FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
C.C. No. 94 of 2017
The petition of complaint is filed by the complainant U/s12 read with section 13 and 14 of the CP Act, 186.
The fact of the case in brief is that the complainants being a bonafide consumer paid the consideration and service charges to the OPs. He further stated that the OP-1 is a Pvt. Ltd Construction Co. having its principal place of business and office at 119/2B, Harish Mukhherjee Road, PS-Bhowanipore, Kolkata-700026 represented by its director ie the OP-2. The OP-2 of this petition of complaint being the director of OP Co. engaged in promoting and developing the land for the purpose of providing residential flats and commercial space to the customers or intending purchaser at large. The OPs 4 to 15 are the registered land owners of the suit property/building. The OP-3 who is the marketing partner of the OP-1 Co. advertised in different daily news paper for selling out the flats built by the OP-1 co.
it is further stated by the complainant that after going the advertisement the complainant had been at the office of the OP-3 for purchasing a flat at Agarpara, 24 Pgs (N) and purchased an application form there from. The complainant and his father Pradip Kumar Das jointly submitted an application on 06.08.2012 in a prescribed format for purchasing a flat measuring about super build up area of 826 sq .ft. in the 3rd floor of the “Shivam Aprartment “ at 47, (H), North station Road, Agarpara, Kolkata-700109 and deposited Rs. 1,00,000/- (Rs one lac only) by and A/c payee cheque being No. 398985 drawn on UBIOCH Branch as per direction of the OPs 1 to 3 and the photocopy of the application dated 06.08.2012 is annexed herewith as annexure “A”.
It is further stated that on receipt of the said application the OP-1 issued the allotment letter dated 27.08.2012 and intimated the complainant that the application of the complainant had been accepted by the OPs and asked the complainant to enter into agreement for sale within 10.09.2012. Accordingly, the complainant went to the office of OP-2 along with his father entered into agreement for sale with the OPs. The complainant alone entered into the agreement for sale with the OP-2. The photocopy of agreement for sale dated 15.09.2012 has been annexed herewith as annexure “B” and the allotment letter dated 27.08.2012 is annexed as annexure “C”.
As per agreement for sale the OPs 1and 2 agreed to complete and deliver the possession of the flat within 30 months from the date of execution of the said agreement for sale.
The complainant paid the consideration money of the said flat periodically as agreed in the said agreement for sale without any default but the OPs have failed to deliver the possession of the flat in question within 30 months and lastly, after 38 months the OP-2 handed over the said flat to the complainant but failed to handover the registered deed of conveyance even on receipt the entire consideration money amounting to Rs. 16,93,300/- as agreed by and between the parties id the complainant and the OPs 1 and 2.
It is also alleged by the complainant that no completion certificate and the copy of building plan duly approved by the Panihati Municipality has been handed over to the complainant by the OPs 1 and 2 till date.
It is also alleged by the complainant that the OP-2 has already received Rs. 1,50,000/- only for registration of flat in question but till date no fruitful step has been taken by them to that effect.
Thereafter, even on several request made by the complainant the OP did not take any effort for registration of the flat in question then the complainant appointed a surveyor for checking the measurement of the flat in question in the month of December, 2016. The surveyor after examining the measuring intimated the complainant that the actual construction of the floor is not matching with the copy of floor plan attached with the agreement for sale dated 15.09.2012. Then and there the complainant made contact with the OP-2 and asked him to provide the building sanction plan along with copy of revised building plan if any issued by the Panihati Municipality but the OP-2 failed to provide any documents as asked by the complainant then the complainant without having any other alternative issued legal notice upon the OPs 1 and 2 through his conducting advocate. It is the allegation of the complainant that OPs 1 and 2 are willfully remained abstain from handing over the sanction building plan approved by the Panihiti Municipality to the complainant.
It Is alleged by the complainant that there is a gross negligence on the part of the OP-2 in rendering service to their customer like the complainant and their conduct is amounting to deficiency in service for which the complainant suffered huge mental pain and agony as well as financial loss and for that reason the OPs 1 and 2 are liable to compensate to the complainant.
Hence, the petition of complaint is filed by the complainant with a prayer to give direction the OPs 1 and 2 to refund construction money of Rs. 16,93,300/- along with registration fee of Rs. 1,53,000/- to the complainant either jointly or severally and also give direction to the OPs 1 and 2 to pay compensation of Rs. 1,00,000/- to the complainant for harassment mental pain and agony and deficiency in service along with interest @ 18 % p.a. either jointly or severally form the date of execution of agreement for sale dated 15.09.2012 till realization along with litigation cost of Rs. 15,000/-.
The OPs 1 and 2 have contested the claim application by fling a WV denying all the material allegation leveled against them.
it s the case of the OPs 1 and 2 that the complainant has no cause of action to file the instant case and the case is barred by limitation. It is also bad for defect of the parties.
It is also further case of the OPs 1 and 2 that this Forum has no territorial and pecuniary jurisdiction to entertain this matter.
The OPs 1 and 2 further stated that the complainants are not consumers within the ambid of CP Act, 1986.
It is further stated by the OPs 1 and 2 that agreement for sale is not properly stand and not registered accordingly Indian Registration Act 1908.
it is further stated by the OPs 1 and 2 that admittedly the complainant entered into agreement for sale with the OP1and 2 and as per revised plan he has got the possession of the super build up area measuring about 967.36 sq. ft. though the agreement was for 826 sq. ft. and for that reason the OPs 1 and 2 are entitle to get the value of the extra 111.36 sq. ft. space as per agreement amounting to Rs. 2,82,720/- only. The lay outside plan site is annexed herewith as annexure “A”. The OPs 1 and 2 further stated that the initial plan was revised subsequently and that was sanctioned vide sanction No. SPL/1033 dated 10.04.2014 which is annexed as annexure “B”. The OPs 1 and 2 further stated that the complainant has got 141.36 sq. ft. space extra and for that reason the OPs 1 and 2 are entitled to get Rs. 2,82,720/- only more from the complainant. They are applied for completion certificate before the proper authority and they will hand over the same to the complainant after getting it from authority. So, there is /was no willful negligence on the part of the OPs 1 and 2 to deliver the possession of the subject flat to the complainant and they agreed to make registration of the flat after getting the money of Rs 2,82,720/- for the extra space of the complainant. It is further stated by the OPs 1 and 2 that the cause of action of this case arose at 47 (H), North Station Road, Agarpara, Dist North 24 Pgs, So which is beyond the territorial jurisdiction of this forum. Thus, the petition of complaint is liable to be dismissed due to want territorial jurisdiction of this forum.
The complainant filed this case U/s 35 of CP Act 2019 .
The fact of the case in brief is that the complainant being a senior citizen intend to purchase a residential flat approached the OP developer.
Accordingly the complainant entered into an agreement for sale with the OP-2 for purchasing one residential flat with the developer under the name and style GWE Engineer and Consultants Pvt. Ltd. On 18.11.2015 respect of self contained flat measuring super build up area of 1139 ft more or less on the 2nd floor at the south west side along with one car parking space measuring 105 sq. ft and also one room measuring 100 sq ft super build up area on the ground floor for office cum godown of the said premises situated at 106 A, Kumahar Para Lane, P S Kasba, Kolkata-700042 at a consideration of Rs. 34,50,000/-. It was agreed by the developer that the construction would be completed within 12 months from the date of agreement for sale.
It is further stated by the complainant that he paid more money time to time to the OP-1 amounting to Rs. 40,25,000/- as per demand of the OP-1. It is alleged that the OP-1 also demanded and received the extra amount on the ground that he provided 400 sq ft office cum godown space on the ground floor of same premises instead of 100 sq. ft. mentioned in the agreement for sale dated 18.11.2015 and the complainant paid the same to the OP-1 in good faith.
It is further stated that the OP-1 promised to hand over the possession of the flat on the 2nd floor south west side with one car parking space and one office cum godown measuring about 400 sq. ft in the same premises thereafter the complainant on several occasion requested the OP to execute and register the deed of conveyance in respect of the said flat car parking space office & cum godown space but the OP-1 again demanded Rs. 13,00,000/- from the complainant on account of registration of the deed of conveyance and the complainant on good faith paid the amount of Rs. 13,00,000/- to the OP -1 developer but till date the developer did not execute and register deed of conveyance in favour of the complainant in respect of the afore mentioned flat car parking space and office cum godown space. Such negligence of the OP-1 caused harassment mental pain to the complainant which is amounting to deficiency in service and unfair trade practice of the OP-1 developer.
Hence, the case is filed by the complainant against the OPs with a prayer to give direction to the OPs to execute and register deed of conveyance in respect of the subject flat, car parking office cum godown space as mentioned in the schedule of petition of complaint in favour of the complainant and also give direction to the OP-1 developer to refund of Rs. 13,00,000/- to the complainant along with interest @ 18 % p.a. from the date of receipt till realization. It is also prayed by the complainant to give direction to the OP-1 to pay compensation of Rs. 5,00,000/- to the complainant for delay in delivery of possession of the flat, car parking space, and godown space along with litigation cost of Rs. 1,00,000/-.
The OPs 1 to 5 did not contest the case by submitting the WV hence the case do run ex parte against them vide order dated 17.11.2022. The case do run ex parte against OPs 8 to 10 vide order dated 01.02.2023. The OPs 6 and 7 have contested the case by submitting WV denying all the material allegation leveled against them.
It is the case of the contesting OPs that the complainant has got no local standi to file the case against the OPs 6 and 7. It is also stated b y the OPs 6 and 7 in WV that this commission
has got no jurisdiction to try this case. it is stated by the OPs 6 and 7 that they were joint owner of piece of land measuring about 6 cottahs 7 chittaks 20 sq. ft with 2 storied building being Municipal Premises No. 106A, Kumahar Para Lane, Kasba, Kolkata-700042 with other owners namely Raju Paul, Rina Karmkar and Mina Paul.
It is further stated that one GWE Engineer entered into agreement on 05.08.2011 with the erstwhile owners of afore land and structure intending to raise a multi storied building by 14+4 months after demolishing the existing structure thereon.
The said agreement dated 05.08.2011 was covenanted that the developer shall arose 4 flats each having 600 sq. ft among the owners towards owner allocation and shall provide alternate rented accommodation on its own cost during the work in progress. Beside necessary charges, developer further undertook to go on paying Rs. 20,000/- per months to the owners in case if the developer failed to make over owner allocation stating from the end of the contractual period that money shall not be refundable or adjustable believing the same the owner left the residential accommodation and shifted to a rented accommodation at 123A, Swinhoe lane, PS-kasba, kolkata-7000042 and the existing building all the building premises in question was completed demolished at the instant of said developer where the land owner used to run their shop for procuring their liability hood.
It is alleged by the contesting OPs 6 and 7 that the developer failed to discharge his duties in terms and conditions of the agreement dated 05.08.2011 and one of the directors of GWE being one Sri Rajesh Kumar Jaiswal expressed disability to discharge the obligation of the agreement in question they also stopped making payment of rent from May, 2014 which the owners ie OPs 6 and 7 had to incurred from their own pocket for such reason. The contesting OPs suffered a huge loss of Rs. 14,62,000/- and they were also facing several litigation in several courts. Under such circumstances the contesting OPs compelled to enter into another agreement for development afresh on 17.07.2016 with a new developer namely Sri Anath Bandhu Paul ie OP-1.
it is further alleged by the contesting OPs that all the owners of the premises gave various powers bonafide to the prior developer executing the agreement dated 05.08.2011and the connecting power of attorney which they abused by refraining themselves from comply which compelled the contesting OPs to enter into a contract De-novo with subsequent developer after cancellation the prior one. The present developer has been empowered to sell out the proposed flat independently to the intending purchaser out of the developer allocations. it is the case of the OPs that the complainant is not entitled to get relief as prayed for and filed this case with ulterior motive thus the petition of complaint as filed by the complainant is liable to be dismissed with cost.
In view of above stated pleadings the point of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On careful perusal of the materials as well as evidence on record, it is revealed that the case is well maintainable in the eye of law and this commission has got ample jurisdiction to try this case.
It is the case of the complainant that being and intending purchaser of a residential flat he entered into agreement with the OPs ie land owner ad developer for purchasing a flat in the premises in question situated at 106A, Kumhar Para lane, Kolkata-700042. The agreement for sale was executed on 27.09.2011 for the subject flat measuring about super build up area 1139 sq. ft more or less on 2nd floor at the south west side of premises in question along with one car parking space measuring about 105 sq. ft. along with one room in the ground floor for office cum store room measuring about 100 sq. ft super build up area in the premises in question at a consideration of Rs. 34,50,000/- .
it is also the case of the complainant that in terms of the agreement for sale the construction of the building in question required to be completed by the developer ie OP-1 within 12 (twelve ) month from the date of execution of agreement for sale and paid a sum of Rs Rs. 40,35,000 in total to the OP-1 toward s the consideration money of the flat time to time as per demand of the OP-1 which is shown from the money receipt issued by M/s Anath Bandhu Paul on different dates and GWE Engineer and Consultant Pvt. Ltd. dated 29.09.2011. from the evidence on record it is proved that the contesting OPs has challenged that the complainant is not a consumer but they failed to prove the same by adducing any sort of evidence rather from the money receipt issued by the M/s Anath Bandhu Paul and GWE Engineer and Consultant Pvt. Ltd. on different dates in favour of the complainants after receiving money towards the consideration of subject flat car parking space and one room measuring about 100 sq ft on ground floor of the premises in question. It is crystal clear that the complainant is a consumer within ambit of CP Act 2019 and the OPs are the service provider.
It is admitted fact that the OP-1 handed over the possession of the subject flat to the complainant in the premises in question on 28.12.2017 but since then they did not execute the registered deed of conveyance of the subject flat in favour of the complainant. It is evident from the evidence on record that the complainant on several occasion requested the OPs specially OP-1 to execute the deed of conveyance in favour of the complainant in respect of the flat in question but they did not pay any heed to her request and took the plea that they have no personal knowledge about the payment of money made by the complainant though they are not liable to pay the same but the complainant specially make complaint against the OPs and from the money receipt issued by the OP-1 on receipt of the money. It is found that all the money receipt issued by the OP-1 Ananth Bandhu Paul whom the OPs made the developer vide development agreement dated 17.06.2016.
Under such circumstances, the service provider/ OPs have no scope to deny their responsibilities towards the consumer complainant.
So, from the evidence on record it is proved that present OP-1 Anath Bandhu Paul received from the complainant amounting to Rs. 40,500/- but the consideration amount of the subject flat and car parking space and also the 100 sq. ft in the ground floor was of Rs. 40,50,000/- .
From the evidence on record it is also evident that the OP-1 developer further taken a sum of Rs. 13,00,000/- more from the complainant for the purpose of registration of the deed of conveyance but till date the OPs did not execute and register deed of conveyance in favour of the complainant in respect of the subject property. Such conduct of the OPs proved the negligence and deficiency in service on their part towards the complainant.
Under such circumstances, it is observed by this commission that the complainant being a consumer could be able to prove his case against the OPs and also could be able to prove that negligence and deficiency in service on the part of the OPs by adducing proper and cogent evidence, and on their basis this commission has got no hesitation to hold the view that the complainant could be able to prove her case beyond all reasonable doubt and is entitled to get the relief as prayed for.
All the points of consideration are thus considered and decided favorably to the complainant.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is allowed on contest against OPs 6 and 7 and ex parte against OPs 1 to 5 and 8 to 10 with cost of Rs. 5,000/-.
The complainant do get the decree as prayed for.
The OPs are directed to execute and register deed of conveyance in respect of the subject flat, car parking space and office cum godown space as mentioned in schedule of petition of complaint in favour of the complainant within 45 days from this date of order.
The OP-1 is further directed to refund the excess amount of Rs. 13,00,000/- to the complainant along with interest @ 6% p.a. on the amount stated above from the date of filing of this case till realization within 45 days from this date of order.
The OP-1 is further directed to pay compensation to the complainant of a sum of Rs. 30,000/- for deficiency in service, negligence and mental pain and agony along with litigation cost of Rs. 10,000/- within 45 days from this date of order id the complainant will be at liberty to execute the decree as per law by a separate proceedings.
