This is an application u/s.12 of the C.P. Act, 1986.
Complainants being senior citizens by filing this complaint on 30-06-2014 before this Forum have alleged that being attracted and allured by the advertisement of the OPs for booking a flat and as they have their need to get a flat complainant entered into an agreement with the on 03-10-2008 for purchasing a flat measuring 1196 sq. ft approximately situated on the 2nd floor of the building having flat no.2D, Block-9 within the project named as Regent Ganga in Premises No.9K, G.T. Road, Uttarpara, Dist-Hooghly and as per terms and condition of the said agreement OPs agreed to make the said flat habitable within 24 months and on completion of the said flat OPs shall give notice to the complainant and thereafter within 15 days from the date of the notice the complainant shall take over the possession of the said flat along with the properties appurtenant thereto and OP also agreed in case of its belated stage of delivering the possession OP shall have to pay a sum of Rs.2 per sq. ft. per month as compensation as per terms of the said agreement complainant agreed to pay a sum of Rs.10,76,400/- towards the consideration money for the said flat in terms of the sixth schedule (part-I) of the said agreement. All on a sudden complainant visited the site to show the status and situation of the flat being No.2D, and after inspection they sent a letter dated 30-09-2009 to GM, Marketing of the OPs complaining about toilet not conforming to the specification, civil work for interior found crack and thickness of wall plastering bulged out in several places and deep crack either on reinforced or other civil structure is detrimental for the question of stability, aluminum windows provided not conformed to the sample provided in mock up and huge gap found in all around area of window openings and to cover the defects, filled up the gap with plaster of paris which is not stable, floor tiling laid in very non-professional way and in major areas found level differences from one to other tiles, wooden frames of top rails and bottom rails are not in one plain, tilling above kitchen slaps laid but gap on top found variable, Pipes in certain areas not concealed as originally proposed, masonry work on brick walls in common passage area found irregular distance between two walls caused faulty tiles flooring on this passage area etc. It is specifically mentioned that complainant No.1 is an engineer and at present officiating as Chief Executive of a well known interior decoration, designing and landscaping company running its business under the name and style of “Carlie Lawrie & Company”.
That on May 13, 2011 the complainants were handed over a payment schedule wherein the OPs asked the complainants to pay a sum of Rs.92,620/- only under the head of other charges. Again OPs asked the complainants by a letter dated 04-06-2011 to pay a sum of Rs.2,00,260/- towards the instalment due and further informed the complainants that the said flat was ready for possession.
On 06-06-2011 complainant wrote a letter to the OP2 and mentioned about 70 percent of the payment of the consideration money but no sign of completion of the said flat was sold and it was further alleged that complainant no.1 also asked the OPs to ascertain the actual status of the said flat and informed the complainant as to when the delivery of possession of the said flat is expected.
Vide email dated 28-06-2011 was sent to the complainant by the OPs intimating that the complainants can go for a joint measurement of the said flat as and when convenient to them and further mentioned that the remaining defects and/or rectifications of the construction with regard to the said flat is also completed.
On receipt of the said letter OP1 inspected and measured the said flat and explaining the difficulties and discrepancies and it is further stated that the complainant specifically mentioned that with regard to the complaint made earlier the defects were removed but some other major critical items remain unattended and/or untouched and complainant was asked to mention the details of unattended and untouched works to the OPs.
Thereafter, days and months went complainant kept on requesting the OPs to deliver the possession at an earliest possibility but the OPs did not turn up and it is further stated that getting no reply from the OPs the complainants sent a letter on 02-02-2012 asking the OPs to conform the dates of the readiness of the flats after completion of the pending and unattended work as already mentioned in the letter. But fact remains complainant already paid 90 percent of the consideration and subsequently complainant paid Rs.2,00,260/- and even then OP cannot claim another sum of Rs.23,072/- but fact remains such sort of claim after claim is uncalled for. In view of the fact the possession of the flat has not been given though maintenance on monthly basis shall start by the OPs but even after repeated demands a complete flat has not been handed over to the complainant and in fact, complainants have not received any sort of service from the OPs as yet payment has been made by the complainant to the OPs as per their requirement even decided by the clause of the agreement to sale that beyond 24 month from the date of execution of the agreement it already expired on 03-10-2010 as per agreement cut-off date as 30-04-2012 then delay of readiness out of 18 months and so the complainant is entitled to Rs.2/- per month per sq. ft. for such delay. Fact remains complainant again and again accompanied the matter to the OPs where OPs are reluctant to the unfinished work and neglected to deliver the said flat in a habitable condition though complainant paid the entire amount as claimed by the OPs and in the above circumstances for negligent and deficient manner of service complainant has been compelled to file this case for redressal.
On the other hand OPs by filing written statement submitted the complaint is barred by limitation and allegations are completely false, fabricated and only to avoid payment of legitimate amount as claimed by the OPs this false complaint is filed. Claim of interest as per agreement as made by the complainant is completely uncalled for and there is no negligence and deficiency on the part of the OPs and OPs within time informed the complainant to take the possession of the flat but complainant delayed in payment of the balance amount and till they have failed to pay entire balance amount as per agreement. So, OP was compelled to demand payment which includes maintenance as well which also the complainant most intentionally and deliberately failed and neglected to make payment causing serious inconvenience to the OPs as well as other occupiers of the building and fact remains OPs have not violated any terms and condition of the agreement and so the present complaint is not maintainable.
Further it is alleged that the allegation relating to quality or nature of construction or amenities or facilities are absolutely false having no scope or question of using unfair trade practice and there was no deficiency of service as falsely and motivatedly alleged by the complainant and in the above circumstances the complaint should be dismissed as a vexatious one.
Further OP has submitted that in respect of the said project there is a Writ Application pending before the Hon’ble High Court so Forum has no scope to pass any order till the matter is fully adjudicated before the High Court. It is further submitted that during the course of construction the complainant constantly disturbed and interrupted the smooth construction work and thus seriously hampered causing huge sufferings which complainant are liable to compensate. It is further alleged that the entire construction is as per schedule or that there is no lack of workmanship or that there has been no lacking compliance of specification and in fact when complainant failed to perform their performance as per agreement and found that it is impossible for them to get relief so they appeared before this Forum by bringing false allegation so, the complaint should be dismissed.
Decision with Reasons
On an indepth study of the complaint and the written version and also considering the agreement for sale executed in between the parties on 3rd October, 2008 it is it is fact and proved that complainant intended to purchase the said flat and agreement was executed in between the parties on 03-10-2008. It is also proved up to 11-05-2012 OPs received the entire amount but OP claimed a further sum of Rs.23,072/- as service tax, municipal rent tax, maintenance of generator cost, electric charges etc. But considering the entire agreement and also the fact of not delivering the complete flat in favour of the complainant by the OPs and OPs have no legal right to claim any service tax, intercom charges, generator charges and other maintenance charges to the extent of Rs.23,072/- from the complainant and such a claim is completely arbitrary and uncalled for and complainant is not liable to pay any charges for maintenance or municipality rent, tax or intercom charges or legal charge or general cost etc. when complainant is not enjoying the flat as yet.
At the same time OPs have failed to produce any document to show that the OPs have completed the flat after removing all defects pointed out by the complainant. no such letter was handed over to the OPs to that effect delivered all the works have been done as per complainant’s satisfaction and complainant is directed to deliver the possession on the particular date but letter was sent on 11-05-2012 which does not speaks that on which date the flat shall be handed over to the complainant in a habitable condition of the OPs it simply proves that OPs have failed to complete the flat in habitable condition and to deliver the same to the complainant but only from this letters it is found that one after another OPs claimed that further payment of certain amount but we have already decided that such sort of amount cannot be claimed till enjoyment of the flat and till taking delivery of the possession of the flat of the complainant only on the ground complainant is not enjoying the service of the OPs in respect of the flat as yet and OPs have also failed to produce any such paper to show that the said flat is completed and is in habitable condition, so, deficiency and negligency on the part of the OP is proved beyond any manner of doubt. No doubt in this case OPs have treated to convince that one writ petition is pending before Hon’ble High Court in which OPs Kolkata Municipal Corporation, Uttarpara Kotrang Municipality is parties but fact remains on 02-12-2010 completion certificate was issued by Uttarpara Kotrang Municipality in favour of the OPs but even then after 02-12-2010 OPs failed to handover the flat in question in dispute in favour of the complainant in habitable condition in this regard it is to be mentioned that all the municipal order of Bengal are showing such sort of completion certificate in favour of the promoters invariably after taking some bribe and that is the practice adopted by the municipal authority in such a manner because even after 02-12-2010 several defects in the said falt was detected that was reported by the complainant to the OP OP to some extent and thereafter, reported the complainant its grievance but even after this there was some defence then it is clear the flat in question was not prepared as per specification and complainant reported the matter OP admitted that there are required some repair work that had been done then it is clear a certificate by the Uttarpara Kotrang Municipality that the said project(the present project) had been completed in all respect and it is fit for habitation is nothing but a casual certificate.
Moreover, considering such pending cases we can say that the OPs can easily handover the possession of the flat as per agreement in habitable condition when entire amount has been received by the OPs which is proved and the demand of the OPs regarding balance amount of Rs.23,072/- is completely arbitrary in nature and complainants are not liable to pay such sort of arbitrary claim of the OPs which is illegal and unwarranted and further it is proved that only to secure that amount the possession has not been delivered by the OPs but due to pendency of the said writ petition there is no bar on the part of the OPs to handover the possession on proper receipt in respect of the disputed flat in favour of the complainant but we gathered that OPs have no desire to handover it though the entire amount as per agreement and other amount as charged had been paid by the complainant and received by the OPs as admitted by the OPs so, we are convinced to hold that at best after disposal of the said writ petition OPs shall have to execute sale deed but there is no bar to handover the said possession to the complainant. This peculiar agreement was executed on 03-10-2008 and as per agreement possession shall be delivered by 03-10-2010 and further as per agreement that may be executed for another 8 months that means ought to have been delivered in favour of the complainant 03-10-2011 but peculiar factor is that on 03-06-2011 the possession is not delivered in favour of the complainant. No doubt there is a clause that complainant shall have to pay Rs.2 per sq. ft in respect of late delivery of possession and invariably as per clause both parties are guided and invariably when a possession has not been delivered by 03-06-2011 in that case it is the duty of the OP to pay some amount as compensation till delivery of the said disputed flat in favour of the complainants and that compensation shall be assessed as per agreement rate with effect from 03-06-2011 and till the date of actual delivery of possession in favour of the complainant and OP is liable to pay that because intention of the OPs as found in the complaint is nothing but harassing the complainant and to squeeze money from the complainants showing different type of maintenance charges etc. which cannot be paid by the complainant till the date of taking actual possession of the habitable flat in question by the complainant and till the date of actual delivery of possession of the flat on dispute in favour of the complainants. No doubt Ld. Lawyer for the OP has tried to convince that there was no deficiency on the part of the OPs but we have gathered that deficiency, negligence on the part of the OPs is proved beyond any manner of doubt. Fact remains Senior Citizens complainants aged about 67 and 64 have failed to get the possession of the falt and to enjoy the same till their journey towards heavenly abode.
In the light of the above observation complaint succeeds when the complaint is maintainable in the eye of law and there is no legal bar to dispose of this matter by this Forum and to give relief.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OPs.
OPs are directed to deliver the disputed flat as per agreement in favour of the complainant within 30 days from the date of this order positively after repairing and preparing and preparing as habitable flat to the complainant positively on proper receipt without taking any further amount.
At the same time OPs are directed to pay the compensation as per agreement at the rateRs.2 per sq. ft. for the period starting from 03-06-2011 and till the date of actual delivery of possession of the flat in favour of the complainant and that amount shall be paid within 15 days from the date of delivery of possession of the disputed flat in favour of the complainant on proper receipt.
As because as per agreement compensation awarded no further compensation is awarded in favour of the complainant but for OPs negligent and deficient manner of service and for harassing the compoliant in such a manner a punitive damages of Rs,20,000/- is imposed only to check such sort of deceitful manner of business of present company and said amount if collected shall be deposited to the Forum’s account as penal damages.
OPs are also directed to execute and register the sale deed in respect of the flat at the cost of the OPs because in the meantime registration charge has been increased and that has been increased for the fault, negligence and deficiency on the part of the OPs and said sale deed shall be executed and registered by the OPs after disposal of the Writ pending before the High Court.
If it is found that OPs are disobeying the Forum’s order in that case OPs shall be prosecuted u/s.27 of the C.P. Act and for which further penalty and fine may be imposed.
