West Bengal

StateCommission

CC/186/2018

Shashwato Chakraborty - Complainant(s)

Versus

Riverbank Developers Pvt. Ltd. - Opp.Party(s)

Mr. Sourav Mondal

17 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
Complaint Case No. CC/186/2018
( Date of Filing : 15 Mar 2018 )
 
1. Shashwato Chakraborty
S/o Mr. Nares Chandra Chakraborty, IA-73, Salt Lake City, Kolkata - 700 097.
...........Complainant(s)
Versus
1. Riverbank Developers Pvt. Ltd.
Regd. office at 225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
2. Sumit Kr. Dabriwala, Director
225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
3. Naresh Nadkarni, Director
225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
4. Krishnava Satyaki Dutt, Director
225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
5. Darshan Mekani, Director
225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
6. Mukul Tyagi, Director
225C, AJC Bose Road(4th Floor), Kolkata - 700 020.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT
 HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER
 HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER
 
PRESENT:Mr. Sourav Mondal, Advocate for the Complainant 1
 Abhik Kr. Das,Anirban Chatterjee,Koyeli Mukhopadhyay,Soumen Mondal, Advocate for the Opp. Party 1
Dated : 17 Aug 2023
Final Order / Judgement

SAMIKSHA BHATTACHARYA, MEMBER 

The  instant  complaint has been filed  by the complainant under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.

The facts of the case, in brief, are that the  complainant  entered into an agreement for sale  on 19.07.2011  with the OPs for purchasing a flat being   Flat No. 12B3 at 12th floor at the  premises  No. CalcuttaRiverside, Tower 1, Phase 1,  Budge Budge Trunk Road, Batanagar, District South 24 Parganas. In the said agreement, it was categorically mentioned that the measurement of the said flat would be 1305 sq. ft. (super built up area) more or less in the 12th floor park side consisting of 3 bed rooms, one dining, one Verandah,  two balcony, one kitchen room, two toilets, with a garage   on the ground floor  on the said premises. The cost of the said flat would be Rs.27,52,550/- only excluding Registration Charges, Electrical installation charges and other miscellaneous charges.

It was also agreed that the said flat would be constructed strictly as per sanctioned plan by  the Maheshtala Municipality and the flat should be completed  and handed over to the complainant within two years from the date of agreement for sale   i.e.,  15th September, 2011.  Before entering into the said agreement for sale, it was categorically   assured  by the  Opposite parties  that they would  handover a legally valid sanctioned flat in accordance with the  offer, drawing and on the basis of the said assurances of the Opposite  Parties,  the complainant   paid Rs.1,00,000/- to the Opposite Party company.

Pursuant to the aforesaid, the complainant has duly paid the agreed amount  of Rs.1,00,000/- to the Opposite Party company  herein and time to time demanded the necessary documents like sanctioned building plan in accordance with the drawing provided during agreement/contract, completion certificate and occupation certificate, which are mandatory requirement  for residing into a newly developed building or flats  therein, as per the provisions of the Bengal Municipal Act, 1993. But on all the  occasions, said OPs have assured the complainant that  they are in  possession of those  documents and shall handover the same, soon after registration and handing over the possession of the respective flats in   question.   The complainant required necessary loan from the State Bank of India and as such, a declaration was required from the Opposite Party. But the  OP having informed to the complainant  that as they have a tie-up with State Bank of India, therefore,  there  is no requirement of such declaration.

The complainant has stated that thereafter,  a loan of Rs.20,00,000/-  was sanctioned from State Bank   of India with around 67%  weightage. Balance and around 33% was directly paid by the complainant. Accordingly, the complainant  has already paid around Rs.28,00,000/- to the OP company. For registration of the aforesaid sale deed, the complainanthas  further  required to pay stamp duty of Rs.2,18,504/- and Rs.65,149/- against Registration fees and  corpus deposit, having an aggregate amount of Rs.2,83,653/- only. The complainant further paidRs.30,000/- to an  Advocate as his professional fees   for getting completion of said sale deed  which  has not yet executed by the  OP company.

On 24th April, 2017, the said OPs offered inspection of said flat to the complainant  for handing over the possession of said flat to the complainant through email. .

Even after giving opportunity for  inspection to the complainant and offering for handing over the possession of the said  flat, the OPs failed and neglected to hand over the necessary documents in support of the sanctioned plan and also the necessary copies of the completion and  occupation certificate.  The complainant measured the said flat in accordance with  the “As Built drawing” provided by the OP and  surprisingly  found that the actual measurement of the said  flat  is only 864.75  sq. ft. carpet area in  place of 971 sq. ft. (against saleable super built-up area of 1305 sq. ft).  But the OP company has  claimed to provide carpet area of 921 sq. ft. only.

Under these circumstances, the total saleable super built up area stands 1162 sq. ft. only which  is less 143 sq. ft.  than the saleable super  built up area. Thereafter,   on several occasions, the complainant requested the OP  to return the proportionate sale price taken  from the complainant  having an aggregate amount of Rs.2,73,130/- only for less area of 143 sq. ft. @ Rs.1910 per sq. ft.

On 6th July, 2017, the  complainant  through his learned Advocate sent a legal notice to the OPs calling to hand over the  flat as per the schedule mentioned in the sale deed or pay compensation for the same. After  receiving the notice   the OP company has given reply  on 31st July, 2017. The complainant has always intended to  purchase a legal flat within the said locale and upon incurring such huge costs, he is entitled to have the same. In the premises, an appropriate order be passed directing the OP to hand over the  flat along with the compensation, as an equitable relief to the complainant  and to  execute and register the deed of conveyance  in favour of the complainant. The action of the OPs is an example of deficiency  in service on the part of the OPs. They have collected the entire sale consideration of said flat but failed to provide the documents, pertaining to validity and/or  legality of said flat to the complainant. The OP company  has constructed the said building illegally  by gross deviation from the actual offer plan and thus complainant is suffering from mental  agony and loss and damages on day to day basis and which is reasonably assessed Rs.6,00,000/-.

Hence, the application praying for direction upon OPs to handover, execute and register the deed of conveyance of the  3BHK flat of having a  space of 1305 sq. ft. along with car parking space being flat No. 12B3 (12th floor) at the Premises No. Calcutta Riverside, Tower 1, Phase 1, Budge Budge  Trunk road, Batanagar, District South 24 Parganas as per the Agreement dated 15.09.2011 within specific  time  along with refund of extra amount for providing  less area of 143 sq. ft. @ 1910/- per sq. ft. and compensation of Rs.10,71,930/- mentioned in Paragraph 19 of the petition of complaint, Rs.6,00,000/- for harassment, mental agony and huge amount of   financial losses and litigation cost and interest  at the rate of the 18% per annum and interest upon award and pendente lite interest.

OP No.1 appeared before this Commission and filed their written version.  In their written version, OP No.1 denied all material allegations inter alia stated that this Commission does not have jurisdiction to entertain, try or determine the complaint.  The complainant has mischievously and wrongly conferred jurisdiction before this Commission.  The complaint is not maintainable and the complainant is not consumer within the meaning of CP Act, 1986.  The complainant is guilty of suppression and he has approached this Commission with unclean hand and on that ground alone, the complaint be dismissed in limini.  There is no cause of action.  The OP No.1 has not supplied any defective goods to the complainant nor has OP No.1 provided any deficiency in services.  By an order of Hon’ble High Court dated 09.09.2014 Calcutta Riverbank Holding Pvt. Ltd. was merged and/or amalgamated to Riverbank Developers Pvt. Ltd.  The complainant vide an application form dated 11.07.2011 had applied for an allotment in the project developed by OP No.1.  Accordingly, the complainant has opted for an installment based scheme and the application form was accompanied with the amount of Rs.1,00,000/- as application money.  Pursuant to the submission of such application form, the OP No.1 issued the complainant transfer provisional allotment letter dated 15.09.2011 allotting  Apartment No. 12B3 on 12th floor at the project site from its erstwhile owners namely Mr. Jaideep Roy and Mrs. Sangita Roy and Mr. Madan Mohan Roy to the complainant.  Such allotment letter was accompanied with payment schedule.  OP No.1 also issued a provisional allotment letter dated 16.09.2011 in favour of the complainant.  Total cost of apartment was fixed at Rs.27,52,550/- including cost towards unit charges of the Apartment, car parking charges, PLC and other charges.  Thereafter, the complainant applied for a home loan with a sanctioned amount of Rs.20,35,080/-  from SBI and the OP No.1 issued a letter dated 25.11.2011 expressing their no objection with regard to permission to mortgage the said Apartment. The OP No.1 has periodically issued the demand notice as per payment schedule.  From the very beginning, complainant has failed to maintain the terms of payment as per schedule.  A tabular compilation of the demands raised and the delay caused in making payment as on August 06, 2018 which  is annexed with the written version.  Upon inspection, complainant indicated the few snags which were brought to the OP’s notice vide e-mail dated 28.04.2016.  The OP No.1 was very prompt in addressing such issues and replied to that e-mail on the same date saying that they had duly taken note of such issues and if there is any issues that would be taken care before handing over the Apartment.  Complainant again sent an e-mail dated 26.06.2016 regarding dimensional details of the room and installation of French doors in the said Apartment.  OP No.1 categorically addressed all issues vide their letter dated 29.07.2016 with respect to dimensional details. The OP No.1 replied that original plan of the said project was conceived with 200x100x100 mm concrete blocks where internal and external wall thickness was 200mm and 100 mm respectively for Tower -1.  However, the 5th floor onwards of Tower-1 and all floors in Tower-2 followed the dimensional measurement of 250x125x75 mm to maintain quality standard.  As a result,though the external wall was 200 mm the internal thickness became 125 mm, so there was loss of 25 mm owing to maintaining  the safety of the building. On the issue of sliding balcony doors, the management decided that partly fixing one part and keeping the other part open would help in increasing opening size of doors which in turn would benefit the customer.

The OP No. 1  has also stated that Clause No. 17 of the GTC provides that  the OP No. 1 would not entertain  any  request  for  modification in the internal layout of the Apartments and external façade of the building. It further provides all plans  specifications etc. are only tentative in nature and are subject  to variation. Further,  the OP No. 1 in its email dated 26.11.2016 has provided a detailed clarification to the various queries raised by the complainant. Changing the door type at this juncture, would makethe balcony space narrow which will  not  benefit the complainant. Moreover OP No. 1 company was ready to allow   discount to the tune of Rs.57,300 as a special gesture towards the delay charges on outstanding amount as on date to be paid by the complaint to OP No. 1. The OP No. 1 allowed such special incentive only to expedite the hand over process which was pending  for a long time. Subsequently, the  complainant in multiple  emails addressed the same issue again  and again to OP No. 1.  And OP No. 1 replied  with explanation. It is settled position of law that a brochure issued in a residential project is only an indicative document and at most  an invitation to offer under the provisions of the law of contract. The representation made in the brochure are merely conceptual in nature which  are not  promises which the  company may be held bound. On 29.06.2017, OP No. 1 again raised reminder demand notice for payment of outstanding dues and handing of the  said Apartment. Despite addressing the complainant’s issues  that the OP No. 1          was shocked to receive a legal notice dated 06.07.2017 with the allegation of providing less area of the Apartment. The measurement of the site was not carried  in presence  of the representative of the OP No. 1. The occupancy certificate in  respect of the said project is in possession of the OP No. 1 and  the same is made available in the designated website of the OP No. 1. The stamp duty charge and registration fees was levied in accordance with the GTC. Such costs are variable in nature depending on the date on which such payment was made by the  complainant. The OP No. 1 cannot be made liable for non-registration  of conveyance deed in respect of the said apartment. All other allegations are denied by OP No. 1 and some statements mentioned in the petition of complaint are matters of record. The OP No. 1 has repeatedly called upon the complainant to take possession of the said apartment and execute the conveyance deed.  However, the complainant, for reasons only known to him, and on various  pretexts has neither taken the possessionof the  said Apartment nor confirmed a date for execution  and registration  of the conveyance deed in his favour. In any event, the amount of Rs.10,71,930/0- including the amount of Rs.2,73,130 which is the purported sale price  of the alleged difference of 143 sq. ft. in   purported super built up area of the said Apartment arises. The complainant has claimed such  amount twice with a view to mislead this commission. The complainant has been unable to make out a case of deficiency in service under Section 2(1) (g) and 2(1) (o) of CP Act, 1986 and  OP  No. 1 prays for dismissal of the instant complaint.

Though the notices were served upon OPs No. 2 to 6 that neither of the  OPs No. 2 to 6 appeared before this Commission to contest the case by filing  written version. Therefore, the  case was proceeded ex parte against the OPs No. 2 to 6.

In course of argument, Ld. Advocate  for the complainant has submitted before us that the initially  sale  of agreement  was executed  between the parties on 19.07.2011 for purchasing a flat being No. 12B3 at Premises No. Kolkata  Riverside, Tower 1 Phase 1, Budge Budge Trunk Road, Batanagar, District South 24 Parganas.  As per agreement, the measurement of the  flat would be 1305 sq. ft. for a  total consideration of Rs.27,52,550/- excluding Registration charges, Electrical installation charge and other miscellaneous charges.  It was agreed that the flat would be completed and handed over  to  the complainant within two years from  the date of agreement. Before entering into an agreement, it was categorically assured by the OPs that   they would hand over the legally valid sanctioned plan in  accordance with ‘As Built Drawing’ and on the basis of   such assurance of the OPs, the Complainant had paid Rs.1,00,000/- to the  OP company.  Thereafter, the complainant demanded a declaration from the OP  such  as sanctioned plan in accordance with  drawing occupation certificate  etc, but the OPs assured the complainant that they would hand over the documents soon after  register  and handing over the possession of the  respective flat in question. The complainant  has demanded those documents to take loan from State Bank  of India but the OP  Company has  involved the complainant that they have   tied upon with the State Bank of  India and as such, there is no need for such declaration. Thereafter,  an amount of Rs.20,00,000/-  was sanctioned from State Bank  of India with 67%  weightage balance 33% was  directly   paid to the complainant. Accordingly, the complainant has already paid  around 28,00,000/- to the OP company. Ld. Advocate for  the complainant  has stated that the complainant has further required to pay Rs.2,83,653/- for stamp paper and registration fees and corpus deposit.  On 24.04.2017, the OP offered inspection of the said flat and had also offered handing over the possession of the flat to the complainant by email.  Even after giving inspection  to the complainant and  offering handing over the possession of the flat the OPs failed and neglected to hand over the necessary documents, inspection sanctioned plan and necessary copies of  completion and occupation certificate. On calculating thecarpet area from the  drawings the complainant has found that the only measurement of the said flat is 864.75 sq. ft. as  carpet area  in place of 971 sq. ft. (against saleable super built up area of 1305 sq. ft.)  but the OP company has claimed  to provide carpet area of 921 sq. ft. Therefore, there a shortfall of 143 sq. ft. of  saleable super built up area. Therefore, the complainant has requested the OP to refund  the proportionate sale price @Rs.1910 sq. ft. and prayed for refund of Rs.2,73,130/-. After receiving the legal notice from the complainant on 06.06.2017, the OP company repliedon 31.07.2017 denying  all allegations. The  action of OPs is an example of deficiency in service and therefore, the complainant  is suffering from mental agony and loss and damage  on day to day basis which is  reasonably assessed at Rs.6,00,000/-. Therefore, the complainant has prayed for compensation of Rs.10,71,930/-. The complainant has also prayed for  interest@ 18% p.a. upon the awarded amount with the main prayer of handing over the Apartment, execution  and registration of the  deed of conveyance of   the Apartment  in question.

Ld. Advocate for the OP No.  1 has submittedthat the complainant  is the legatee of the   Apartment No.12B3 at Elgin tower 1, Kolkata Riverside which was  transferred from this erstwhile owners. The complainant has not paid the sum payable by him towards the  apartment in question.  The complainant has accepted the allotment letter as well as  terms and conditions of the GTC. The OP No. 1  issued a provisional  allotment letter dated 16.09.2011 in favour of the complainant.  A copy of  transfer provisional allotment letter dated 15.09.2011, provisional allotment letter dated 16.09.2011 along with the payment schedule dated 16.09.2011 and the GTC have already been annexed with the written version  filed by the OP No. 1. The cost of  Apartment is Rs.27,52,550/-. In pursuance of the Payment Schedule, the OP No. 1 has been periodically issuing demand notices. From the very beginning, the complainant  has failed to maintain the  timeliness in terms of making payments. A tabular compilation of the demands raised, and the delay  caused in the making payments as on 06.08.2018 has  already been annexed with the written version of the OP No. 1. It appears from the  ledger dated 16.11.2022, a sum of Rs.5,19,321/- is still due  to be received  from the complainant. Therefore,  despite  raising the  final demand notice, the complainant has not made the requisite payment. Despite not making complete payments towards the allotment  the complainant has sought  for compensation for some purported delay and on the point of allegation for dimension of the apartment. The Ld. Advocate for  the OP No. 1 has submitted that the allegation for shortfall of carpet area is baseless and frivolous. It is prevalent practicethat  before  taking possession of an apartment the allottees entitled to conduct a joint  inspection of the apartment in  collaboration with the representatives of the developer. Upon inspection, the complainant has indicated a few snags which were  brought to the OPs  notice vide email dated 28.04.2016 the OP No. 1 was  very prompt in addressing such issues and further assured that if there are any snags the OP No. 1 would take care of before handing over the apartment. The complainant  again and again   raised  the same issue for the  shortfall of area. The OP No. 1 company has specifically  explained the reason.

The Ld. Advocate for the OP No.1 has further stated that there is no privity of contract between the complainant and OPs No. 2 to 6. The OPs No. 2 to 6 are made parties as Directors. But all of them are not Directors. OP No. 2 is the Director of the Company whereas OP No. 6 is an Executive of the OP No. 1 company. It is settled law that the Director / Executive cannot be made personally  liable  for a contract executed by such Company unless he has accepted  personal liability for such contract. In this connection, the OP No. 1  has cited  judgment passed in  Tristar  Consultants vs. Customers Service India Pvt. Ltd. OPs No. 4 & 5 are appointed by OP No. 1 in the  capacity of  being independent Directors and they had no role to play in day to day transaction of the OP No. 1. Therefore, they cannot be made party in the instant complaint. Impleading OP No. 3 in the instant complaint is futile since he was in no way related to the OP No. 1 company. The Ld. Advocate for the OP No.1 has stated that a Director of a Company owes no fiduciary or contractual duty to third parties to deal with the Company, unless the Directors have made themselves liable by way of guarantee indemnity etc. In this connection, Ld. Advocate for the OP No. 1 has mentioned   Order 1 Rule 10 (2) of CPC 1908 which lays  down the  Court’s power to strike out or add party. The Ld. Advocate for  the OP No. 1 is relied upon the  case of  J. J. LalPvt. Ltd and ors. Vs. Mr. Murali and ors, where it has  been held that where the impleadment  of a person would change  the complex of  the litigation his/her presence is neither necessary for the   decision of question involved in the proceedings nor to enable the Court effectively and completely to adjudicate upon and settle the question involved in the case such a person  is neither  necessary nor an appropriate party. He has also  cited judgment passed in  GouriNaik vs. Arjun Chandra Das, the complainant has not made payment of the entire sum, no  compensation can be awarded to the complainant and he has also prayed for  deletion of  OPs  No. 2 to 6  from the cause title  of the complaint case.

Upon hearing the parties and on perusal of the record, it is admitted fact that the complainant  was provisionally allotted the flat in question measuring about 1305 sq. ft. for a total consideration of Rs.22,52,550/- from the original provisional allottee of the flat on 15.09.2011. From the materials on record it appears to  us that OP No. 1 has issued  transfer of provisional allotment of apartment in question  on 15th September, 2011. The provisional allotment of apartment was issued on September 16, 2011 and on the same date payment schedule of apartments was issued in the name of the complainant.

There is no dispute that the complainant has availed a bank loan and for taking bank loan OP issued  No Objection  Certificate and thereafter the loan sanctioning bank sanctioned the loan in favour of the complainant. It is also admitted fact that on 24.04.2017 OPs offered the inspection  of said  flat to the complainant and further offered handing over the possession of the said flat to the complainant. After inspection of the flat by the complainant the dispute has cropped up. After inspection and on calculation of the carpet area from the drawing provided by the OPs, the complainant calculated a covered flat in accordance with the “As Built Drawing” provided by the OP and found that the actual measurement of the flat is 864.75 sq. ft. in place of 971 sq. ft. against saleable super built up area of 1305 sq. ft.  Therefore, several correspondences made between the parties for  shortfall of area as alleged by the complainant . The complainant has claimed that there is shortfall area of 143 sq. ft. and for that reason he is entitled to get Rs.2,73,130/- @ Rs.1910 / sq. ft. For the alleged dispute, the complainant sent legal notice and he has also  mentioned for the compensation for the shortfall of area. The complainant  has also alleged the stamp  duty and registration charge has already  been increased. Therefore, the OP is entitled to give compensation for the enhanced registration charge and stamp duty and for thesufferings  of the complainant. The complainant has claimed monetary compensation amounting to Rs.6,00,000/-.

On the other hand, the OP has claimed that  the complainant’s allegation with respect to the  dimension of the apartment is completely baseless and frivolous with respect to the dimensional details. The representative of the OP No. 1 replied that the original plan of the said project was  conceived with 200 x 100 x 150 concrete  blocks where internal and external wall thickness was 200 mm and 100 mm respectively for  Tower- I  of the said project. However, the fifth floor onwards  in Tower – I   and all floors in Tower – II, followed traditional dimensional  measurement of 250 x 125 x 75 mm to maintain quality standards. As a result, though the external wall was  200 mm, the internal  thickness  became 125 mm, so there was a loss of 25 mm, owing to maintaining safety    of the building. In this connection, we can refer the Clause No. 17(c)  of the  GTC where it is clearly written that“it is unambiguously agreed  and understood by the allottee that the layout plans and building plans, approximate super built up area of the apartment, specifications of the materials proposed to be used, facilities and components  of the “Elgin at Calcutta Riverside”, building(s) and the Apartment are tentative and are subject to variation, Riverbank Holdings Private Limited may affect such variations, additions, alterations, deduction, deem, appropriate and fit or as may be directed/allowed by any concerned authority”. Moreover, it also appears to us that OP No. 1 in its email dated 26.11.2016 provided detailed clarification to the various queries raised by the complainant. In the instant case, OP No. 1 was ready to allow a discount for a sum of Rs.57,300/- as a special gestures towards delay charges on outstanding amount as  on date to be paid by the complainant.

On perusal of the entire materials on record and all the communications made between the parties it appears  that the OP No. 1 has not denied that there may be shortfall  of area to some extent in the apartment booked by the complainant. On the other hand, the OP No. 1 has also clarified the reason for shortfall of area to maintain the quality and safety of the building.  Now the question is whether there is shortfall  of area of 143 sq. ft.  or less or more. The complainant has measured the  apartment by himself,  no LBS Report or any Engineer Commissioner Report has come forward. There is no specification of carpet area, built up area and super built up area submitted by any LBS, Engineer Commissioner. Moreover, it is pertinent to mention that the measurement of the carpet area is subject to site verification in presence of both parties. But the complainant has not inspected the flat in presence of the representative of the OP Company. In such situation we cannot adjudicate the issue on the basis of self assessment of the complainant that the measurement of the flat area is less, and if so, that to what extent. Therefore the allegation of the shortfall area by the complainant upon the site verification in absence of the representative of the OP Company cannot be entertained and as such we are of considered view that complainant cannot claim compensation for alleged shortfall area of the Apartment in question.

Now we have to consider the ‘Payment Statement’ of the complainant 06.08.2018. It appears to us that the complainant has made various payments after the due date. It has been categorically stated that how many days of delay on making various payments by the complainant. As on 06.08.2018, there is due of Rs.5,88,758/- in different heads which are as follows :

Particulars

Amount Due

Principal Due

1,87,996.00

Stamp Duty & Registration Fees

2,58,653.00

INTEREST ON Delayed Payments

1,42,109.00

Total Outstanding

5,88,758.00

At the time of final argument, the complainant has submitted the document issued by the OP towards due amount payable by the complainant as on 15.07.2016, which comes to Rs.2,35,668/- towards Apartment cost, car parking charges, club member fees, legal charges and outstanding interest amount deducting the compensation (January,2013 to 15.07.2016) and Rs.2,83,653/- towards Corpus Deposit, Stamp Duty and Registration fees. We are of the considered view that complainant is liable to pay the aforementioned amount, i.e., is Rs.5,19,321/- (Rs.2,35,668/- + Rs.2,83,653/-).

To deal with the other prayers of the complainant, as per OP’s statement, the flat is ready in all aspects and they are ready and willing to deliver the possession of the flat to the complainant. But on perusal of the GTC it appears that as per clause no.10, the OP would endeavour to give possession to the allottee(s) within 31st. December, 2012. But in this case, the OP has offered the possession in the year 2016. Though the OP has waived  the amount as compensation for the period January, 2013 to 15th July’2016, the complainant has suffered mental agony and harassment due to delay in delivery of possession of the Apartment and car parking space in question. Upon perusal of all documents it is clear that the Apartment was ready for handover at least 5 to 6 years ago, but despite being intimated on the same the complainant has neither paid the amount nor was agreed to execute and register  the deed of conveyance. On the other hand, it is the obligatory duty on the part of the developer to hand over the possession of the Apartment and execute and register  the deed of conveyance for the same. Therefore, if the Stamp Duty and Registration Charge has been enhanced at present, that amount shall be borne by boththe parties equally. 

As per the statement of the OP Company, the flat is ready in all aspect and they are ready and willing to deliver the possession of the flat to the complainant. The OPs No. 2 to 6 cannot escape their liability from performing their job on behalf of the OP Company. Therefore, for the finality of litigation, we have no hesitation to pass an order directing all the OPs to handover, execute and register the deed of conveyance of the flat in question being No. 12B3at 12th floor at the  premises  No. CalcuttaRiverside, Tower 1, Phase 1,  Budge Budge Trunk Road, Batanagar, District South 24 Parganas along with the covered car parking space upon payment of due amount as on 15.07.2016 by the complainant  .

Accordingly, the complaint succeeds.

Hence,

                   It is

                                              O R D E R E D

The complaint case being No. CC/186/2018  be and the same is allowed on contest against OP No. 1  and allowed against OPs No. 2 to 6 ex parte.

The OPs are directed to handover the apartment along with car parking space in question and  execute and register the deed of conveyance  of the same in  favour of the complainant within 45 (forty-five) days hereof upon receiving the balance due amount of Rs.5,19,321/- (Rupees Five Lacs Nineteen Thousand Three Hundred and Twenty One only) from the complainant.The enhanced cost of registration, if any, shall be borne by both the parties equally.

The OPs are also directed to pay Rs.30,000/- (Rupees thirty thousand) only  for causing harassment and mental agony suffered by the complainant along with litigation cost of Rs.10,000/- (Rupees ten thousand) only within the aforementioned stipulated period.

The complaint case is disposed of accordingly.

 
 
[HON'BLE MR. JUSTICE MANOJIT MANDAL]
PRESIDENT
 
 
[HON'BLE MRS. SAMIKSHA BHATTACHARYA]
MEMBER
 
 
[HON'BLE MR. SHYAMAL KUMAR GHOSH]
MEMBER
 

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