Order-22.
Date-16/10/2015.
In this complaint Complainants Bimal Barui and Smt. Mohua Barui by filing this complaint has submitted that op nos.1 and 2 are the owner of the land and building lying and situated at premises no. 51, Ultadanga Road, Kolkata – 700004 and the said owners mutated their names jointly as recorded owners of the said building and op no.2 one of the owner entrusted the op no.1 to construct the building over the said land after demolishing the old structure and for the said purpose op no.2 executed a Power of Attorney in favour of op no.1 and for the virtue of the said agreement op no.1 undertook the construction of the building on the said land.
Complainants with an intention to purchase a flat at the said premises approached the op no.1 and op no.1 agreed to sell the flat measuring about 875 sq. ft. Super built up area on the northern side on the 4th floor being flat No. 4B at the said premises i.e. 51, Ultandanga Road, Kolkata – 700004 at a consideration of Rs. 8,75,000/- for the said flat and Rs. 75,000/- for the garage space i.e. total Rs. 9,50,000/-.
Ops as per agreement was supposed to hand over the said flat and the car parking space within one year from the date of agreement and the Agreement for Sale was executed on 28.11.2007 and the ops was required to hand over the possession by 27.11.2008, but gave possession of the unfinished flat after a lapse of about six months of the scheduled date.
Ops handed over the said flat without completing the same in all respect and with an assurance that op no.1 would refund the cost of the unfinished job of the flat which was latter done by the complainant at his own cost, within a short period but he did not do so.Complainant paid the consideration amount to the op in full and complainants paid extra amount as per demand of the op, detail of the payment made by the complainant is as follows – Rs.1,00,000/- dt. 02.11.2007, Rs. 1,62,000/- dt. 16.12.2007, Rs. 50,000/- dt. 31.12.2007, Rs.25,000/- dt. 20.07.2008, Rs.10,000/- dt. 25.08.2008, Rs.47,500/- dt. 29.08.2008, Rs.1,00,000/- dt. 23.09.2008, Rs.6,00,000/- dt. 23.09.2008 and Rs. 30,000/- dt. 06.03.2009 i.e. in total Rs. 11,24,500/-.
Op no.1 constructing the building and gave possession to some of the flat owners and also handed over the possession of the said flat to the complainants.But after taking possession of the said flat complainant found that lot of jobs remained unfinished and complainants received possession of the incomplete flat with an assurance from the op no.1 to refund cost of the unfinished job to the complainant and the same was completed latter by the complainant at his own cost, but op no.1 did not pay any heed to such assurance.
Fact remains that op in terms of the agreement was supposed to hand over the garage location from A to C but he did not provide the additional garage space of location C and instead thereof latter sold the additional space to the 3rd party after construction of illegal room.Complainant already gave the details of the job which remains unfinished at the time of the handed over the flat and as per the estimate given by the surveyor the value of the unfinished job is amounting to Rs. 3,09,308.75 paisa.But ops did not execute and register the deed of conveyance in respect of garage space C which caused suffering to the complainants.
But op no.1 inspite of repeated request and reminders did not hand over the building completion certificate to the complainants which as per law he is duty bound to provide the same to the complainants.So, complainants finding no other alternative issued notice through Ld. Advocate asking the op no.1 to refund cost unfinished job of the flat amounting to Rs. 3,09,308.75 paisa which was completed latter by the complainant at his own cost and to hand over the building completion certificate to the complainants and also to execute and register the Deed of Conveyance in favour of the complainants in respect of the entire garage space C as per plan with possession of the additional garage space, but op did not response to the said letter dated 08.09.2014.
In the above circumstances for negligent and deficient manner of service and for adopting unfair trade practice, complainant has filed this case praying for redressal of this case.
On the other hand ops by filing written statement submitted that agreement was signed on 28.01.2007 and the instant case has been filed in the year 2015.Complainant ought to have been filed this case within two years from the date of delivery/possession of the flat in the year 2008.So, the present complaint is barred by limitation.Moreover a Suit is pending before the 2nd Civil Judge (Junior Division) at Sealdah being T.S. No. 262/2013 as per the letter and complainant got injunction order and ops are directed not to construct anything beyond the sanctioned plan on the suit property and ops are directed to show cause within 10 days from the date of notice as to why injunction shall not be passed vide Order No.1 dated 03.07.2013.
Complainant has filed this case before the Ld. 2nd Civil Judge (Jr. Div.) being T.S. No. 262/2013.But complainant has suppressed the fact before this Forum unless and until the Civil Suit is disposed of and further complaint before this Forum is not tenable.At the same time op no.1 has also filed Writ Petition before the Hon’ble High Court in the Court of the Hon’ble Justice Patheriya being W.P. No. 28192 (W) of 2014 (Sisir Das – Vs – State of West Bengal and Others) alleging non-action and inaction of the authority in administration.
When the Civil Suit before the Civil Judge and the Writ Petition before the High Court as aforesaid are pending the Ld. Forum cannot adjudicate, entertain and the Forum has no power, authority and jurisdiction to try this case.So, in the above circumstances, the present complaint should be dismissed in view of the above facts.But at this stage op does not want to express further advance on the ground that till this Civil case and created proceedings are not disposed of and it would take time and the matter shall be otherwise decided.So, the complaint should be dismissed.
Decision with reasons
On proper consideration of complaint and written version and also considering the agreement to sale dated 28.11.2007 between the parties, it is clear that op entered into agreement to sale Northern side Flat ‘B’ of the 4th Floor of the case building out of the AC Rule Property of the Agreement and also one garage and in fact op has not denied about the execution of the agreement by and between the both parties of this case.About payment of total consideration amount of Rs. 9,50,000/-, there is no denial and it is found from the Agreement that total value of the flat at Rs. 8,75,000/- and value of the garage is Rs. 75,000/- only and accordingly total amount is Rs. 9,50,000/-.
Peculiar factor is that in the present written version op has denied many things, Civil Suit etc. but has not challenged the execution of the Agreement, has not challenged about the receipt of the total amount of Rs. 11,24,500/-.
On the other hand op has produced receipts of Rs. 50,000/- dated 21.11.2007, Rs. 2,00,000/- dated 28.11.2007, Rs. 50,000/- dated 22.02.2008, Rs. 50,000/- dated 13.07.2008, Rs. 1,00,000/- dated 02.11.2007, Rs.1,62,000/- dated 16.12.2007, Rs.50,000/- dated 31.12.2007, Rs.25,000/- dated 20.07.2008 and op has also produced another receipt in respect of payment of Rs. 30,000/- dated 06.03.2009.About payment and about receipts of the amount by the op has not been denied by the op.Then it is clear that complainant already paid that amount that is total amount of Rs.11,24,500/-.
Fact remains that complainant admitted that complainant handed over the possession of the flat in the month of May-2009 after receipt of the entire consideration amount of flat, garage and also other amount for decoration of the building.Anyhow it is proved that as per agreement, op is entitled to get Rs. 9,50,000/- for flat and garage and that has been received even after that op received no doubt excess amount of Rs.1,74,500/- from the complainant and in this regard there is no explanation of the op for what reason he received excess amount.That means the excess amount of Rs. 1,74,500/- was taken by the op for decorating the said flat.But in fact the said flat was not decorated and no doubt complainant completed the decoration. So, invariably op is liable to pay back that Rs. 1,74,500/-.
Fact remains that op has failed to prove by any cogent document for what reason he charged excess amount of Rs. 1,74,500/-. Anyhow complainant has tried to convince that he completed the flat from his own fund and for which he spent a sum of Rs. 3,09,308.75 paisa. But question is before such repairing work why complainant did not send any letter to the op informing that fact or about purchase, about appointment of labourers, soil test, etc. no receipt has been filed by the complainant for which we cannot rely upon such allegation of the complainant that he got incomplete flat.
If really complainant received incomplete flat, then why at the time of taking possession, no possession certificate was taken from the complainant with such note. Peculiar factor is that no possession certificate is produced by the complainant to show that possession was delivered by the op in unfinished condition. In the above reasons we cannot entertain such an allegation of the complainant against the op. But we are confirmed that op has already received an excess amount of Rs. 1,74,500/- from the complainant and invariably op is liable to refund the said amount to the complainant immediately because it is excess amount that was received and in respect of that no work was done.
Anyhow from the report of the complainant’s LVS, it is found that it is subsequent event after completion of the flat. But it is the observation of LVS after observing a complete flat. But there is no document to show that prior to that it was purchased by the complainant from different shop and materials were purchased, labour was engaged and in respect of that cost no paper is produced. So, the matter cannot be entertained by this Forum when complainant has not produced the same with cogent documents and for the above reason, complainant is entitled to get back or to get refund of Rs.1,74,500/- from the op what op is liable to pay.
At the same time flat purchaser in the eye of law is entitled to get a completion certificate from the seller/developer and landowner because completion certificate is the final certificate in support of construction of the entire flat as per sanctioned plan and in absence of that, construction of any building cannot be treated as valid construction and in the present case, op has failed to handover the completion certificate as granted by the Kolkata Municipal Corporation as yet to the complainant and at the same time complainant prayed for execution and registration the deed of conveyance of car parking space. But anyhow complainant has proved such document or agreement that there was any agreement in between the parties in respect of selling one car parking space on ground area marked as C out of the construction of the ground floor and it is noted in the agreement about one garage. But it is specifically mentioned in the agreement that there is only one garage that is marked as C.
Another factor is that complainant already got possession of the said garage but no deed of sale is executed but execution of Registered Sale Deed in favour of the complainant by the op in respect of the flat is already executed on 23.09.2008.
Considering the above facts and materials including the findings, we are convinced to hold that ops intentionally only to harass the complainant did not execute and register the Deed of Conveyance in respect of the Car Parking space Mark-C on the ground floor of the said construction and even after receipt of the entire amount and even after hand over the possession in respect of the flat including that Car Parking space Mark-C as per Agreement and truth is that already in respect of the flat Deed of Sale has been executed on 23.09.2008. Then what prompted the op not to execute the Sale Deed in respect of Car Parking space Mark-C when the entire amount had already been taken by the Developer.
So, the entire conduct on the part of the ops particularly the Prop. Of M/s. Rig Construction is no doubt unfair trade practice and deficient and negligent manner in nature by that act and complainant has been no doubt harassed. So, in the above circumstances, complainant is entitled to get a decree as prayed for but in part.
In view of the above findings op no.1 is directed to refund and pay a sum of Rs. 1,74,500/- to the complainant within one month from the date of this order and to execute the register the Deed of Conveyance in respect of the Car Parking space Mark-C in favour of the complainant and same is also paid within one month from the date of this order.
For harassing the complainant of a long period and also for causing mental pain and agony, op no.1 shall have to pay compensation of Rs. 10,000/- to the complainant and further shall have to pay litigation cost of Rs. 5,000/- to the complainant within one month from the date of this order.
Accordingly this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against op no.1 with cost of Rs. 5,000/- and same is allowed exparte against op no.2 but without any cost.
Op no.1 is directed to refund a sum of Rs. 1,74,500/- to the complainant and also to pay compensation of Rs. 10,000/- to the complainant. Further ops are directed to execute and register the Deed of Conveyance of the Car Parking space Mark-C as per Agreement to Sale.
Entire order shall be complied by the ops, particularly op no.1 within one month from the date of this order, failing which for non-compliance of the Forum’s order, ops shall have to pay penal damages at the rate of Rs. 200/- per day till full satisfaction of the decretal dues.
If it is found that ops, particularly op no.1 are reluctant to execute and register the Deed of Sale in respect of Car Parking space Mark-C within that stipulated period, in that case, complainant shall have his liberty to file execution proceeding for execution of the said deed in respect of Car Parking space Mark-C at his own cost through this Forum and for which ops shall have to pay service charges etc. to this Forum and for that reason also op no.1 shall have to pay such service charges and cost of Rs. 25,000/- to this Forum as penal interest.
Ops particularly op no.1 are directed to comply the order within one month from the date of this order, failing which for non-compliance of Forum’s order, penal action shall be started against them u/s 25 read with 27 of C.P. Act 1986, for which further penalty and fine shall be imposed upon them.
