This complaint is filed by the complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to execute and register the deed of conveyance in respect of the schedule flat along with undivided proportionate share of land in favour of the complainant till filing of this complaint.
The brief fact of the case of the Complainant is that having urgent need of his own accommodation he approached the OPs for one residential flat in the five storied building namely “Kamala Apartment”. The OP-1 is the landowner and the other OPs are the developers who developed the land for erection of multi-storied building therein as per sanctioned building plan issued by South Dum Dum Municipality. The OPs have agreed to sell out the flat no-B-3, on the 3rd Floor of the said apartment having super built up area of 800 square feet more or less at a consideration amount of Rs.2,00,000/- i.e. Rs.250/- per square feet. The Complainant being satisfied with the approach, attitude, intention and representation of the OPs had agreed to purchase the concerned flat at the said consideration money. Accordingly the OPs have entered into an agreement for sale with the Complainant on 02.02.1990 on certain terms and conditions. In terms of the agreement the Complainant paid the entire consideration money on different dates and different mode of payment. Upon receipt of the entire consideration money for Rs.1,90,000/- the OPs have issued money receipts in favour of the Complainant. In addition to the said consideration money of Rs.1,90,000/- the OPs also received Rs.10,000/- as booking money and further amount of Rs.20,000/- from the Complainant on account of lift and generator charges. An amount of Rs.6,669/- was also paid by the Complainant on 07.11.1990 and the OPs have received the said amount by issuing money receipts in favour of the Complainant. As per the terms of the agreement for sale the OPs were liable to deliver the physical possession of the concerned flat within 04.06.1990 subject to payment of entire amount as per the agreement for sale, but after expiry of the schedule date the OPs have failed and neglected to the deliver the possession in the said flat on 10.08.1990. After repeated reminders and requests the OPs delivered the possession of the schedule flat in favour of the Complainant having so many unfinished works i.e. installation of lift, installation of generator etc. The Complainant had to take possession of the said flat in such condition because the Complainant being a doctor and employee under the Government of West Bengal invested huge amount of money. The OPs have assured that they will complete the building by this time in all respect and the OPs have successfully convinced the Complainant that they were bound to complete the building as per the sanctioned building plan for getting completion certificate from the local Municipality. Getting such assurance from the OPs the Complainant took possession of the flat. Upon getting possession of the flat the Complainant requested the OPs to provide him the completion certificate from the local Municipality and to execute and register the sale deed in his favour on several occasions. The Complainant being an employee of Government of West Bengal, whose job is transferable, finding the same the OPs have started to demand more and more money on different account without any basis. It is necessary to mention that as per agreement initially the maintenance of the building was done by the builder and on every month maintenance bill were issued according to the size of the flat. On 20.08.1992 i.e. after two years from the date of getting possession the OPs by issuing a letter to the Complainant have mentioned that the size of his flat is 875.70 square feet, not 800 square feet. Accordingly the OPs have claimed more maintenance charge depending on the enhancement of the flat size. Then and there the Complainant raised objection in writing and the OPs have refused to accept maintenance bill from the Complainant. Thereafter as it was paid to the previous flat size i.e. 800 square feet the OPs started to compel him to pay Rs.17,722/-towards extra amount for construction of the lift. Such arbitrary and whimsical demand was made by the OPs in writing and the same was duly replied by the Complainant. In a very cunning manner the OPs intimated the Complainant that the flat might be registered upon making payment as per the demand of the OPs by the Complainant. Till filing of this complaint the OPs have neither obtained the completion certificate in respect of the building from South Dum Dum Municipality nor handed over the copy of the same to the Complainant. In this respect the Complainant requested the OPs on several occasions and also issued reminders for doing needful for registration of the flat upon observing the statutory obligation, but the OPs did not take any fruitful steps in this regard. As the OPs did not bother to redress the grievance of the Complainant, having no other alternative the Complainant has approached before the Ld. Commission, Barasat by filing this complaint praying for direction upon the OPs to execute and register the sale deed in respect of the flat along with undivided proportionate share of land in his favour, to pay enhanced registration cost, to hand over the completion certificate in respect of the building, to pay Rs.5,00,000/- towards compensation on account of mental agony, pain, anxiety, harassment and litigation cost to him.
The petition of complaint have been contested by the OPs by filing conjoint written version stating that the Complainant had failed to take physical possession of the flat though the OPs were agreed to deliver the same in favour of the complainant on 10.08.1990. Though the Complainant has alleged that in spite of several requests the OPs did not provide him the completion certificate from the local Municipality and/or to execute and register the sale deed in his favour, it is a concocted and motivated story of the Complainant and the OPs never demanded more and more money from him, not only that the OPs did not claim any extra or excess amount for construction of the lift and/or maintenance charges amounting to Rs.17,722/-. The OPs have already taken all possible steps for obtaining the completion certificate and/or execution and registration of the sale deed but the Complainant did not show his interest to register the sale deed in respect of the flat in his favour till date. According to the OPs as there is no deficiency in service as well as unfair trade practice on their behalf the complaint is liable to be dismissed with exemplary cost.
At the very outset it is pertinent to mention that this complaint was initially filed before the Ld. Commission, Barasat and after establishment of this Ld. Commission the record has been transferred to this Ld. Commission from Barasat Commission in view of the order passed by the Hon’ble SCDRC. It is seen by us that after adducing evidence by the Complainant this record is transferred. Upon receipt of this record at this Commission notices were issued upon the parties for their appearance. Accordingly the Complainant appeared on 14.02.2020, none was appeared on behalf of the OPs. Thereafter, Lockdown was declared by the Government of India as well as Government of West Bengal due to severe spur of Covid–19 this record could not be placed on the date fixed. Accordingly on 04.02.2021 both parties were present through their respective Ld. Advocates and date was given to the OPs for filing questionnaire on 22.04.2021 but the OPs since then did not turn up and no questionnaire is forthcoming from the OPs and this Ld. Commission was pleased to pass an order on 07.12.2021 that the scope for filing questionnaire by the OPs stands closed. Therefore, the evidence of the complainant remains unchallenged. In the interest of justice scope was given to the OPs for adducing evidence, but the OPs have neither turn up nor adduced evidence in spite of getting ample scope. In accordance with law this Ld. Commission has been pleased to pass an order on 16.02.2022 that the scope for adducing evidence by the OPs stands closed and date was given for hearing argument and filing BNA on 04.03.2022. On 04.03.2022 the Ld. Advocate for the Complainant has advanced his argument and on that date also none was present on behalf of the OPs.
We have carefully perused the record along with documents as available and heard argument at length advanced by the Ld. Counsel for the complainant. It is seen by us that the crux of this complaint revolves within a very short compass. It is found by us that having urgent need of his own accommodation the Complainant approached before the OPs for a residential flat in the five storied building namely Kamala Apartment. Upon going through the flat related documents the Complainant agreed to purchase one flat being no-B-3 on the third floor on the said apartment having super built up area of 800 square feet more or less at a consideration of Rs.2,00,000/-. Accordingly an agreement for sale was executed by and between the Complainant and OPs on 02.02.1990 on certain terms and conditions. The Complainant paid a sum of Rs.1,90,000/- on different dates and the OPs have issued money receipts in favour of the Complainant. Be it mentioned that the OPs have also received booking money of Rs.10,000/- and Rs.20,000/- on account of lift and generator charges. Upon receipt of the said amount the OPs have issued money receipts in favour of the Complainant. It was settled by and between the parties that the schedule flat will be delivered to him within 04.06.1990 subject to payment of entire consideration amount. After 10.08.1990 the flat was handed over to the Complainant having so many unfinished work i.e. installation of life, installation of generator etc. But being compelled the Complainant had to take physical possession of the flat after getting verbal assurance from the OPs that they will complete entire building within a short span in all respect and provide him the completion certificate in respect of the building from the competent authority. The allegation of the Complainant is that inspite of getting physical possession of the flat the OPs did not bother to provide him the completion certificate from the local Municipality and execute and register the sale deed in his favour in respect of the flat. Further allegation of the Complainant is that in this respect several requests were made to the OPs on his behalf, to no effect. As the OPs did not settle the dispute of the Complainant in spite of verbal and written requests, finding no other alternative this complaint is instituted by the Complainant praying for certain reliefs.
We are of the considered view that the OPs are under the contractual obligation to execute and register the deed of conveyance in favour of the Complainant in respect of the flat and also to provide completion certificate of the building obtained from the competent authority. Though the physical possession of the flat was handed over by the OPs, until and unless registration of the sale deed is executed in respect of the flat in his favour, the Complainant cannot mutate the said property in his favour. Therefore, in our view the Complainant is very much entitled to get his flat registered in his favour and the completion certificate from the OPs without any further delay. Admittedly as the grievance of the Complainant have not been redressed by the OPs, the Complainant has filed his complaint before the Ld. Commission and for this proceedings the Complainant has to incur some expenses for which the Complainant is entitled to get litigation cost from the OPs.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no- RBT/CC/36/2020 is hereby allowed on contest with cost.
The OPs are directed to execute and register the deed of conveyance in respect of the questioned flat in favour of the Complainant within 45 days from the date of passing of the judgement failing which the Complainant will be at liberty to get the flat registered through the machinery of this Ld. Commission in accordance with Law.
The OPs are further directed either jointly or severally to pay compensation for Rs.1,00,000/- to the Complainant within 45 days from the date of passing of the judgement and litigation of cost of Rs.20,000/- to the Complainant within the said specified period, in default the Complainant will be at liberty to put the entire decree in execution in accordance with law.
Let plain copy of this order be given to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
