Order No. 8 dt. 12/04/2019
The case of the complainant in brief is that the complainant’s husband late Ranjit Das was in need of a flat and underwent an agreement with M/s. Shiva Co, a developer/construction company of flats on 14/12/2011for purchasing a residential flat in the ground floor of G+3 multi-storied building measuring more or less 650 Sq.ft. super built up area situated at 18, Bhattacherjee Para Lane, Police Station – Baranagar, Kolkata – 700 036 at a consideration price of Rs.9 Lakh. Before undergoing into the agreement complainant’s husband already paid Rs.1 Lakh in favour of the developer company by issuing a cheque no. 079125 dated 26/05/2009 drawn on UCO Bank, B.T. Road Branch, Kolkata relying on the credibility of the o.p. company. Thereafter, late Ranjit Das paid Rs.8 Lakh on different dates all within 2013 and asked the op-company on several times for early delivery of the flat in question after completion of the flat in all respect. But all such attempts of Mr Das was in vain during the subsequent period after full payments of the consideration price. In the mean time complainant’s husband died on 20/03/2015. The complainant stated in the petition that they had requested the developer to deliver the possession of the flat at the earliest . She also stated that they had sent a letter to the developer on 28/11/2017 but the developer did not pay any heed to the call of the complainant. Complainant also tried for amicable settlement of the dispute and approached to the Assistant Director, CA & FBP, Govt. Of West Bengal but such endeavour of the complainant had also been left fruitless due to non cooperation on the part of the o.ps. The complainant thereafter came to know that the developer might sale the flat to another intending purchaser for getting extra money. This intention of the developer is highly forbidden in the Agreement for Sale. In such a situation finding no other alternative complainant lodged this complaint praying direction upon the o.ps. to deliver the possession of the flat with Completion Certificate as well as Registration of Deed of Conveyance with compensation of Rs.2 Lakh and litigation cost of Rs.30 Thousand. Complainant also prayed for an order directing the o.ps. to pay Rs.8,000/- per month from the date of expiry of the stipulated period i.e. 15/05/2013 till getting possession of the flat under consideration.
PR & TR shows notice were served upon the o.ps. but the o.ps. did not participated in the proceedings of this case. Hence the matter has been fixed ex parte against the o.ps.
On the basis of the pleadings of the complainant following points are to be decided :-
- Whether the complainants entered into an agreement with the o.ps?
- Whether the o.ps neglected to hand over the flat with completion certificate and with execution of the deed of conveyance in favour of the complainant?
- Whether there was any deficiency in service on the part of the o.ps.?
- Whether the complainants will be entitled to get any relief as prayed for?
Decision with reasons :-
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. Lawyer for the complainant argued that complainant’s husband late Ranjit Das was in need of a flat and underwent an agreement with M/s. Shiva Co, a developer/construction company of flats on 14/12/2011for purchasing a residential flat in the ground floor of G+3 multi-storied building measuring more or less 650 Sq.ft. super built up area situated at 18, Bhattacherjee Para Lane, Police Station – Baranagar, Kolkata – 700 036 at a consideration price of Rs.9 Lakh. Before undergoing into the agreement complainant’s husband already paid Rs.1 Lakh in favour of the developer company by issuing a cheque no. 079125 dated 26/05/2009 drawn on UCO Bank, B.T. Road Branch, Kolkata relying on the credibility of the o.p. company. Thereafter, late Ranjit Das paid Rs.8 Lakh on different dates all within 2013 and asked the op-company on several times for early delivery of the flat in question after completion of the flat in all respect. But all such attempts of Mr Das was in vain during the subsequent period after full payments of the consideration price. In the mean time complainant’s husband died on 20/03/2015. The complainant stated in the petition that they had requested the developer to deliver the possession of the flat at the earliest . She also stated that they had sent a letter to the developer on 28/11/2017 but the developer did not pay any heed to the call of the complainant. Complainant also tried for amicable settlement of the dispute and approached to the Assistant Director, CA & FBP, Govt. Of West Bengal but such endeavour of the complainant had also been left fruitless due to non cooperation on the part of the o.ps. The complainant thereafter came to know that the developer might sale the flat to another intending purchaser for getting extra money. This intention of the developer is highly forbidden in the Agreement for Sale. In such a situation finding no other alternative complainant lodged this complaint praying direction upon the o.ps. to deliver the possession in respect of the subject flat with Completion Certificate as well as Registration of Deed of Conveyance with compensation of Rs.2 Lakh and litigation cost of Rs.30 Thousand. Complainant also prayed for an order directing the o.ps. to pay Rs.8,000/- per month from the date of expiry of the stipulated period i.e. 15/05/2013 till getting possession of the flat under consideration.
In order to prove the case complainant shown an affidavit of evidence in support of the contention of the complainant and filed document in support of her claim including photo copies of the respective payments documents as well as Agreement for Sale. Due to unchallenged testimony of the complainant, there is no scope to disbelieve the submission of complainant and, therefore, it should be accepted and necessary order is to be passed accordingly.
Considering the submission of the complainant and on perusal of the materials on record it is evident that the complainant paid Rs. 3 Lakh out of Rs.9 Lakh as a consideration money on different dates by issuing cheque no. 079125 dated 26/05/2009 of Rs.1 Lakh, Cheque no. 079135 dated 24/09/2010 of Rs. 1 Lakh and cheque no. 327909 dated 07/12/2012 of Rs.1 Lakh . The remaining amount of Rs. 6 Lakh was paid by cash in instalments . complainant submitted receipts of payment against all payment made in instalment. It was agreed in the Agreement that the flat would be delivered within one and half years from the date of approval of the sanction plan i.e. within 14/05/2013 but the developer had failed to construct the flat in due time and persuaded the complainant to wait for delivery of the flat. In such circumstances the complainant had to issue notice to the o.ps. on 28/11/2017. Thereafter complainant knocked the mediation Cell of the Assistant Director, CA & FBP, Govt. of West Bengal for early delivery of the flat in question, but such attempt of the complainant was also left unsettled. The consideration amount of Rs Nine lakhs against the flat in question as per the agreement had been paid in full within 13.08. 2013. But the complainant cannot put in possession even after a lapse of more than five years from the committed date of delivery ie, on 14.05. 2013. Moreover, ops did not respond to the call on 11.01.2018, 29.03.2018, 18.05.2018 and lastly on 21.05.2018 of the mediation cell of the Asstt Director, Dte of CA & FBP, Govt of WB for amicable settlement. Having been frustrated with for the non-cooperative attitude and poor service of the op-company complainant lodged this complaint on 13.12.2018 at this Forum.
Having bestowed our consideration to the facts at hand we are of the opinion that there was gross deficiency in service on the part of the o.ps. and the complainant is, therefore, entitled to get relief . Thus all the points are disposed of accordingly.
Hence, it is ordered,
that the case no.341/2018 is allowed ex parte with cost against the o.ps. The o.ps are jointly and/or severally directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat in question after allowing possession with completion certificate in respect of the flat under consideration and also to pay compensation of Rs.40,000/- (Rupees Forty Thousand) only for harassment and mental agony as well as litigation cost of Rs.5,000/- (Rupees Five Thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization and handing over possession of the flat.
