Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant Mr. Sanjib Dhara and Smt. Rita Dhara, by filing this compliant stated that they wanted to buy a flat in the project of Smt. Amita roy and M/s. Rig construction represented by Sri Sisir Das(OP1 and OP2).  They approached the OP and accordingly a sale agreement was executed on 4^th April, 2010.  Total area of the flat was 704 sq. ft. including super-built up area on the south western side being flat no.1A of the 1^st floor of the said premises at a consideration of Rs.9,60,000/- only as per the version of the complainants, they paid full consideration money to the OP.  But the OP demanded Rs.1,40,000/- extra to undertake some extra work as per choice of the complainant.  The complainant paid the amount of Rs.1,40,000/- to the OP2 with a hope that those extra work would be carried out by the OP2. 

          In spite of repeated requests made by the complainant for executing and registering the deed of conveyance, OPs did not pay heed to that point, but the OP1 handed over the possession on 11-07-2011.  It is pertinent to mention that the OP2 did not do the extra job for which the complainant paid an extra amount of Rs.1,40,000/- only.

          On 08-05-2013, through a notice the complainant again requested to register and execute the deed of conveyance and to refund the extra amount given by the complaint for some extra work in respect of the flat.

          OPs did not keep their words, they harassed the complainant by not executing the registered deed of conveyance, for which the complainant is entitled to get compensation.

          OPs took money but neglected their duties by not performing the extra work.

          The complainant prayed for refund of the extra amount of Rs.1,40,000/- excluding the consideration money of Rs.9,60,000/- and OPs be directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat and the complainant also prayed for a compensation of Rs.3,00,000/- for harassment and mental agony.

          OP1 states that in the eye of law there is no deficiency in service, so the case is not maintainable.  The complainant is not at all a consumer.

          In reply the complainant reports that the present compliant is maintainable under the provision of Consumer Protection Act, 1986 and the complainant is a consumer in respect of deficiency of service regarding housing construction.

          OPs in their written statement stated that OP1 and 2 bought a land with a factory shed.  Then both of them, out of their own resources built a G+4 building consisting of nine flats and 3 car parking space.  They sold seven flats.  The complainant is an old friend of OP1 and he requested the OP to give him a flat in easy instalments.  OP1 agreed to give him the flat on the first floor.  An agreement for sale was executed between the complainant and the OPs on 04-04-2012 on an agreed consideration of Rs.9,60,000/- without any car parking space.  On the deny of agreement, the complainant paid Rs.1,00,000/- only in cash.

          The complainant was seeking for a bank loan so that he can pay the rest of consideration amount.  In this regard he approached OP1 for agreement for sale which would expedite the sanction of bank loan.  The OP1 on goods faith gave the complainant that agreement for sale without keeping any photocopy of the same.  thereafter, the complainant informed OP1 that his banker refused to sanction bank loan to him, therefore, the complainant paid a sum of Rs.5,90,000/- out of consideration money of Rs.9,60,000/-

          The OP has issued money receipt against each instalment acknowledging the amount paid by the complainant.  the OPs neither received any money excluding Rs.5,90,000/- nor the complainant gave any amount without getting a money receipt.

          Further the OPs alleged that the complainant took possession of the flat without any knowledge and consent of the OPs in the last part of 2010. Since then the complainant is in the possession of the flat without giving any further payment towards outstanding consideration amount of Rs.4,00,000/-.  In this regard the OPs submit that it is the duty of OPs to execute and register deed of conveyance within six months from the possession, but the complainant with mala fide intention sat idle for three years with a motive deferring the balance payment to the OPs.  OPs thereby suffered financial loss unless the full payment is made, the OPs are not in a position to execute and register the deed of conveyance.

          The OPs opined that the complainant has lodged this case to the Ld. Forum for creating pressures on them so that the OPs are compelled to register the deed of conveyance without demanding the outstanding amount of Rs.4 lakhs and also for getting some extra money in the form of compensation.  The complainant sent a legal notice to the OP3 on 08-05-2013 for concluding the transaction by executing Deed of Conveyance in favour of the complainant in respect of the flat.

          The OPs submit that all the complaints made by the complainant are false, frivolous, fabricated and deliberate lie.  The statement of account made by the complainant’s lawyer does not reflect the true story of payment made by the complainant.  Further the complainiant wants to earn the cost of registration from the amount of compensation which he thinks that he is entitled to get.

          The OPs state that the complainant is not entitled to get any relief, besides he has to pay Rs.5,10,000/- with prevailing rate of interest of the banks.  Then only the deed of conveyance be executed and registered.

Decision with Reasons

On proper study of the complaint and written version and the affidavit in chief it is found that the complainant booked a flat at premises of 51, Ultadanga Main Road, Kolkata – 700 004.  The complainant entered into an agreement with OPs 1 and 2 on 4^th April, 2010 on that date the complainant paid Rs.1,60,000/- both in cash and cheque as mentioned in the memo of consideration.  The complainant cherished a hope of residing at a flat, but he was unable to pay the full consideration money at a time.  So, he approached the OPs that he would pay the amount in easy instalments.  He started to pay money from the date of booking, but the amount was not lump sum.  So, the OPs also did not feel that the deed of conveyance has to be executed.  In the month of August, 2010 the complainant took possession of the flat of Ultadanga Main Road and requested the OPs to execute the deed of conveyance.

          The OPs further state it was not possible for them to execute and register the deed of conveyance because full payment was not made.  The complainant has paid only Rs.5,90,000/- and Rs.5,10,000/- is outstanding out of consideration money Rs.11,00,000/- but as per the agreement for sale the value of the flat is Rs.9,60,000/- afterwards, the OP did some work done in the flat as per the choice of the complainant.  For this the OP demanded another Rs.1,40,000/- and more but complainant is not ready for payment for this extra amount.  He thought that for this work complainant shall have to pay extra cost.  In this regard complainant has stated that once agreement is made, he cannot demand extra amount.  But OP’s main contention is that the complainant has not paid the full amount of the flat and further amount for extra work but complainant’s plea is that Marble is used for the construction of the flat, if the colour marble is fitted according to the choice of the complainant, then no question of paying extra amount arises so OP has adopted unmerchantable trade practice and has claimed extra amount without any reason.

          Fact remains that the complainant is residing in that flat, but the OPs have not issued any possession certificate at any point of time and it clearly shows that possession was taken by the complainant by some other means.  OP’s contention  is that the complainant shall have to pay the balance amount of Rs.5,10,000/- but as per the money receipts, the complainant paid one lakh(cash), Rs.60,000/- by cheque on 04-04-2010, another payment of Rs.60,000/- on 12-04-2014.  Next payment of Rs.2,30,000/- was made on 29-04-2011 to M/s. Rig Construction and, thereafter, Rs.1,00,000/- on 29-06-2011 through cheque and on the same day, another cheque of Rs.1,60,000/- was handed over to the OP.  The last payment for Rs.40,000/- through cheque.  All the payments excepting the payments of the first day were made through cheques and cheque nos. are also mentioned in the money receipt along with the signature of the OP2.  After totalling the payments, it is found that altogether the complainant paid Rs.7,50,000/- only.  OPs in their written statement mentioned that no payment was made without money receipt.  If that be the so, wherefrom these money receipts of Rs.7,50,000/- has come.  If the OP’s version is right, then it is evident that the complainant paid Rs.7,50,000/- instead of Rs.5,90,000/- only.  OPs have made a false submission in their written statement that the complainant paid Rs.5,90,000/- only.  Thus OP has adopted unfair trade practice by not admitting the exact amount of payment made by the complainant.

          OP has been told by the complainant for several times to execute and register the deed of conveyance.  Though OPs did not show any interest in this matter but OPs contention is that unless full payment is made, the deed of conveyance cannot be executed however, the complainant has asserted that he has paid more than actual flat amount which is specifically mentioned in his demand notice but OP has not denied that fact by sending any reply.  The controversy was raised regarding the actual price of the flat.  As the actual price of the flat is Rs.9,60,000/- only, the complainant is to pay only a sum of Rs.2,10,000/- once third of the full payment was made, but meagre amount is not also outstanding so, the complainant has nothing to pay at the time of execution of registered deed of conveyance.  It is clearly mentioned at P.4 of the agreement for sale signed on 4^th April, 2011 that the remaining or balance consideration money i.e. Rs.9,60,000/- – Rs.1,60,000/- i.e. Rs.8,00,000/- only shall be paid by the purchaser, at the time of execution of the sale deed.  But the complainant already paid Rs.11,00,000/- only.  If the OPs would have taken step for the execution and registering the Deed of Conveyance, the complainant would have paid the balance amount, if any.  Not only in this case, in most of the other cases developers are found extracting more money from their customers after completion of the flats and by taking full consideration. 

          But in this case complainant had tried to convince by referring their Registered with A/D letter dated 08-05-2013 that practically complainant paid entire amount of Rs.11,00,000/- but anyhow that letter was received by the OP but OP did not deny the fact of payment of Rs.11,00,000/- or no such denial letter was also sent by the OP to the complainant.  Another factor is that complainant already prepared the final deed of conveyance in a stamp paper and that copy of final deed of conveyance dated 08-04-2010 is filed and invariably the preparation of final deed of conveyance (Sale Deed) simply justifies that invariably the OP received the entire amount and thereafter, handed over the possession and asked the complainant for preparation of sale deed and accordingly, the complainant prepared the sale deed but, thereafter, it is not executed what simply proves that the developer received the balance amount in cash.  But prior to that he received Rs.7,50,000/- by issuing proper receipt.  No doubt in respect of the balance payment of cash there is no receipt.  But the letter dated 08-05-2013 as sent by the complainant to the OP supports that complainant paid balance amount in cash on different dates OP received it and OP even after receipt of the said notice did not deny the fact and not only that complainant prepared final deed of conveyance on stamp paper on 08-04-2010 that means complainant prepared it as per direction of the OPs.  Now, contesting OP wants to say that he did not receive the balance amount.  For the sake of the argument it is accepted that the OP always granted receipt against payment then why the OP denied payment of about Rs.2 lakhs which already paid i.e. Rs.7,50,000/- but anyhow complainant searched out this receipt and submitted before this Forum as proof and it is proved that OP has received Rs.7,50,000/- issuing receipts and in this regard OP kept mum but OP has tried to convince that complainant has not paid as yet Rs.5,10,000/- but it is not proved.  Then it is clear that complainant paid entire amount thereafter possession was handed over.  Thereafter deed of sale was prepared and now the OP is trying to grab more money because in the mean time the market price of the flat has been increased at high rate and it is the intention of all the developers to deprive already purchased flat owners and selling those flats at higher market rate to the third party and in this case same theory has been adopted by the OP and now OP is playing cards by telling before this Forum that he has not received balance amount of Rs.2,10,000/-.

          However, about extra work complainant submitted very specifically that the work has not been done.  So, there is no question of payment and in this regard OP has also failed to prove that extra work was done by the OP and it was assessed by both the parties and there was any signature of the complainant in the said joint assessment so, for want of material documents and evidence we are convinced to hold there is no question of payment of Rs.1,40,000/- by the complainant to the OP for any alleged extra work.  Considering the entire material facts the conduct of the OP and his bad intention not to execute the deed of sale and not to hand over the possession letter to the complainant even after delivery of the possession of the flat we are convinced to hold that possession of the flat was given by the OP to the complainant on receipt of full consideration and accordingly, deed of sale was prepared by the complainant and that was placed but OP refused because OPs intention is now to grab more money and it is also an interesting factor that when OP received the letter dated 08-05-2013 from the complainant’s side through his Ld. Lawyer he was kept silent.  It simply proves that OP had no allegation against the assertion of the complainant about possession certificate about delivery of khas possession and his intention not to execute deed.  In the light of the above observation we are convinced to hold that though there is no receipt in respect of payment of balance, complainant is not liable to pay any further payment when on full satisfaction of payment of full consideration possession was delivered but possession letter has not been delivered and it is an ill motive of the OP anyhow to harass the complainant and to create a pressure upon the complainant to grab more money otherwise in this case it is proved that complainant has paid entire amount.  So, the negligent, deficient manner of service and adoption of unfair trade practice by the OP is well proved.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against OP with a cost of Rs.10,000/-.

          OPs are hereby directed to execute and register the sale deed in favour of the complainant in respect of the said case flat within one month from the date of this order failing which for disobeyance and non-compliance of the Forum’s order complainant may file an application praying for execution and registration of the sale deed in favour of the complainant in respect of the said flat on behalf of the OPs through this Forum and for that purpose complainant shall have to bear all costs including service charges and other to the Authorized Officer or the Forum who shall have to present for execution and registration on behalf of this Forum and all costs for the purpose of registration and execution will be paid by the complainant.

          If the deed is executed through Forum in that case OP shall have to pay a punitive damages of Rs.5,000/- per month to this Forum till final registration and execution of deed of sale.

          For mental pain and agony and also harassing the complainants in such a manner by the OPs by adopting unfair trade practice, OPs shall have to pay compensation of Rs.50,000/- to the complainant within one month from the date of this order.

          OP1 particularly and other OPs are directed to comply the order within one month from the date of this order positively failing which for non-compliance and disobedience of the Forum’s order penal interest @Rs.500/- shall be assessed against OPs and if it is collected same shall be deposited to this Forum and even after that it is found that OPs are unwilling to comply the order in that case penal proceeding may be started against OPs and OPs shall satisfy the decretal amount and other matter.

          OPs are directed to comply the order within stipulated period otherwise penal proceeding u/s.27 of the C.P. Act has been started against him and for which further penalty or fine may be imposed.