This is a case U/S 12, of Consumer Protection Act, 1986 for an award directing the O.Ps. to execute and register the deed of conveyance in respect of Flat No. ‘E’ situated in the 2nd. Floor of N C Mallick Apartment in favor of the complainant on receipt of balance amount of Rs. 81,250/-, to pay an amount of Rs. 1,48,800/- as 12% interest on the advance money, to pay Rs. 42,000/- as rent for 14 months of the tenanted house and to pay Rs. 10,000/- as litigation cost.
The complainant’s case in short is that the O.P. Nos. 2 and 3 are the proprietors of O.P. No. 1 M/S R.P. Enterprise. The O.Ps. are the owners and developers of N C Mallick Apartment. The complainant with an intention to purchase Flat No. ‘E’ measuring
approximately 1050 Sq. Feet (Super built up area) situated in the 2nd. Floor of N C Mallick Apartment constructed in Raigunj Municipal Holding No. 805/503 in Ward No. 25 having R.S. Dag Nos. 1336,1337,1332 & 1333 under R.S. Khatiar Nos. 1178,1179 & 1188 within the Mouza- Mohonbati, at the cost of Rs. 11,02,500/-, enter into an agreement with O.P. No. 2 Paresh Chandra Shadhu Khan who is/was one of the owners and Attorney of O.P. No. 3, on 01.02.2010 and he paid total advance money of Rs. 8,90.000/- on different dates as per terms of said agreement. After the completion of construction of the Flat No. ‘E’, a final measurement was taken and super built area of Flat No. ‘E’ becomes 925.867 Sq. feet. Accordingly the total value of the flat is reduced at Rs. 9,71,250/-. As per terms of agreement the O.Ps had liability to hand over the possession of said flat to the complainant on or before 31.12.2010 subject to authentic reasons and to execute the necessary deed of conveyance but the O.Ps failed to comply with the terms of agreement within the specified time as they have failed to execute and register the deed of conveyance in favour of the complainant. As such there is/was deficiency in service on the part of the O.Ps. For the fault of the O.Ps the complainant was forced to live in a rented house for a period of 14 months. The O.Ps are liable to pay such rent paid by the complainant and to pay the interest at rate of 12% over the advance money. In spite of repeated requests the O.Ps neglected to execute and register the deed of conveyance though they have handed over the possession of the flat to the complainant in the month of January 2012. Hence this case was filed with the prayers as mentioned above.
In spite of service of notices upon the O.P. Nos. 1 and 3 they did not appear in the case. Accordingly this case was heard ex parte against them.
The O.P. no 2 contested this case by filing written version while denying the case of the complainant and stating inter alia that the complainant has been occupying the premises (Flat No ‘E’ ) at his own will without paying the balance amount of the consideration money and with a written declaration that he has taken possession of the flat and he shall get ready to get registration of the deed of conveyance as and when he will be asked for the same , there is/was no deficiency in service on the part of the O.P. in this matter and as such the case is liable to be dismissed with cost.
DECISIONS WITH REASONS
In support of his case, the complainant has adduced his statement supported by an affidavit and some documents which are photo copies of the deed of agreement dated 01.02.2010, receipts showing payment of advance money, his declaration dated 30.03.2012, Regd. Deed of General Power of Attorney executed by the O.P. no. 3 in favour of O.P. No. 2 etc. On the other hand no evidence has been adduced by the contesting O.P. No 2 even in spite of opportunities given for cross examination and for submitting questionnaires, the O.P. No. 2 did not cross examine the complainant and did not submit any questionnaires for answers by the complainant.
We carefully peruse the evidence on record. It is admitted that the O.P. Nos. 2 and 3 are the proprietors of O.P. No. 1 M/S R.P. Enterprise, the O.Ps. are the owners and developers of N. C. Mallick Apartment, the complainant with an intention to purchase the Flat
No. ‘E’ measuring approximately 1050 Sq. Feet (Super built up area) of N C Mallick Apartment constructed in Raigunj Municipal Holding No. 805/503 in Ward No. 25 having R.S. Dag Nos. 1336,1337,1332 & 1333 under R.S. Khatiar Nos. 1178,1179 & 1188 within the Mouza- Mohonbati, at the cost of Rs. 11,02,500/-, enter into an agreement with the O.P. No. 2 Paresh Chandra Shadhu Khan who is/was one of the owners and Attorney of O.P. No. 3, on 01.02.2010 and he paid total advance money of Rs. 8,90.000/- on different dates as per terms of said agreement. It is further admitted that the complainant has been occupying the Flat no. ‘E’ in question since the month of January 2012 and till this day the complainant has not paid the balance consideration money. The deed of agreement as mentioned above shows that the time is the essence of contract but in the agreement, date and time for execution & registration of the deed of conveyance has not been fixed. In the agreement it has been mentioned that after the completion of the building and after the Owner/Developer have received the purchase price of all the premises and all other amounts payable by the purchaser thereof under the respective agreement, the Owner/Developer shall execute the Deed of Conveyance in favour of the purchaser at the cost of the purchaser. From the evidence on record it is clear that the complainant has not paid the entire consideration money to the O.Ps. So we find that there is/was no latches/deficiency in service on the part of the O.Ps. in the matter of execution and registration of the Deed of Conveyance in question.
Copy of the Acknowledgement dated 30.03.2012 executed by the complainant, clearly shows that the complainant has admitted that he took possession of the flat by virtue of the agreement and on condition that he will remain ready to get registration of the flat whenever he will be asked by the Promoter/Developer of the flat. In said Acknowledgement the complainant has not mentioned that the flat was in incomplete condition. As per terms of the concerned agreement the Promoter/Developer has/had liability to deliver possession of the flat after the payment of the balance consideration amount and other amounts payable by the purchaser and after completion of the flat. It is admitted by the complainant that he without paying the balance consideration amount and other amounts payable by him took possession of the flat and he has been occupying the same. So as regard delivery of possession we find no latches on the part of the O.Ps.
In the complaint petition the complainant has claimed for an award directing the O.Ps. to pay Rs. 1,48,800/- as interest on advance money and Rs. 42,000/- as rent of the tenanted house in which he lived for 14 months. As the concerned agreement is completely silent in this respect and as till this day the complainant has not paid the balance consideration amount & other amounts payable by him, the complainant is not entitled get any award in respect of such interest and rent amount.
As regards actual measurement of the Flat and fixation of consideration money of the flat, we carefully peruse the materials on record. It appears that the complainant has stated that after the completion of construction of the flat in question, actual super built area of the flat stands 925.867Sq. feet and accordingly the actual consideration money has been reduced to Rs. 9,71,250/- and according the complainant has liability to pay Rs. 81,250/-as balance amount of consideration money. In support of this case the complainant has relied upon his own statement and photo copy of a measurement sheet which has not been signed by the O.Ps. and the person who prepared the same. So it could not be said that it is not an authentic document. But the contesting O.P. except formal denial, has not denied this case of the complainant specifically in his W.V. and by adducing any evidence.
So we find nothing to disbelieve this case of the complainant regarding super built area of the flat in question fixed on final measurement. On calculation the actual value of the Flat in question stands at Rs. 9,72,160/-. It is admitted that the complainant has paid Rs. 8,90,000/-as advance money to the O.P. No. 2. So the complainant has liability to pay Rs. 82,160/- to the O.P. No.2 as balance amount of consideration money of the flat in question to the O.P. No. 2.
It is admitted by the contesting parties that the complainant has got the possession of the flat but he has not paid such Rs. 82,150/- as the balance amount of consideration money to discharge his liability. It is also admitted that the O.Ps. have not executed and registered the deed of conveyance in favour of the complainant and they have not handed over the copy of the completion certificate of the flat to the complainant. So the O.Ps. have liability to execute and register such deed of conveyance in favour of the complainant and to hand over the copy of the completion certificate in respect of the flat in question to the complainant. It is admitted that the O.P. No. 1 is represented by the O.P. Nos. 2 and 3 and the O.P. 3 has authorized O.P. No. 2 to do such acts by executing Deed of General Power Of Attorney. So the liability to execute and register such deed of conveyance in favour of the complainant and to hand over the copy of the completion certificate in respect of the flat in question to the complainant, has been sifted upon the O.P. No. 2.
In the month of January 2012, the complainant got possession of the flat and he has been occupying the same but the O.P. No. 2 has failed to execute and register the deed of convenience in favour of the complainant and to hand over the copy of the completion certificate in respect of the flat in question to the complainant in spite of several requests. For this failure on the part of the O.P. No. 2 the complainant has been forced to come before this Forum by spending money. So the complainant is entitled to get the litigation cost from the O.P. No. 2.
In view of the above discussions we are of the opinion that the complainant is entitled to get an award directing the O.P. No. 2 to execute and register the deed of convenience in question at the cost of the complainant on receiving Rs. 82,160/- as the balance amount of consideration, from the complainant and to hand over the copy of completion certificate, in respect of flat No. ‘E’ as described in Agreement dated 01.02.2010 and directing the O.P. No. 2 to pay the litigation cost.
Thus the case succeeds in part.
Fees paid is correct.
Hence, it is
ordered
that the complaint case being No. 52/2012 is allowed in part on contest against the O.P. No. 2 but the case is dismissed ex parte against the rest without cost,
that the complainant do get an award directing the O.P. No. 2 to execute and register the deed of conveyance at the cost of the complainant on receiving Rs. 82,160/- (Rupees Eighty Two Thousand One Hundred Sixty) only as balance amount of consideration from
the complainant, in respect of flat No. ‘E’ as described in the Agreement Deed dated 01.02.2010 executed in between the complainant and the O.P. No. 2, in favour of the complainant and directing the O.P. No. 2 to pay the litigation cost of Rs. 2,000/- (Rupees Two Thousand) only to the complainant,
that the complainant is directed to pay such balance amount of Rs. 82,160/- (Rupees Eighty Two Thousand One Hundred Sixty) only to the O.P. No. 2 within one month from this day and the O.P. No. 2 is directed to pay such litigation cost of Rs. 2,000/- (Rupees Two Thousand) only to the complainant and to execute and register the Deed of Conveyance as mentioned above at the cost of the complainant and to hand over the copy of completion certificate within one month from the date of payment of such balance consideration amount of Rs. 82,160/- (Rupees Eighty Two Thousand One Hundred Sixty) only by the complainant failing to comply with any of the above directions by any of the parties, the effected party will be at liberty to put this order in execution in accordance with law.
Copy of this order be supplied to each parties of this case, free of cost.
