The instant complaint under section 12 of Consumer Protection Act, 1986 is at the instance of an intending purchaser against the developer Company and its partners on the allegation of deficiency of service on the part of them in a consumer dispute of housing construction.
The brief facts of the case is that the opposite party being a developer and has been carrying on business of development by making construction of building consists of flat, shop, garage and sell the same to the prospective purchaser. The opposite party being the owner of land under Serampore Mouza, Municipality Holding No.6/A/2, Ray Ghat Lane, Plot No.2560, under Khatian No.3280 measuring 4 cottah 16 sq ft, P.S.- Serampore, Dist.- Hooghly purchased from one Dalia Chakrabarty by a registered deed vide deed no.2434 of 1995 before the ADSR, Serampore and mutated his name in the Municipal record and constructed flats after getting sanctioned plan from the municipality. The respondent enters into an unregistered agreement with the complainant on 22.07.2001 to sell one of the flats on the first floor being flat no. A/5 measuring super built area 378 sq ft. together with proportionate undivided impartible share of land underneath of the A schedule building and also agreed to confer some rights of enjoyment of the said flat and particulars of which mentioned in the B schedule. It was agreed further that the opposite party after completion of the total building shall serve one 15 days notice for taking possession by paying the entire consideration money and the complainant agreed to purchase the said flat in the B schedule for consideration of Rs. 174,600/-. The complainant paid the entire amount in two installments but the OP did not handover the possession by 03.03.2002. Subsequently the OP by a letter dated 15.04.2002 informed this complainant to take the possession and the complainant took the possession of B schedule flat on 15.04.2002 and paying maintenance charges and enjoying the flat as per the agreement. The complainant several times went to the opposite party for execution and registration in favour of this complainant but OP No.1 avoiding the execution and registration. That on 15.04.2007 the complainant went to the OP No.1who in his turn informed him that he is ill and after recovery he will execute the same. The complainant after 2008 to 2009 several times went to the OP and came to know that he is confined in bed for a considerable period as such no date has been fixed for execution and registration of deed. Then the complainant sent an advocate letter requesting the complainant to execute and register the deed but the said letter returned to the sender with a remark “No such person in this address”. The complainant requesting the OP to register the deed since 2002 but he has been pressing for further a sum of Rs.1 Lakh from this complainant. At the act of the OP this complainant suffered mental trouble, torture for a considerable period for which the OP is bound to file the instant case praying for direction upon the OP to execute and register the proper instrument of transfer of the B schedule flat at the cost of the petitioner within a specified time and in failure through this Forum, to pay Rs.50,000/- as compensation to the petitioner for harassing and causing mental torture, and compensation of Rs.50,000/- for refusing to execute and register the deed of B schedule property and a cost of Rs.5000/-.
Opposite party filed written version denying the allegations as leveled against them and averred that OP is developer and carrying on business of development by constructing flats, shops garage etc and the answering OP is the owner of 4 cottah 16 sq ft in plot No.2560, Mouza Serampore, Municipal holding 6/A/2 which was purchased from Smt. Dalia Chakrabarty and made construction as per sanctioned plan obtained from the municipality. The OP in his written version assailed the averments of each paras of the complaint petition either denied or demanded to proof it strictly. He further stated that the instant case has been filed after a lapse of 15 years from the so called agreement and the OPs being reputed developer had got no intention to delay and defer the execution and registration of the deeds of any of its customers. The complainant filed the case to harass the OP unnecessarily. As per Partnership Act, the instant complaint is not maintainable before this Forum. The impugned agreement is an unregistered agreement and the complainant is not entitled to claim specific performance of contract for execution and registration of sale deed by labeling the same as a consumer dispute. The opposite party never denied to execute and registered the sale deed in favour of the petitioner but the petitioner himself slept over his right for more than 15 years and as such the petitioner has lost his right to pray for execution and registration of the transfer deed.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition.
Both sides filed written notes of argument which are taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Samir Kumar Mukherjee ‘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 her?
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.
- Whether the Complainant Samir Kumar Mukherjee 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 paid advance money to the OP with the intention to purchase a flat and possessing in the said flat for prolonged period, the OP received the same and admitted in his written version, so this complainant being intending purchaser of the flat owned by the OP is entitled to get service from the OP.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed for a direction upon OP to execute and register the proper instrument of transfer of the B schedule flat at the cost of the petitioner within a specified time and in failure through this Forum, to pay Rs.50,000/- as compensation to the petitioner for harassing and causing mental torture, and compensation of Rs.50,000/- for refusing to execute and register the deed of B schedule property and a cost of Rs.5000/- 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 case of the complainant is that on 22.07.2001 the complainant entered into agreement for sale with the opposite parties to purchase of a self contained flat one of the flats on the first floor being flat no. A/5 measuring super built area 378 sq ft together with proportionate undivided impartiable share of land underneath of the A schedule building and also agreed to confer some rights of enjoyment of the said flat and particulars of which mentioned in the B schedule. It was agreed further that the opposite party after completion of the total building shall serve one 15 days notice for taking possession by paying the entire consideration money and the complainant agreed to purchase the said flat in the B schedule for consideration of Rs.174,600/-. The complainant has stated that he paid the entire amount in two installments but the OP did not handover the possession by 03.03.2002. Subsequently the OP by a letter dated 15.04.2002 informed this complainant to take the possession and the complainant took the possession of B schedule flat on 15.04.2002 and paying maintenance charges and enjoying the flat as per the agreement. Time and again the complainant requested the opposite party to execute the deed of conveyance but all his request and persuasion including legal notice date 05.05.2016 turned a deaf ear. So getting no alternative the complainant preferred the recourse of law praying for a direction upon the OP to execute deed of conveyance as per terms and of the agreement.
The opposite party / landowner by filing written version and written notes of argument denied the allegations leveled against them and averred that OP is a developer and carrying on business of development by constructing flats, shops garage etc and the answering OP is the owner of 4 cottah 16 sq ft in plot No.2560 mouza Serampore, Municipal holding 6/A/2 which was purchased from Smt. Dalia Chakrabarty and made construction as per sanctioned plan obtained from the municipality. The OP in his written version assailed the averments of each paras of the complaint petition either denied or demanded to proof it strictly. He further stated that the instant case has been filed after a lapse of 15 years from the so called agreement and the OPs being reputed developer had got no intention to delay and deferred the execution and registration of the deeds of any of its customers. The complainant filed the case to harass the OP unnecessarily. As per Partnership Act, the instant complaint is not maintainable before this Forum. The impugned agreement is an unregistered agreement and the complainant is not entitled to claim specific performance of contract for execution and registration of sale deed by labeling the same as a consumer dispute. The opposite party never denied to execute and registered the sale deed in favour of the petitioner but the petitioner himself slept over his right for more than 15 years and as such the petitioner has lost his right to pray for execution and registration of the transfer deed.
The complainant has filed evidence on affidavit and several documents including agreement for sale dated 22.07.2001.
It is not in dispute that the developer/ builder had entered into an agreement with the complainant to sell a residential flat measuring about 378 sq ft super built up area being flat no. A/5 on the 1st floor of Hinterland Complex ‘B’ Block at 6/A Royghat Lane, Mouza-Serampore under Serampore Municipality, Dist.- Hooghly, at a consideration of Rs.174,600/-. The money receipts issued by opposite party developer indicate that the complainant has paid the entire consideration amount and on receipt of the entire consideration amount the developer/builder handed over the possession to the complainant on 15.04.2002.
It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of him but it remain unheeded.
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 in his favour. 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 complainant is in possession since 15.4.2002, considering the loss suffered by him, 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 delivery 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 execution & registration by deed of conveyance.
ORDER
Hence, ordered that the complaint case being No.178/2016 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.8000/-.
The Opposite Party No. 1 to3 are jointly and severally directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.
The opposite parties are jointly and or severally 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.
