For the Complainant - Mr. Surajit Das Majumdar, Advocate.
For the OPs - Tahira Khatoon, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT :
This is an application u/s.12 of the C.P. Act, 1986.
The brief facts asset out in the complaint are that the complainant had entered into an registered Agreement for Sale dated 20.03.2014 with the OP-1 for purchasing a self-contained flat measuring about 580 Sq. ft. super built up area on the 1st floor of Premises No. 57, North Station Road, Kolkata-700 109 within PanihatiMunicipality together with undivided proportionate share of land at a consideration of Rs.12,76,000/- and Rs.29,000/- was also assessed for Power back up and other charges. Complainant has paid Rs.2,55,200/- as booking money prior to execution of Agreement for sale. He also availed Home Loan of Rs.10,24,252/- from Indiabulls Housing Finance Limited and directly paid Rs.9,92,047/- to the OPs against Demand Drafts dated 28.02.2014, 31.10.2014 and 25.02.2016. Complainant also paid registration cost of Rs.26,500/- to the OP-2 on 19.02.2016. Subsequently, both parties agreed that OPs shall transfer a flat measuring about 704 Sq. ft. Super built up area in the same complex in place of 580 Sq. ft. Thereafter, the complainant had paid Rs.1,50,000/- to the OPs on 27.04.2016 against proper receipts. Thus, the complainant had paid Rs.15,13,247/- out of total consideration of Rs.15,48,800/-. Despite of request neither the OPs received any further instalment nor handover possession of the subject flat. By a legal notice dated 26.03.2018 the complainant expressed his willingness to the balance consideration amount and call upon the OPs to handover possession of the subject flat but such notice was unattended. The OPs are obliged to handover and execute Deed of Conveyance of the subject flat in his favour on receiving balance consideration amount but refusal to handover possession, execute and register such Deed of Conveyance on the part of the OPs is clear deficiency in service. Thus, the complainant filed the instant consumer case praying for certain reliefs like handover possession of the subject flat, execution and registration of the Deed of Conveyance, compensation and litigation cost.
The consumer complaint has been resisted by the OPs on the ground that the instant complaint is not maintainable in its present form and in law. The OPs in their Written Version makes mentioning that a registered Agreement for Sale dated 20.03.2014 was executed in respect of a self-contained flat measuring about 580 Sq. ft. super built up area on the 1st floor of Premises No. No. 57, North Station Road, Kolkata – 700 109 at a consideration of Rs.12,76,000/- and subsequently the OPs agreed to transfer 704 Sq. ft. Super built up area in the proposed building instead of 580 Sq. ft. Complainant paid Rs.26,500/- as registration cost but such amount is not sufficient for registration of Deed of Conveyance in respect of the subject flat. The OPs are ready and willing to execute and register Deed of Conveyance of the subject flat to its physical measurement and on receiving balance consideration amount. Finally, it has been stated by the OPs that there has been no deficiency of service on the part of them and as such, the complaint should be dismissed.
Decision with Reasons
In support of the consumer case, complainant Shri Sujit Kumar Rajak has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OPs.
On the other hand, on behalf of the OPs Shri Tapas Kumar Bhagat has filed evidence through affidavit. They have also given reply against the questionnaire set forth by the complainant.
Undisputedly, the complainant booked a flat being No. ‘F’ on the 1st floor of premises No. 57, North Station Road,Kolkata – 700 109 under Panihati Municipality measuring an area of 580 Sq. ft. super built up area together with undivided proportionate share of land by paying a sum of Rs.2,55,200/- out of total consideration amount of Rs.12,76,000/- . OP-2 being the Director of OP-1, Sea View Impex Pvt. Ltd. entered into a registered Agreement for sale dated 20.03.2014 and also received Rs.10,20,800/- out of total sale price. It is not in dispute that the complainant had paid Rs.20,000/- and Rs.26,500/- to the OP-2 for new electric meter connection and registration purpose of the subject flat. It is true that both parties mutually agreed that the OPs shall transfer a flat measuring about 704 Sq.ft. super built up area on the 1stfloor of Premises No. 57, North Station Road, Kolkata – 700 109 within Panihati Municipality instead of 580 sq.ft. super built up area and total consideration is increased to Rs.15,48,800/- (i.e. at the rate of Rs.2,200/- per sq. ft.). There is documentary evidence that subsequently, complainant paid Rs.2,66,000/- to the OPs against super built up area of 704 sq.ft. of the subject flat. Thus, the complainant had already paid Rs.15,13,247/- out of total consideration of Rs.15,48,800/-/. There is still outstanding of Rs.35,553/- payable by the complainant to the OPs. Complainant expressed his willingness to pay rest amount of consideration amount but the OPs failed to handover possession of the subject flat and also failed to execute and register Deed of Conveyance in spite of receiving Rs.26,500/- as registration cost.
The plea of the OPs is that the subject flat is more than 704 sq.ft. and they requested the complainant to physical measurement of the flat but the complainant did not allow measuring the flat. Registration cost paid by the complainant is too much insufficient for stamp duty and registration cost. Complainant is also liable to pay further of Rs.20,000/- for installation of main meter and new meter connection in the subject flat. If the complainant agreed to measure the subject flat, pay balance consideration amount, balance registration cost and balance amount for installation of main meter and new meter connection in the subject flat in that event they are ready to execute and register Deed of Conveyance in favour of the complainant. There is no deficiency in service and or unfair trade practice on their part.
It would be relevant here to state that on the prayer of the OPs Mr. Samir Banik, LBS of Kamarhati Municipality was appointed as Engineer Commissioner tomeasure the subject flat physically. In pursuance of the Writ, Engineer commissioner physically measured the subject flat in presence of both parties and submitted his report. We also evaluated the report dated 07.05.2019and find that the physical measurement of the subject is 686 sq.ft. super built up area. Thus, it is clearly established that the measurement of the subject flat is less than the super built up area of 704 sq.ft.
The OP-2 being the Director of OP-1 M/s Sea View Impex Pvt. Ltd. has received 95 percent of the entire consideration amount but failed to handover possession of the subject flat and also execute the Deed of Conveyance as per terms & conditions of the Agreement for Sale. This attitude does not shows there was bonafide conduct of the OPs and hence, there is deficiency in service on their part. Therefore, we are of the considered view that there is deficiency of service on the part of the OPs in non-handover of possession of the subject flat and their action in non-execution and registration of the Deed of Conveyance in favour of the complainant amounts to unfair trade practice.
For the reasons stated above, the consumer complaint is allowed on contest against the OPs with a direction to the OP-2 to handover vacant possession of the subject flat and also execute and register Deed of Conveyance in favour of the complainant within 45 days. Complainant is also directed to pay balance consideration amount of Rs.34,753/- to the OP-2 within 30 days from the date of the order. We make it clear that the costs of such registration shall be borne by the complainant. OPs are directed to refund Rs.26,500/- to the complainant within 30 days from the date of the order which was received for the purpose registration cost. Besides above, the complainant is also entitled to get litigation expenses for Rs.5,000/-. No other damages need to be awarded in the circumstances of the case.
Complainant shall be entitled to seek execution of this order in accordance with law, if the OPs transgress to comply the order within the stipulated period.
