SAMIKSHA BHATTACHARYA, MEMBER

The instant  complaint case has been filed by the complainants under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging  deficiency in service.

The facts of the case, in a nutshell, are that the complainants  entered into an agreement for sale duly executed on 16.08.2014 with the OPs for purchasing a flat being No. C on the 6^th floor on Block-1 comprising of admeasurements super built up area of 830 sq. ft described in  Part I of second Schedule of the Agreement for Sale  together with right to use  one medium,  open/stack  car parking space at a total consideration  of Rs.27,97,800/-  only payable  in installments and it is  specifically  mentioned  in the installment schedule appearing in the said Agreement for  Sale that last 10% of the installment  amount would be payable on delivery of possession. As per  Agreement, the OPs would hand over the possession of the flat in question to the complainants within the month of November, 2017. The deed of conveyance would be  drafted by the Advocate of the OPs and for such drafting, the complainants have to pay Rs.15,000/- to the said Advocate. Due to urgent need of flat, for  their accommodation including their family members  the complainants agreed to such clauses. After completion of the flat, the complainants requested the OPs to deliver the flat without delay  and as per the assurance  of OPs the complainants  paid the entire consideration  excluding the  last installment. The complainants have also paid extra  amount of Rs.46,480/- towards legal fees as other charges and  they have deposited  the stamp duty and  registration fees to the Registration Authority. Sometimes, in the first week of December, 2017, instead of  delivery of possession  of the flat, the OPs sent a draft copy of  the deed of  conveyance to the complainants  through their Advocate. Upon scrutiny of the copy of the draft deed of conveyance, the complainants have noticed certain anomalies that in spite of acknowledging  the  total consideration  amount for the  flat and  car parking space, the OPs neither   enmarked   nor provided details of the car parking space  to be allotted to the complainants  which obviously amounts to unfair trade practice. For this anomaly, the complainants  sent email through their Advocate   and in  turn the OPs  also sent replies to that email through their Advocate.  Till date the OPs have not delivered the possession   of the flat with car parking space, completion certificate  and have not executed  and registered   the deed of conveyance  of the flat without changing   the anomaly so detected  by the complainants which causes tremendous harassment and mental agony to the complainants for no laches  on their part.  Moreover,  the OPs have demanded the maintenance charge  from  the month of December, 2017. Complainants are  paying EMIs against their home loan sanctioned by the loan disbursing  Bank. Under such compelling circumstances, the complainants have  filed  the instant complaint praying for delivery of  possession of the flat with car parking space for which the total consideration amount has been acknowledged by the OP No. 1 upon providing  a proper copy of  deed of conveyance  implicating the points  pointed out by the complainants. The complainants have  also  prayed for   direction upon  OPs to  execute  and  register the deed of conveyance   of the  sale deed of the flat in question  in  terms   of the  agreement and to deliver the completion certificate along with compensation of Rs.4,00,000/-    and litigation  cost of Rs.50,000/-.

All the OPs appearing before this Commission and filed their  written version.  In their written version, all the OPs denied all  material allegations inter alia stated that the OPs allured nobody to purchase  the flat in question rather the present complainants agreed to and  executed  an agreement for sale dated 16.08.2014 with the  present OPs. After communicating as regards taking physical possession of the said property after demand of the balance consideration  at the relevant point of time, the OPs  also communicated about  getting  the sale deed registered  and thereafter the OPs on several occasions requested  and reminded the complainants to take the possession of the flat  ought to register the deed of conveyance and they also sent  the draft  deed of conveyance. But it is unfortunate for  that   unknown reason  the complainants failed and/or declined to take any step and then towards resolving the issues. Surprisingly  the complainants raised some fictitious  issues which are denied  and disputed by the OPs. Therefore, the OPs have stated in their written version that   just  to harass the OPs and to malign  the goodwill   of the OPs/developer, the complainants has filed  the instant complaint. There is no negligence  or deficiency in rendering  service on the part of the  OPs/developer and  from the documents it is clear that suppressing  the material facts the present complainants  have filed the instant complaint with baseless manner which is bad in law and on the sole ground the instant complaint is liable to be rejected in limine. As regards to payment made by the complainants, the OPs have stated that the all the payments  are matter of record.

As  per commitment the OPs informed  the complainants  in time for handing over the possession and for registering the deed of conveyance in respect of the flat in question  by their letter dated 17.11.2017 the OPs also sent a draft copy  of the deed of conveyance but the complainants intentionally complicated  the matter in question with an ulterior motive and intention and the OPs have submitted in their written version  that the question of payment of excess amount does not arise at all when there is an agreement for sale specifying all the amounts which are legitimate demand of the  opposite parties. It is denied that without getting possession of the flat with  car parking space and moreover the  financing bank is regularly  demanding   for title deed of the said flat for creating  equitable mortgage but the complainants are unable to comply the same due to non-delivery of possession  and the execution and registration  etc.  It is  the  complainants’ obligation to prove each and every statements by placing documentary evidence. The OPs in its part finally demanded  to take possession  by  the present complainants on 16.11.2017 which is well  within the time of delivery of the possession as  and when  all the flat owners of the same block have been  possessing and staying  there and it is not out of place to mention here that the  OPs/developer had  already executed  more or less 250 deed of conveyance  in respect of the project in question  and not a single purchaser  raised any objection regarding the project in question wherein it is the  burning fact that   in this case, a sum of Rs.3,25,580/- is still outstanding dues and without clearing the said dues the complainants are  demanding for possession  which is baseless and against the law.  OPs have also cited a judgment in their written version, passed in Rashpal Singh Bahia  & ors. vs. Surinder Saur and ors. reported in 2008 (2) Civil Court cases 778 (P & A)  where the court has  held that who comes to court must come with clean hands. A person whose relief is based on falsehood has no right to  approach the court. Hence the OPs have prayed for dismissal of the complaint case with exemplary cost.

In course of argument,  Ld. Advocate for the complainant has submitted before this Commission that the consideration of flat  was 27,97,800/- and  as per agreement the complainants have paid  90% of the total consideration. The total consideration has been mentioned in the internal page 6 of the Agreement for sale as well as internal page 38 of the agreement for sale. In the 5^th schedule of the Agreement for Sale, the total consideration has been mentioned in the part-I and the part-II  mentions  the payment schedule  of the purchaser to the developer  in instalments. As per schedule the complainants have paid more or less 90 % of the total consideration, only  10% total consideration is due which to be given by the complainant “on possession”. The complainants have paid Rs. 26,45,292/-.   It was agreed that the possession of the flat  would be delivered by the OPs within November, 2017  including the grace period of 9 months  and it is mentioned in the part-III of the Agreement for Sale.  It is also mentioned in the Agreement for Sale that  the parking space would be allotted to the complainants before possession.  It is true that draft copy of deed of convenience has been sent by the OPs in December, 2017 but there are lot of anomalies particularly no car parking space has been allotted.  The complainants have informed the OPs about their grievance through e-mail for demarcation of car parking space.   Pare-II of Agreement for Sale internal page 34 mentions about the said parking space wherefrom it is clear that one medium open/stack car parking space,  to be allotted by the developer before handing over possession of the said flat to the purchaser. As this point has not been mentioned in the draft deed of conveyance the dispute has cropped up since then. As per Agreement for Sale the OPs have not provided the completion certificate though the complainants have paid the requisite fees of Rs.1,99,506/-  towards stamp duty and registration charges which is evident from running page 88 to the petition of complaint. Since the execution and registration of deed of conveyance is due, the loan sanctioning bank is  giving  pressure to the complainants to deposit the same for the purpose of equitable mortgage but  due to the acts of the OPs complainants are suffering a lot. Hence, they have filed the complainant case praying for relief mentioned in the petition of complaint and as such the Ld. Advocate for  the complainants has prayed for allowing the complaint by  giving the direction upon OPs as mentioned in the prayer portion of the petition of complaint.

In course of argument, the Ld. Counsel for the  OPs has submitted that the complaint has been filed by the complainants against the OPs for their alleged negligence, deficiency in service and  unfair trade practice. In this connection, the Ld. Advocate for the OPs has cited a judgment passed by the Hon’ble  Apex Court where the meaning of negligence is clarified  in the following manner:

Negligence is a tort. The jurisprudential  concept of negligence defies  any precise definition. Eminent jurists and  leading judgments have assigned  various meanings to negligence. The concept as has been acceptable to Indian Jurisprudential thought is well-stated in the law of Torts. Ratanlal &Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.  Singh). It is stated (at p 441-442)

“Negligence is the breach of duty caused  by omission to do something which are reasonable man,  guided by those considerations which ordinarily regulate the conduct of human affairs would so, or doing  something which a prudent  and reasonable man would  not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards  a person to whom the Defendant owes  the duty of observing ordinary care   and skill by which neglect the Plaintiff has suffered  injury  to his person or property. The definition involves three constituents of negligence: (1) A legal  duty to exercise due care on the part of the party complained of towards the party complaining  the former’s conduct within the scope of the duty; (2) Breach of the said duty and; (3) Consequential damage. Cause of action  for negligence arises only when damage  occurs.”

But in the instant case, surprisingly the above observation is totally  matched with the  act of the present complainants. The present complaint is nothing but   a vexatious complaint where  the cause of action is totally missing and there is no negligence or  deficiency  on the part of the OPs. The first prayer of the complainants is practically baseless and unwarranted as and when  since long the OPs being the leading  Real Estate  Developer of Eastern India was/is always ready and willing to do the  deed of conveyance  by taking balance consideration  amount. The OPs also handed over the draft deed of conveyance in respect of the flat in question to the complainants. In respect  of  Prayer (b) and Prayer (c) of the  complaint petition, the  OPs are always ready and willing to  execute and register the deed of conveyance/sale deed of the flat in question in terms of the agreement and they have already  obtained   the completion certificate and they are ready to hand over the same to the complainants.  Since there is no negligence or deficiency in service on the part of the OPs, therefore, the complainants are not entitled to any compensation as mentioned in the Prayer (d) of the petition of complaint and as such,  they are also not  entitled to litigation cost as  mentioned  in the Prayer (e) of the complaint.

The Ld. Advocate for the complainants has also filed the document  towards payment of EMIs to the financing authority. The Ld. Advocate for the OPs has filed the ledger  in respect of the payment from the complainants. The total due amount from the complainants  is Rs.3,25,559.24/-  in respect of consideration and Rs.2,57,948.04/- towards interest and Rs.1,23,249/- towards maintenance charges.

Upon hearing the parties and  on perusal of the materials on record, it  is  admitted fact that the complainants entered into an agreement for sale on 16.08.2014 with the OPs for purchasing  a flat in question for a total consideration of Rs.27,97,800/- and as per agreement, the complainants are entitled  with a car parking space. It is also admitted fact that before possession, the complainants have to pay 90% of the total consideration to the OPs and the remaining 10%  would be paid on possession.  It is also admitted fact that the complainants  have already paid Rs.26,45,292/-. As per agreement for sale dated 16.08.2014, the flat would be delivered by  28^th February, 2017, with a grace period of 9 months therefrom. Since, the agreement for sale was executed and  entered by and between the parties on 16.08.2014, the tentative date of completion of the flat is November, 2017 including grace period. There is no dispute between the parties about the consideration of the flat and the payment  received in respect of the flat and car parking space from the complainants.  Now  the question is when and for what reason the dispute has cropped up between the parties.  It is admitted fact that the OPs have sent a draft copy of sale deed  to the complainants in December, 2017 through their Advocate. Then the complainants  have  noticed that there is no demarcation of car parking space though as per agreement (Part II of the Agreement for Sale) the complainants are entitled to use one medium  open/stack car parking space, to be allotted  by the developer before handing over the possession of the said flat to the purchaser. Since  in the  draft deed of conveyance, there is no demarcation  of the car parking space, the complainants sent mail to the OPs and OPs also replied to the same. There is no dispute that the complainants  have been  paying the installments regularly. On 23^rd December, 2018, complainants  sent an email to the OPs that they are ready to receive the draft  copy of deed of conveyance. The complainant No. 2 has again sent an email on 25^th December, 2017 that though the complainants are waiting for   nothing but the date of registration, the OPs have not confirmed  till that date. The complainants sent several emails to know the date of registration.

Thereafter, the OPs have requested the complainants to meet their Advocate. The complainants have also paid the stamp duty charge towards property registration amounting to Rs.1,70,996/- and the registration fees amounting to Rs.28,510/-  totalling an amount of Rs.1,99,506/- before the Directorate of Registration  and Stamp Revenue as per demand of the OPs. Then the complainants sent the Lawyer’s notice dated 23.02.2018 and 17.03.2018 for  their grievances. Ld.  Advocate for the complainants have submitted  before this Commission that in the draft deed of conveyance there is  no demarcation of  car parking space but  upon perusal of the agreement for  sale it appears from the running Page 34 of the agreement for sale that there is no mention of  demarcated  car parking space in the agreement for sale.  (As  per Part II of internal Page 34 of the Agreement for Sale). The Second Schedule of the Agreement for Sale, Part II of the Second Schedule of the deed of conveyance,  there is no demarcation of car parking space. It is written  as follows:

“PART-II

“SAID PARKING SPACE”

All that the right to use – car parking space preferred by the Purchasers, which shall be allotted by the Developer at a later date.”(Running Page 74 of the  petition of complaint).  

Since there is no demarcation  of car parking space in the Agreement for Sale there is no demarcation of car parking space  in the draft  deed. Moreover, it is mentioned that it would be allotted at a later date. The complainants have grievances, since  as per  agreement, the   car parking space would be delivered  before the date of possession but it is not  mentioned in the draft copy of  the deed of conveyance. Rather it is mentioned  that the car parking space would be allotted at a later date.  On careful perusal of the  record, it appears that in the Part I of the Second Schedule of the draft  deed of the conveyance there is also no mentioning the specification of the flat in question. In the agreement for sale, the specification of the flat  has  been written  in pen not in typed letter. Probably, the same deed of conveyance has been provided to all the flat  owners who are  intended to purchase same type of flats of the project developed by the OPs and therefore, the name of the purchaser and the date of agreement for sale for the flat in question has been written in pen  in the front page of the  draft deed  of the conveyance. Therefore, it appears clearly that OPs were ready to deliver the possession of the flat and for that they were ready to register the deed of conveyance  but the complainants have disputed the same for the  reason best known to them. The OPs were ready to cooperate with the complainants and they   informed the complainants that they would resolve the problem in mutual discussion. But after receiving  the draft  copy of the deed of conveyance only for the reason that the car parking space would be delivered  at a “later date” the complainants sent legal notice and thereafter they filed the instant case. The car parking space would be delivered before the possession. The draft deed of conveyance  does not mean that they have  delivered the possession of the flat without delivering  the car parking space to the complainants. Therefore,  we find  no deficiency in service on the part of the OPs for non-completion of the project in time since  the project has been completed within the grace period. If the OPs executed the deed of conveyance and would deliver the possession of the flat without the car parking space  then the dispute  may arise but in course of argument and   from the four corners of  their written version as well as  evidence, we have not found that  the OPs are  not willing to deliver the  flat and  car parking space in question to the complainants. The complainants have prayed for certain reliefs enumerated in Prayer (a) of the petition of complaint which is not tenable in the eye of law. The OPs are  ready with the completion certificate and in support of the contention of the Ld. Advocate for the OPs has filed the photocopy of the completion certificate  before this Commission. Since we have not found  any deficiency in service regarding delivery of the possession of the flat and the car parking space  and willingness towards execution and registration to that effect, we  are not inclined to  pass any order towards compensation. Since the case is pending since 2018 we are only  passing  an award of litigation cost to the complainants.

The complainants have annexed the documents towards payment by the complainants for the flat and car parking in question.  As per document, complainants have stated that as per demand of the OPs, the complainants have to pay Rs.26,55,952/-.  But the complainants have  claimed that they have already paid Rs.26,59,398/-.  The complainants have filed the photocopy of money receipts issued by the OPs towards payment as follows- 

Date                           Amount                   Mode of payment

05.08.2014        Rs.4,67,860/-  cheque No.941666 dated-05.08.2014

                                                   Drawn on SBI, Bon Hooghly

05.08.2014        Rs. 18,316/-    cheque No. 941664 dated 05.08.2014

                                                   Drawn on SBI, Bon Hooghly

08.08.2014        Rs.1,00,000/-  cheque No.941667 dated 07.08.2014

                                                   Drawn on SBI, Bon Hooghly

17.10.2014    Rs.5,4,948/-    bankers cheque No.024554 dated 11.10.2014

                                                   Drawn on SBI, Chowringhee Rd. Kol

17.10.2014    Rs.20,04,168/- bankers cheque No.024554 dated 11.10.2014

                                                   Drawn on SBI, Chowringhee Rd. Kol.

From the above documents, it is clear that complainants have already paid Rs.26,45,292/- out of total consideration of Rs.27,97,800/-.  As per agreement, the complainants have to pay 90% of the total consideration before the delivery of the possession of the suit property and rest 10% amount would be paid at the time of delivery of possession.  In the case in hand, the delivery of possession of the flat and car parking space is due till date. But the complainants have already paid more than 90% amount before taking the delivery of possession of the flat and car parking space.  Therefore, as per demand of the OPs, the OPs are not entitled to claim any interest amount from the complainants since the complainants are not the defaulters.  The OPs cannot claim the interest amount since question of interest does not arise in the instant case.  The complainants are only liable to pay Rs.1,52,508/- to the OPs at the time of delivery of possession of the flat and car parking space in question.  The another demand of the OPs is  that the complainants are liable to pay the maintenance charge since December 2017 as the flat in question was ready since then.  But the complainants are not in possession of the flat and car parking space in question in reality till date.  Therefore, we are of the considered view that the complainants are not liable to pay the maintenance charge since December 2017.  The maintenance charge would be paid by the complainants from the date of actual possession of the suit property. Therefore, there is only balance consideration  of Rs.1,52,508/- is due from the complainants. It is also admitted fact that the complainants  have paid  the registration charges  towards registration of the flat and car parking space.  If the market value of the property has been increased  then the enhanced registration charge  towards the suit property in question should be borne by the OPs. As per demand of the OPs, the complainants have already paid Rs.1,99,506/- as  the property registration charges towards stamp duty and registration fees on 11.12.2017 as per market value of the suit property at that time.

In view of above, the present complaint succeeds  in part.

Hence,

         It is

                                                O R D E R E D

The complaint case being No. CC/343/2018  is allowed  on contest.

The OPs are directed to execute and register the deed  of conveyance of the flat in question and the car parking space  as per Agreement for Sale dated  16.08.2014 in favour of the complainants upon  receiving the balance consideration  of Rs.1,52,508/- (Rupees one lakh fifty-two thousand five hundred eight) from the complainants within 60 (sixty) days  from the date of passing this  order.

The enhanced cost of registration, if any,  shall be borne by the OPs.

The OPs are also directed to supply the copy of completion certificate  to the complainants within the aforesaid stipulated period.

There is no order as to compensation.

The complainants are also entitled to litigation cost of Rs.20,000/- (twenty thousand) only,  which  shall be   payable  by the OPs within 60 (sixty) days hereof.

If the OPs fail  to comply with the above  order within the stipulated period, the complainants are at liberty to  put the  decree into  execution as per law.

The complaint case is thus disposed  of accordingly.