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. ‘A’ situated in the 2nd. Floor of N C Mallick Apartment in favour of the complainant, to return back Rs. 54671/- as excess amount paid by the complainant, to pay an amount of Rs. 1,32,000/- as 12% interest on the advance money paid, to pay Rs. 10,000/- as litigation cost to the complainant and to provide parking space & lift facilities.
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. ‘A’ measuring
approximately 1156 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. Khatian Nos. 1178, 1179 & 1188
within the Mouza- Mohonbati, at the cost of Rs. 12,00,000/-, enter into an agreement with O.P. No. 2 Paresh Chandra Shadhu Khan who is/was one of the proprietors of O.P. No. 1 and Attorney of O.P. No. 3, on 01.02.2010 and he paid total advance money of Rs. 11,00,000/- on different dates as per terms of said agreement. After the completion of construction of the Flat No. ‘A’, a final measurement was taken and super built area of Flat No. ‘A’ becomes 1007 Sq. feet. Accordingly the total value of the flat is reduced to Rs. 10,45,329/-. As per terms of agreement the O.Ps had liability to hand over the possession of said flat to the complainant on or before 31.04.2010 subject to authentic reasons and to execute the necessary deed of conveyance but the O.Ps failed to comply with the terms of agreement as they have failed to execute and register the deed of conveyance in favour of the complainant in time. As such there is/was deficiency in service on the part of the O.Ps. For this fault of the O.Ps., they have to pay interest at the 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 March 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 this 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 Flat No ‘F’ (1st. floor) of N.C. Mallick Apartment, Netajipara, Raigunj, Utter Dinajpur, without paying the balance amount of the sale price and with the declaration that he shall get ready to get registered of the said flat whenever he shall be asked by the promoter of the said flat, 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 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 16.11.2009, receipts showing payment of advance money, 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 not denied 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. ‘A’ measuring approximately 1156 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. Khatian Nos. 1178,1179 & 1188 within the Mouza-Mohonbati, at the cost of Rs. 12,00,000/-, enter into an agreement with the O.P. No. 2 Paresh Chandra Shadhu Khan who is/was one of the proprietors of O.P. No. 1 and Attorney of O.P. No. 3, on 01.02.2010 and he paid total advance money of Rs. 11,00,000/- on different dates as Per terms of said agreement. It is not denied during the
course of hearing of this Case that the complainant has been occupying the Flat no. ‘A’ (2nd. Floor) in question since the month of March 2012. 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 such 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. There is nothing on record showing that the consideration money of all the flats have been paid to the promoters. So we find 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.
In the complaint petition the complainant has claimed for an award directing the O.Ps. to pay Rs. 1,32,000/- as interest on advance money and to provide parking space. As the concerned agreement is completely silent in this respect, the complainant is not entitled get any award in respect of such interest and parking space.
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 1007 Sq. feet and accordingly the actual consideration money has been reduced to Rs. 10,45,329/- and according the complainant is entitled to get back Rs. 54,671/- as excess amount paid. 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 an authentic document. But the complainant himself has relied upon this document and the contesting O.P. except formal denial, has not denied this document specifically in his W.V. and by adducing any evidence. So we are taking this document into consideration. On perusing this document (measurement sheet) it appears that after final measurement the super built area of flat No. ‘A’ stands 1024.938 Sq. feet and accordingly the actual value of flat No. ‘A’ stands at Rs. 10,63,949/- It is admitted that the complainant has paid Rs. 11,00,000/-as advance money which is more than the actual price of the flat in question, to the O.P. No. 2. So the complainant is entitled to get back Rs. 36,051/- as excess amount paid by her, from the O.P. No.2.
The complainant has admitted that he took possession of the flat 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. As per terms of the agreement the Promoter/Developer has/had liability to deliver possession of the flat on 31.04.2010 after the payment of balance consideration amount and other amounts payable by the purchaser and after completion of the flat. It is admitted by the complainant that he took possession of the flat in incomplete condition and he has been occupying the same. There is nothing on record showing that till now the flat in question is in incomplete condition. The materials on record shows that the complainant paid the balance amount with excess amount on 15.11.2010 and by the order of the competent court the O.P. No. 2 was restrained from doing any act on the basis of the connected power of attorney on and from 11.04.2012. Practically the O.P. No. 2 got sufficient time to deliver possession of the flat in question in
favour of the complainant within the period from 15.11.2010 to 10.04.2012. So as regard delivery of possession, we find that there was latches and negligence on the part of the
O.P. No. 2 and accordingly the complainant is entitled to get compensation for such latches and negligence, from the O.P. No. 2.
It is admitted by the contesting parties that the O.Ps. have not executed and registered the deed of conveyance in favour of the complainant in respect of flat No. ‘A’ situated in the 2nd. floor and they have not handed over the copy of the completion certificate of the flat to the complainant. In view of the discussions held hereinbefore, the complainant has paid more than the amount fixed as consideration and the construction of the flat has been made complete. 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 March, 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, to hand over the copy of the completion certificate in respect of the flat in question and to return back Rs. 36,051/- as excess amount paid by the complainant, 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 return back Rs. 36,051/- as excess amount paid by the complainant, to the complainant, to execute and register the deed of convenience as mentioned, at the cost of the complainant, to hand over the copy of the completion certificate, in respect of flat No. ‘A’ situated in the 2nd. floor as described in the Agreement dated 01.02.2010 and to pay the compensation and litigation cost.
Thus the case succeeds in part.
Fees paid is correct.
Hence, it is
ordered
that the complaint case being No. 53/2012 is allowed in part on contest against the O.P. No. 2 with cost of Rs. 2,000/- 25% of which is payable to the complainant and the rest is payable to the W.B. Consumer Welfare Fund 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 in respect of flat No. ‘A’ as described in the Agreement dated 01.02.2010 executed in between the complainant and the O.P. No. 2, in favour of the complainant, to return back Rs. 36,051/- (Rupees Thirty Six
Thousand Fifty One) only as excess amount paid by the complainant, to pay Rs. 10,000/- (Rupees Ten Thousand) only as compensation and to pay of Rs. 2,000/- (Rupees Two Thousand) only as the litigation cost to the complainant,
that the O.P. No. 2 is directed to execute and register the deed of conveyance at the cost of the complainant in respect of flat No. ‘A’ as described in the Agreement dated 01.02.2010 executed in between the complainant and the O.P. No. 2, in favour of the complainant, to return back Rs. 36,051/- (Rupees Thirty Six Thousand Fifty One) only as excess amount paid by the complainant, to pay Rs. 10,000/- (Rupees Ten Thousand) only as compensation and to pay the litigation cost of Rs. 2,000/- (Rupees Two Thousand) only to the complainant within one month from this day failing which such total amount of Rs. 50,051/- (Rupees Fifty Thousand Fifty One) only will carry interest @ 8% p.a. and the complainant 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.
