Dt. of filing – 04/07/2018
Dt. of Judgement – 31/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Swarup Kumar Saha under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Nirmal Mondal 2) M/s. AG Construction represented by its sole proprietor Sri Soumen Chakraborty alleging deficiency in rendering services on their part.
Complainant’s case in brief is that OP No.1 is the owner of the land measuring more or less 3 Cottahs 8 Chittack 0 Sq ft situated at Mouza Purba Barisha, J,L.No.23 comprising R.S. Dag No.1795 being known and numbered as Municipal Premises No.220 under Police Station Haridevpur. Opposite Party No.2 is the developer. A development agreement was entered into between Opposite Party No.1 and Opposite Party No.2 on 6/6/2014 for the development of the said landed property for constructing multi-storied building. Building has been raised by the Opposite Party No.2 after sanction of the building plan and during the said period of construction Opposite Party No.2 entered into an agreement for sale with the Complainant on 16/7/2014 in respect of the flat mentioned in the schedule of complaint petition at a total consideration price of Rs.10,00,000/-. Opposite Party No.2 received an amount of Rs.1,90,000/- out of the said total consideration price on the date of agreement and thereafter Complainant has paid to the Opposite Party No.2 sum of Rs.3,14,000/- towards earnest money and part payment, on different dates. It was agreed that developer Opposite Party No.2 shall deliver the khas possession of the flat within 15 months/455 days from the date of execution of the said agreement for sale and the deed will also be executed and registered in favour of the Complainant. But the OP developer has failed to complete the construction job within the said stipulated period and so the possession has not been handed over. Inspite of the repeated letters sent by the Complainant to the Opposite Party for delivery of possession of the flat and to execute the deed, Opposite Parties have neither delivered the possession nor have executed the deed. Complainant obtained loan to the tune of Rs.5,00,000/- from the United Bank of India and the Bank has already disbursed the entire amount in favour of the Opposite Party No.2 developer. Only an amount of Rs.1,86,000/- was due to be paid towards balance consideration price. Complainant has always been ready with the said balance consideration price and shall pay the same before the execution and registration of Deed of Conveyance in favour of the Complainant. Due to non-delivery of the possession of the flat Complainant is compelled to reside in rented accommodation by paying monthly rent of Rs.8,000/- and thus Opposite Party developer is liable to pay the same. So the instant case has been filed by the Complainant for directing the Opposite Parties to complete the construction job of the schedule flat and to execute and register the Deed of Conveyance in favour of the Complainant on receiving the balance consideration amount of Rs.1,86,000/- and to deliver the peaceful possession of the flat to the Complainant, to reimburse the monthly rent paid by the Complainant, to pay compensation of Rs.2,00,000/- and to pay litigation cost of Rs.50,000/- and to handover the copy of the documents relating to the property of the said premises.
Complainant has annexed with the complaint petition, copy of agreement for sale, money receipts, loan sanction letter, statement of bank account and the copy of the letter sent by the Opposite Party No.2 to the Complainant.
On perusal of record it appears inspite of service of notice Opposite Parties did not take any step and so the case has been heard ex-parte against Opposite Parties.
So the points require determination:-
- Whether Complainant is entitled to the relief as prayed for?
Decision with reasons
It appears from the agreement for sale that the agreement was entered into between Complainant and Opposite Party No.2 on 16/7/2014 and Opposite Party No.1, the owner was a confirming party. It was agreed to sell the schedule flat and to execute and register Deed of Conveyance relating to the said flat described in the schedule ‘B’ of the agreement within a period of 15 months from the date of the said agreement. According to the Complainant he has paid the almost entire amount. Only amount of Rs.1,86,000/- is due to be paid towards balance consideration price. To this effect he has also filed the statement of bank account and money receipts showing the payments made by him as claimed in the complaint petition.
On perusal of the letter dated 13/3/2018 sent by Opposite Party No.2 to the Complainant, he assured the Complainant that 90% of the construction was completed and he would be registering the flat in the month of June, 2018. So it is apparent that the possession of the flat has not been handed over to the Complainant. It is also claimed by the Complainant due to non-delivery of the possession of the flat he has been staying in the rental premises for which he has to pay rent of Rs.8,000/- per month. In support of his said claim Complainant has also filed certain rent receipts showing the payment of rent by him. So on consideration of the entire document filed in this case Complainant is able to establish his case that there has been deficiency in service on the part of the Opposite Parties and thus entitled to reliefs, especially when there is no contrary evidence before this Forum to counter the case of the Complainant. So the Complainant is entitled to possession and execution and registration of Deed of Conveyance on payment of balance consideration amount. An amount of Rs.1,00,000/- as compensation would be justified, towards the expenses borne for payment of rent due to non-delivery of possession and also as Complainant has to bear the cost of registration as per present market value.
These points are answered accordingly.
Hence,
ORDERED
CC/405/2018 is allowed ex-parte against the Opposite Parties. Opposite Parties are hereby directed to handover the possession of schedule flat in favour of the Complainant and to execute and register the Deed of Conveyance in his favour within three months from the date of this order on payment of balance consideration amount of Rs.1,86,000/- by the Complainant. Opposite Parties are further directed to pay an amount of Rs.1,00,000/- as compensation and litigation cost of Rs.10,000/- within the aforesaid period of three months failing which the amount shall carry interest @ 10% p.a till its realization.
