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. ‘D’ situated in the 4th. Floor of N C Mallick Apartment in favour of the complainant on receipt of balance amount of Rs. 5,70,240/-, to pay an amount of Rs. 93,619.20 p. as 12% interest on the advance money, to pay Rs. 48,000/- as rent for 12 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. ‘D’ measuring
approximately 792 Sq. Feet (Super built up area) situated in the 4th. 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. 9,50,400/-, 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 06.07.2011 and he paid total advance money of Rs. 3,80,160/- on different dates as per terms of said agreement. In spite of completion of construction of said Flat No. ‘D’, and several requests, the O.Ps. have not delivered possession of the flat till today in favour of the complainant on receiving the balance consideration money of Rs. 5,70,240/- and they claimed excess amount of Rs. 1,00,000/-. As per terms of agreement the O.Ps had liability to hand over the possession of said flat to the complainant on or before 31.08.2011 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 deliver possession of the flat No. ‘D’ in question and 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 the fault of the O.Ps the complainant was forced to live in a rented house for a period of 12 months. The O.Ps are liable to pay such rent paid by the complainant and to pay the interest at the rate of 12% over the advance money. In spite of repeated requests the O.Ps neglected to deliver possession and to execute & register the deed of conveyance in respect of the flat No. ‘D’ in question. 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 ‘D,) at his own will without paying the balance amount of the consideration money and with a 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.Ps. 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 06.07.2011, 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 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. ‘D’ measuring approximately 792 Sq. Feet (Super built up area) in the 4th. 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. 9,50,400/-, 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 06.07.2011 and he paid total advance money of Rs. 3,80.160/- on different dates as per terms of said agreement. The complainant has stated that the construction of the flat has been made complete but the O.Ps. have not delivered the possession of the flat till now. On the other hand the O.P. No. 2 has stated that the complainant has been occupying the flat. There is on evidence showing that the possession of the flat has been delivered. So we are of the opinion that the possession of the flat has not yet been delivered to the complainant 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 payment of balance consideration amount and other amounts payable by the purchaser, the delivery of possession will be made 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 delivery of possession and execution and registration of the Deed of Conveyance in respect of the flat in question.
In the complaint petition the complainant has claimed for an award directing the O.Ps. to pay Rs. 93,619.20 p. as interest on advance money and Rs. 48,000/- as rent of the tenanted house in which he lived for 12 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 and also amount of advance money paid as mentioned in the Agreement the complainant has raised no dispute. So the complainant has liability to pay Rs. 5,70,240/- to the O.P. No.2 as balance amount of consideration money of the flat in question.
It is admitted by the contesting parties that the complainant has not paid such Rs. 5,70,240/- 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 in respect of flat No. ‘D’ and they have not handed over the copy of the completion certificate of the flat to the complainant. It has been decided that the possession of the flat in question, has not been delivered to the complainant. So the O.Ps. have liability to deliver possession of the flat to the complainant and 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 after receiving the balance consideration money of Rs. 5,70,240/-. 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 deliver possession of the flat to the complainant and to execute & register such deed of conveyance in favour of the complainant after receiving such balance consideration money and also 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. But he has failed to do so, 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 deliver the possession of the flat No. ‘D’ to the complainant and to execute & register the deed of convenience as mentioned at the cost of the complainant on receiving Rs. 5,70,240/- as the balance amount of consideration, from the complainant and also to hand over the copy of completion certificate, in respect of flat No. ‘D’ as described in Agreement dated 06.07.2011 and 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. 72/2012 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 deliver possession of the flat as mentioned, to the complainant and to execute & register the deed of convenience as mentioned at the cost of the complainant on receiving Rs. 5,70,240/- (Rupees Five Lakh Seventy Thousand Two Hundred Forty) only as the balance amount of consideration, from the complainant, to hand over the copy of completion certificate, in respect of flat No. ‘D’ as described in Agreement dated 06.07.2011 executed in between the complainant and the O.P. 2, in favour of the complainant and 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. 5,70,240/- (Rupees Five Lakh Seventy Thousand Two Hundred Forty) 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, to deliver the possession of the flat as mentioned, to execute and register the Deed of Conveyance as mentioned above at the cost of the complainant and also to hand over the copy of completion certificate within one month from the date of payment of such balance consideration amount of Rs. 5,70,240/- (Rupees Five Lakh Seventy Thousand Two Hundred Forty) 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.
