Order-21.
Date-13/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that OP1 is a land/building developing and construction firm and OPs 2 to 4 are the co-owners of the plot of the land where development work was undertaken by OP1 by virtue of a development agreement dated 10-06-2010 with the landowners. Subsequently, a supplementary development agreement dated 18-11-2011 was also entered into by and between the OPs for a revision on the ground of allocations of the OPs. On 23-11-2011 complainants and the OP1 entered into an agreement for sale for a flat measuring about 580 sq. ft.(super built up area) on the first floor, the detail of the said flat is given in the scheduled of the petition of the complaint at a consideration amount of Rs.12,50,000/-. In terms of the agreement for sale dated 23-11-2011 the OP1 was supposed to hand over the possession of the said flat in finished and habitable condition within 18 months from the date of starting work/extension 3 months. Op1 subsequently entered into supplementary agreement for sale dated 14-07-2014 with the complainants on the following issues . a) enhancement in measurement of the super built up area of the subject flat, b) wrongly printed consideration amount of Rs.12,50,000/- instead of Rs.7,10,000/- i.e. Rs.1244 per sq. ft. and c) extension of time for completion and handed over the said flat that is instead of 01-09-2013 to 01-09-2014. The complainant paid a sum of Rs.5,10,000/- to the OP1 towards the initial payment out of total consideration of Rs.7,10,000/-. The OP1 failed to hand over the possession of the said flat to the complainants within 01-09-2014 and the complainants also caused service of legal notice dated April 1, 2015, 13-08-2015 and 03-09-2015. The OP1, thereafter, held a meet with the complainants and thereafter, in December, 2015 the complainants were handed over the possession of a big hall room in the said flat in an incompleted unfinished and uninhabitable condition without any possession certificate. It is alleged that save and except the roof on the head, no other room or kitchen or bathroom were provided to the complainants by OP1. OP1, however, assured the complainants to finish the incomplete works in the said flat within a month but till date OP1 did not perform his part of duty. The measurement of the said flat was 580 sq. ft. but ought to have been 680 sq. ft. as mentioned in the agreement for sale. The complainants meet the OP1 and requested OP1 to complete the flat but to no good. It is alleged that OP1 is deficient in rendering services to the complainant in terms and conditions of the agreement for sale. Complainant has also prayed for necessary direction upon the OP for execution and registration of the deed of conveyance in favour of the complainant on receiving the balance amount. Hence, this case.
OP1 has contested the case in filing written version contending, inter alia, that the case is not maintainable either in fact or in law. It is stated that the total consideration of the flat is Rs.12,50,000/- as stated in the original agreement for sale and not Rs.7,10,000/-. It is also stated that the complainants paid Rs.5,10,000/- to the answering OP at the time of signing of the agreement and have not paid a single furthering thereafter. It is stated that complainants have deliberately failed and neglected to pay the balance consideration amount as per agreement for sale dated 23-11-2011 violating the terms of the agreement and, as such, this OP could not complete the work in time. It is stated that this OP has given possession of the said flat to the complainants without receiving any further amount apart from Rs.5,10,000/-. It is alleged that this Op is unable to complete the said flat due to non-payment of balance consideration amount in respect of 680 sq. ft.. it is denied that the balance consideration amount to be paid by the complainants is Rs.2 lakhs. it is stated that the complainants need to pay Rs.7,40,000/- as balance consideration amount as per the agreement for sale. It is denied that the Ops have indulged in unfair trade practice. The averment in para 14 of the complaint is also denied. It is stated that he complainants have come in unclean hand before this Forum and the instant case is liable to be rejected.
Ops 2 to 4, owners of the land, have not turned up to contest the case. The case has proceeded ex parte against these OPs.
Point for Decision
- Whether the OPs have been negligent in rendering services to the complainant?
- Whether the complainants are entitled to get the relief as prayed for?
Decision with Reasons
We have travelled over the documents on record, i.e. Xerox copy of the agreement dated 10-06-2010 and also supplementary development agreement dated 18-11-2011 in between the OPs, Xerox copy of the agreement dated 23-11-2011in between the OP1 and the complainants and also the supplementary agreement for sale dated 14-07-2014 in between the OP1 and the complainants, Xerox copy of money receipt, Xerox copy of legal notice and other documents on record.
Crux of controversy is with regard to the area of the subject flat it has been stated bythe complainants that the measurement of the super built up area of the subject flat was enhanced from 580 to 680 sq. ft. and at a price of Rs.7,10,000/- OP1 on the other hand, has claimed that the amount of the subject flat is Rs.12,50,000/- instead of Rs.7,10,000/- as stated in the original agreement and it is wrongly printed as Rs.7,10,000/- in place of Rs.12,50,000/-.
We find that two agreements were entered into in between parties, one dated 23-11-2011 and another one dated 16-07-2014. So, the supplementary agreement for sale dated 16-07-2014 stands as the final agreement in between the complainants and the OP1. In the said agreement dated 16-07-2014 that date of delivery of possession was fixed on 01-09-2014 and the said subject flat will be 680 sq. ft. super-built up areas at a total consideration of Rs.7,10,000/-. It also appears that on the date of execution of agreement the complainants paid amount of Rs.3,10,000/- and subsequently also paid a sum of Rs.2 lakhs and the complainants have to pay Rs.2 lakhs to the developer within three months from 01-09-2014. We also find that as per the version of the complainants possession was delivered unto the complainants in the month of December, 2015 i.e. after a delay of 15 months. This version of the complainants has not been denied by the OP1. There is also no document forthcoming before us on which date, month and year OP1 delivered possession to the complainants. We find Xerox copy of money receipt signed by OP1 that he received a sum of Rs.2 lakhs from the complainants. But no date is inserted on such money receipt. OP1 has not also stated clearly anywhere in the written version or any evidences on which date OP1 handed over the possession of the said flat to the complainants. So, the version of the complainants stands firm and unrebutted that possession was delivered unto the complainants in the month of 15th December and not before that, i.e. after 15 months from 01-09-2014. As in law we should be guided by subsequent and supplementary agreement for sale dated 16-07-2014 in between the parties no rectification clause or deed was also executed in between the parties for correction of the amount or the date of delivery or dimension of the flat as incorporated in the supplementary agreement for sale. So, we think that the parties should be governed by the terms of supplementary agreement for sale dated 16-07-2014.
It has been alleged by the complainants that OP1 handed over the possession of the subject flat in a complete unfinished and uninhabitable condition and that too without issuing any possession certificate in the name of the complainants. We find that OP has also more or less admitted in original version that as he has not received balance amount he could not complete the unfinished work. But we think the OP1 is bound by the contractual obligation for sale dated 23-11-2011 and 16-07-2014. It appears that the balance amount of Rs.2 lakhs has not been paid by the complainants to the OP1. Accordingly, we think that complainants have to pay the said balance amount of Rs.2 lakhs to the OP1. We find that the complainants have paid a total sum of Rs.5,10,000/- out of total consideration amount of Rs.7,10,000/-. Moreover, we find that as per the supplementary agreement for sale the developer shall have to pay a sum of Rs.5,000/- per day till delivery of the possession of the said flat. We find that possession was delivered to the complainants in the month of December, 2015. So, as per the contractual obligation developer shall have to pay a sum of Rs.500/- per day for 15 months.
We, however, find that there is no rate furnished in either of the agreement as to the rate of per sq. ft. so, we abstain from passing any order as to the price of 100 sq. ft. as claimed by the complainants. Moreover, the complainants have not also paid Rs.5,000/- per month to liquidate the balance amount after coming into possession of the subject flat in terms of Clause 2 of the Agreement for Sale dated 23-11-2011.
In result, the case succeeds in part.
Hence,
Ordered
That the instant case be and the same is allowed in part against OP1 and ex parte against OPs 2 to 4.
OP1 is directed to pay an amount of Rs.500 per day for 15 months to the complainants within 45 days from the date of passing this judgment.
OPs are also jointly and severally directed to execute and register a deed of conveyance in favour of the complainants on receiving balance amount of Rs.2 lakhs from the complainants, the balance amount to be paid to OP1 being promoter, through this Forum.
OP1 is also directed to complete the project unfinished work of the subject flat as per the contractual obligations and issue possession certificate of the flat to the complainants within the said stipulated period.
OPs1 to 4 are directed to execute and register a deed of conveyance with respect to the subject flat before the appropriate registering authority having jurisdiction in consonance with the agreement for sale dated 23-11-2011 and 16-07-2014 within 45 days from the date of this order as receiving balance amount to be deposited by the complainants to this Forum.
If the OPs fail to execute the sale deed by registering it within the stipulated period in that case complainant shall have to file an application before this Forum for getting execution and registration of the sale deed by this Forum and for this purpose complainant shall have to bear all costs and service charges, execution and registration charges of the sale deed and also pay the charges for deputing an officer on behalf of this Forum for execution and registration of the sale deed on behalf of the OPs.
OPs are directed to comply the order failing which OPs shall have to pay penal damages of Rs.5,000/- per month to this Forum after the expiry of stipulated period till final completion of the sale deed in respect of the subject flat.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
