JUDGEMENT
The present complainant by filing this complaint has submitted thathe intended to purchase one flat measuring carpet area of 363 sq. ft. on the ground floor on South-North side of the premises No. 35B, Khudiran Bose Sarani, Belgachia, P.S. Tala, Ward No. 3 of Kolkata Municipal Corporation, Kolkata – 700037 by entering into a registered agreement with the owners and developers at a consideration of Rs. 1,20,000/- with some stipulated terms and conditions. Fact remains complainant was the tenant since long back of that premised under the landlady of Smt. SaraswatiDey in respect of said premises and in respect of that old construction there and for the purpose of the development of the said building by the developer as per agreement, complainant was shifted temporarily in a rented premises at 16/2A, Raja Manindra Road, P.S.-Chitpore, Kolkata-700037 and development agreement was made on 17.06.2006 and in respect of the said agreement complainant has been residing at the said address under the care of op no.2 developer and complainant and his family members are temporarily residing at their premises facing huge problems but the ops are well aware and for entering into the agreement, complainant paid sum of Rs. 3,000/- as advance money out of Rs. 1,20,000/- and on several occasions complainant requested the op no.2 developer to build up the said carpet area which is still unveiled construction and as per agreement op shall be liable to handover the possession of the said flat within 30 months from the date of the execution of the said agreement on 17.08.2006. But till now the op has not handed over the said flat, as per said agreement op is bound to pay a sum of Rs. 2,600/- for every month and if op fails to handover the possession of the said flat within 30 months from the date of execution of the said agreement and has not complied with the terms and conditions of the said agreementfor which complainant has been suffering much and such a demand notice was sent through his Lawyer by sending it registered with A/D to Consumer Affairs Deptt. dated 21.11.2013 but no reply has been received from the part of the op and for negligent and deficient manner of service on the part of the op and also for not discharging their liability as owner and developer and for their deficiency of service complainant has filed this complaint praying for redressal and for directing the op to handover the said flat and also compensation etc.
On the contrary op no.2 Mahamaya Khan by filing written statement submitted that as per agreement complainant was bound to pay balance amount of Rs. 1,17,000/- within 30 months from the date of execution of the agreement i.e. on 17.08.2006. No doubt the said agreement was for sale executed on 17.08.2006 at the office of Additional Registrar and as per agreement complainant was bound to pay that balance amount of Rs. 1,17,000/- by 09.02.2009. But complainant failed and neglected and has not paid the same. So, the said agreement and terms of the agreement has been violated by the complainant for which complainant is not entitled to get any benefit. But even then by that written version who has expressed that op is willing to rebuild and reconstruct the flat if Ld. Forum allow 6 months’ time on payment of balance consideration amount and for which op no.2 has prayed for dismissal of this case.
On the other hand op no.1 by filing this written version stated that the present complaint is not maintainable and it is specifically mentioned that op nos. 1 to 3 are the joint owners in respect of their individual undivided 1/4th equal share in the property and in respect of the property in question and no doubt the ops decided to develop the said property by raising a multi-storied building in accordance with the sanctioned plan of KMC and the developer approached the owner with proposal for construction of a multi storied building and for which a settlement was made in between the developer, owners and the tenants/complainant and developer took all responsibility to negotiate with the tenants of the said premises either by vacating the tenants or by temporary shifting them from their respective tenanted portion and no agreement was executed and it is the liability of the developer to perform the terms and conditions of the agreement.
Moreover owners are not responsible for the proposed construction, owners shall be responsible to make necessary deed as it would be prepared by the developer and for that purpose the owner was executed and registered a General Power of Attorney in favour of the developer on the terms and conditions etc. So it is the complete responsibility of the developer to perform as per agreement and for which the owners are not liable for that and in the above circumstances, op no.1 has prayed for dismissal of this case.
Decision with reasons
On overall evaluation of the argument as advanced by the Ld. Lawyers of both the parties and also considering the written version of the op no.2 Mahamaya Khan we are convinced to hold that op no.2 Developer has admitted that he on behalf of self and on behalf of owners executed that agreement to sale in favour of the complainant by registering the same on 17.08.2006. no doubt as per agreement op no.2 shall handover and deliver the said disputed flat on the ground floor having a carpet area 363 sq. ft. within 30 months from the date of execution of the said agreement and truth is that op no.2 was responsible and liable to handover possession by 09.02.2009. But from the written version of op no.2 it is proved that possession has not been handed over because the said flat has not yet been completed after construction. But reason is shown by the op no,2 by saying that as per agreement to sale by 09.02.2009, complainant was liable to pay the balance amount on receipt of Rs. 1,17,000/- but that has not been paid and in this regard after considering the evidence of the complainant and materials, it is found that complainant has not paid that amount within 09.02.2009 and for non-payment of the same there is no explanation.
So, invariably considering that agreement it is found that developer considered the interest of the then existing tenants and give them service in consideration and having rights shifted them to other tenanted portion and that rent has been paid. Fact remains as per agreement it was the bounded duty on the part of the complainant to deposit the entire amount by 09.02.2009. But complainant has not paid it and not even now and complainant has not sent any letter to the op that they are willing to pay the same when necessary. So, considering that it is clear that there was certain fault on the part of the complainant. But now the op no.2 admitted that he shall rebuild and reconstruct the flat and hand over it within 6 months if complainant pays the balance consideration amount. So, we are convinced to hold that balance consideration amount must be paid at first as per agreement. But fact remains that since 2006 and till 09.02.2009 complainant did not show any eagerness to pay the balance amount of Rs. 1,17,000/-. But in the meantime invariably some interest must be charged and complainant must have to pay that for getting the flat.
In the light of above situation and also considering the written version and admission of the op no.2, developer we find that the complainant must have to pay the balance amount of Rs. 1,50,000/- in place of Rs. 1,17,000/- to the op no.2 and op no.2 shall complete the said flat and hand over it to the complainant and in the meantime complainant shall have to deposit Rs. 1,50,000/- to this Forum and it shall be kept in the account of this Forum but on delivery of possession of the flat by the op no.2 by ops, the said amount shall be disbursed to the op no.2.
But fact remains that the other ops having no liability except executing the deed as owners and invariably to that effect they shall have to discharge their liability as and when the deed shall be prepared after getting possession of the flat and in respect of the flat and accordingly the complaint succeeds against the op nos. 1 & 2 on contest.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op nos. 1 & 2 and exparte against op no.3. But the cost shall be paid by the op no.2 to the complainant for a sum ofRs. 5,000/-.
Op no.2 is hereby directed to complete the flat as per agreement within 6 months from the date of this order and to hand over the possession on proper receipt of delivery possession of flat to the complainant by op no.2 and other ops and that possession letter shall be submitted before this Forum by the complainant to satisfy that complainant has taken the flat but in the meantime within 2 months complainant shall have to deposit Rs. 1,50,000/- to this Forum as balance consideration amount including interest which shall be disbursed to the op no.2 after submission of delivery of possession letter by the op no.2 and other to this Forum.
If op no.2 and other ops do not comply the order of this Forum and do not deliver the possession of the flat within 6 months from the date of this order in that case op no.2 shall have to pay a sum of Rs. 6,00,000/- to the complainant and in that case the complainant shall not have to get the said flat and this agreement shall be treated as cancelled.
If complainant fails to pay the balance amount of Rs. 1,50,000/- as per order of this Forum within 2 months from the date of this order in that case complainant shall have to get back only the deposited amount of Rs. 3,000/- from the op no.2 and the cost of this case as awarded and the terms and conditions of the agreement shall be treated as cancelled. But if it is found that op no.2 is not complying order in that case op no.2 shall pay penal damages at the rate Rs. 10,000/- per month before this Forum till full satisfaction of the decree.
Ops are directed to comply the order very strictly and also complainant shall have to comply the order very strictly otherwise penal action shall be started against both the parties as per observation of this judgement and if it is found that ops violate the spirit of this order in that case ops shall be penalized as per provision 27 of C.P. Act 1986 and further penalty and fine may be imposed against them.
