DATE OF FILING : 20.11.2013.
DATE OF S/R : 12.12.2013.
DATE OF FINAL ORDER : 08.09.2015.
1. Malabika Roy,
wife of Pradip Kumar Roy,
2. Pradip Kumar Roy,
son of late Monohar Ch. Roy,
both are residing at ‘Niharika’
flat no. A/3, 3rd floor, at 4/5, Padma Pukur Lane, P.S. Shibpur,
H.M.C. Ward No. 41, Howrah,
PIN 711109. ………………………………………………… COMPLAINANTS.
1. Smt. Chhabi Kar Chowdhury,
Wife of Ashis Kar Chowdhury,
of ‘Aikatan’ Flat no. C 2,
P 1/3, Sankar Boase Road, Chetla,
Kolkata 700027.
2. Sri Ashoke Kumar Kar Chowdhury,
3. Sri Alok Kumar Kar Chowdhury,
4. Sri Anup Kumar Kar Chowdhury,
all sons of late Bhakta Ranjan Kar Chowdhury
and residing at Block C, Flat no. 5,
Government Housing Estate R 5,
197, Andul Road, P.S. Shibpur,
Howrah 711109.
and also at ‘Aikatan’, Flat no. C 2,
P1/3, Sankar Bose Road, Chetla,
Kolkata 700027. …………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioners praying for a direction upon the o.p. nos. 1 to 4 to execute and register the deed of conveyance in favour of the petitioners in respect of the schedule mentioned flat and to deliver possession of car parking space with lift facility and compensation of Rs. 4 lakhs for mental agony and harassment and to provide completion certificate in favour of the petitioners.
- The case of the petitioners is that they made two agreements with the promoters as well as owners for purchase of 850 sq. ft. at a consideration of Rs. 700/- per sq. ft. along with one garage space measuring 125 sq. ft. and mentioned in schedule ‘A’ and schedule ‘B’ of the case and total consideration was Rs. 5,95,000/- for the flat and Rs. 65,000/- for the garage and thus the total consideration was Rs. 6,60,000/-. The o.p. no. 1 being the constituted attorney of the other o.ps. already received Rs. 6 lakhs by issuing money receipts and agreed to hand over the flat and garage within 10 months from the date of execution of the agreements i.e., 18.6.1999 but 16.4.2002 the o.p. no. 1 delivered possession of the flat only in unfinished condition. The o.p. no. 1 did not provide lift facility and also did not handover the completion certificate though the petitioners reminded him sending letters on 17.01.2005 and 10.11.2005. The petitioners have discharged their liability in the contract but the o.ps. neglected and lastly on 20.8.2013 the petitioners sent legal notice asking the o.ps. to register the conveyance deed but they did not and hence compelling the petitioner to file this case.
- The o.p. nos. 1 to 4 contested the case by filing a written version wherein they denied the allegation made against them and submitted that the case is not maintainable and it is also barred by various laws. The consideration money though fixed Rs. 6,60,000/- yet there was extra work done on 16.4.2002 for which the petitioner is to pay Rs. 2,20,800/- and also the o.ps. claimed interest on the unpaid consideration money. Regarding delivery of possession and execution and registration of the flat the o.p. submitted that the same could not be done as for the extra work the petitioner did not pay any amount and also after completion of the flat the exact area of the flat became 876.33 sq. ft. but on demand of the petitioners they handed over the total bill to the petitioners who denied to pay the same. The o.ps. are entitled to get Rs. 5,21,271/- from the petitioners for the extra work and for the extra space of the flat. Regarding lift the matter has been settled by providing extra bath room to the petitioners. This is a false case by the petitioner and the same is liable to be dismissed.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of their case the petitioners filed affidavit in chief and also documents like the deed of agreement for sale dated 18.6.1999 among the owners in one hand and the builder on the other hand and in the 3rd part the present petitioners. The o.p. no. 1 Chabi Kar Chowdhury developed the property as promoter in the land of the other o.ps. including her wherein she was given power of attorney. It is clear from the payment receipts that the petitioners paid a sum of Rs. 6 lakhs. They booked the flat measuring about 850 sq. ft. @ Rs. 700/- per sq. ft. and the total consideration of the flat amounted to Rs. 5,95,000/- and they also booked garage measuring 127 sq. ft. and the consideration for the same was fixed Rs. 65,000/- and thus in total the petitioner was to pay Rs. 6,60,000/- for the flat as well as the garage. The petitioners are now in possession of the flat and they prayed for a direction upon the o.ps. no. 1 to 4 to execute and register the deed of conveyance in favour of the petitioners and also delivered car parking space / garage to the petitioner. The petitioners also prayed before this Forum that the lift facility was not made available to them and a direction on the o.ps. to make lift facility available to the petitioners as well as the completion certificate and compensation for a sum of Rs. 4 lakhs. The o.ps. in their affidavit submitted that after the completion of the flat the area of the flat exceeded and the are of the flat measures 876.33 sq. ft. and for the extra 26.33 sq. ft. The petitioners verbally agreed to pay the extra amount and also the promoter on verbal requests to the petitioners placed marble on the floor of the flat in place of mosique and for the extra work he placed the bill before the petitioners amounting to Rs. 5,21,271/- but the petitioners failed and neglected to pay the dues within the time frame. They are always ready and willing to perform their part of obligation as per contract but the petitioners as per the agreement for sale failed and neglected to pay the bill and for the garage they only paid Rs. 10,000/- and so now their claim for garage does not arise at all. Besides, the affidavit the o.ps. failed one measurement sheet cum bill for marble and tiles work before this Forum. But there is no written document that the petitioners requested them to place marble on the floor in place of mosique or the petitioners agreed to pay for the 26.33 sq. ft. extra construction.
- This Forum heard the ld. counsel for the petitioners as well as the o.ps. and keeping in mind the averments in the petition as well as in the written objection and also on scrutiny of the documents find that there was agreement between the parties for sale of the suit flat to the petitioners along with garage for a sum of Rs. 6,60,000/- and out of the petitioners have already paid Rs. 6 lakhs. It is noticed from the deed of agreement page 11 that the builder would be bound to deliver the possession of the flat to the purchaser when full payment made and here there is an arrear of Rs. 60,000/- to be paid by the petitioners to the builder i.e., o.p. no. 1. There is also one clause in the agreement that for any extra work the petitioner would be liable to pay the increased cost. Here the petitioner failed to produce any such documents asking him for extra work and thus now he cannot claim any amount for any extra work. As regards possession it is noticed from the cases of the parties that the petitioners are in possession of the schedule mentioned flat though it is mentioned in para 17 that upon completion and making the flat tenable and habitable the builder shall give notice to the purchaser and within 15 days from the date of such notice the delivery of possession would take place. Thus in the instant case it is noticed that in the constructed building named ‘Niharika’ the petitioners booked flat A/3 on the 3rd floor of the building wherein they are in possession and they prayed before the Forum directing the o.ps. for executing and registration of the conveyance deed. This Forum also on careful consideration of the claim of the petitioners as well as the objection raised by the o.p. builders find that the builder though delivered the flat as per agreement but failed and neglected to execute and register the sale deed as per agreement and the petitioners also not paid Rs. 60,000/- as per agreement and thus this Forum under the C.P. Act, 1986 would be justified in giving a direction to the o.ps. in executing and registering the deed of conveyance in favour of the petitioners receiving the dues of Rs. 60,000/- from the petitioner. It is well within the knowledge of this Forum that this Forum has no jurisdiction to go beyond the terms of the contract between the parties and in the instant case the contract very clearly shows that the petitioners were to pay Rs. 6,60,000/- to the o.ps. for the flat as well as the garage space and they had already paid Rs. 6 lakhs within 06.3.2002 but after lapse of almost a decade the petitioner did not execute and register the deed of conveyance on the plea that no payment has been made for the extra work as well as for the extra area of the flat when there is no document filed by the o.ps. that the petitioners agreed in writing to pay them the cost of the extra are of the flat and also the cost of any extra work to be done like the replacement of the marble in place of mosique on the floor. In the instant case the tussle between the parties continued for 15 years and now this Forum is satisfied with the submission of the petitioners that they are entitled to get the reliefs as prayed for as successfully substantiated their case.
In the result, the claim case succeeds. All the issues are decided in favour of the petitioners. Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 396 of 2013 ( HDF 396 of 2013 ) be and the same is allowed on contest with costs against the O.Ps.
The petitioners are entitled to the relief as prayed for and the o.ps. are directed to execute and register the deed of conveyance within 30 days from the date of this order and no compensation is awarded for causing mental pain and prolonged harassment to the complainants as the petitioner did not make full payment after completion of the building even though residing there for over 12 years.
The complainants are entitled to a litigation cost of Rs. 5,000/- from the o.ps. who would pay the same within 30 days from this date and the o.ps. failing to comply the final order the complainants are at liberty to put the order into execution after expiry of the appeal period.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
