the letter not been served upon the OP that too cannot be a ground to debar the Complainant from getting her rightful possession of the flat and register the same in her favour. It is contractual obligation of the OP to handover possession of the flat in question and register the same in favour of the Complainant, which he did not perform. Being the Constituted Attorney of the landowner he was empowered to do the same and deviation from contract amounts to deficiency in service.
In course of argument, on query, Ld. Advocate for the OP submitted that they have already handed over possession of the said flat to a third party. However, no document has been filed in support of such averment.
Be that as it may, as per Agreement for Sale dt.23.6.2017 the Complainant booked a flat and was agreeable to pay balance consideration amount on the date of registration of the Deed of Conveyance as per terms of the said agreement but the OP did not handover and register the same and such deviation from agreement on the part of the OP caused serious problem to the Complainant. If the flat has not been handed over to her she will be deprived of getting such accommodation at an consideration which was agreed between the parties.
Considering the situation, it will be justifiable if a direction is given to the OP to handover possession and execute and registration of Deed of Conveyance alternatively a direction may be given to refund the deposited amount along with compensation.
There are seriatim judgments where Hon’ble NCDRC has held that in case of non-delivery of the flat in question, considering the recent price hike in the field of housing construction service the consumer may be adequately compensated to such extent that the consumer may avail any such service for having residential accommodation .
Considering the discussion made hereinabove we are of opinion that the OP compelled the Complainant to file the instant case and, therefore, they are liable to pay cost of litigation.
Point Nos.1&2 are decided accordingly.
Hence
ordered
That CC/91/2018 is allowed on contest with cost.
The OP is directed to execute and register the Deed of Conveyance in favour of the Complainant in respect of a flat constructed on the ground floor of a building situated at premises No.267A Dakshin Behala Road and to handover possession to the Complainant within two months from the date of this order on receiving balance consideration amount of Rs.5,50,000/- from the Complainant.
Alternatively, to refund Rs.1,50,000/- to the Complainant along with compensation to the tune of Rs.2,00,000/- within aforesaid period failing which the entire amount shall carry interest @ 10% p.a.
The OP is further directed to pay Rs.10,000/- towards cost of litigation.
