27/03/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Appeal is directed against the judgment and order passed by Learned District Forum, Barasat, North 24-Paraganas in case no.CC 135 of 2012 allowing the complaint with cost of Rs.10,000/- and directing that the letter dated 02/04/12 issued by OP No.2 will not be binding upon the Complainant and directing the OPs jointly and severally to deliver possession of the flat by registering the deed of conveyance in favour of the Complainant after receiving the balance amount of Rs.1 lakh and to pay compensation of Rs.50,000/- to the Complainant within one month from the date of order failing which the OPs will have to pay Rs.400/- per day till full satisfaction. 

            The case of the Complainant/Respondent, in short, is that she submitted an application for the purchase of flat and she succeeded in the lottery which was duly informed to her by the OPs vide letter dated 28/06/05.  The Complainant deposited Rs.7,34,000/- out of total consideration of Rs.8,34,000/-.  The OP sent a letter dated 30/09/07 stating that it has unilaterally cancelled the facilities as stated in Head Note “The Scheme” at page 2 of the brochure and the same was gross deficiency in service.  The OPs cannot withdraw the facilities as declared in the brochure suo motu and the price of the flat was not altered or changed and no compensation for the cancellation of facilities was offered.  The Complainant after receiving the said letter sent a reply under registered post with A/D, but the OPs failed to reply to the said letter.  The OPs failed to deliver the scheduled flat to the Complainant within December 2008 in breach of the terms of the brochure and no explanation was given by the OPs for such inordinate delay in the delivery of the flat.  The OPs did not disclose the present status of the project and did not obtain clearance certificate from Pollution Control Authority.  The OP No.2 sent a letter to the Complainant on 02/04/12 demanding the payment of sum of Rs.3,09,601/- without any reason.  The Complainant strongly opposed the conduct of the OPs and made it clear that the remaining amount was Rs.1 lakh only.  Under the circumstances, the Complainant filed the complaint before the Learned District Forum. 

            The Learned Counsel for the OP/Appellant has submitted that the total consideration was Rs.8,34,000/- and the Complainant paid Rs.7,34,000/- on different dates.  The OP issued a letter dated 02/04/12 demanding the payment of sum of Rs.3,09,601/- as the Complainant could not pay the remaining amount within the stipulated time.  It is submitted that the W.V. was filed and cancellation notice was issued.  It is contended that as per Housing Board Rules if the amount is not paid within the stipulated time penal interest has to be paid by the purchaser. 

            The Learned Counsel for the Respondent has submitted that the OPs/Appellants unilaterally have withdrawn some of the declared facilities and no reduction in consideration money and no payment of compensation was made.  It is contended that the transaction started in 2005 and the facilities were withdrawn in the year 2007.  It is contended that in the letter dated 02/04/12 there was no whisper about the delivery of possession and the remaining amount of Rs.1 lakh was paid by cheque dated 24/12/12.

            We have heard the submission made by both sides and perused the papers on record.  As per the terms and conditions of the brochure possession was to be delivered by the end of 2008 after completion of the flats including the common facilities.  The flat was allotted to the Complainant vide letter dated 28/06/05.  By letter dated 16/08/07 the OP informed the Complainant that under compelling circumstances the facilities, namely, swimming pool, auditorium etc. could not be made available to the allottees.  The Complainant wrote several letters to the OP.  The Complainant vide letter dated June 26, 2009 informed the OP that she had no objection against withdrawal of facilities or shifting of the sight, but in that case the OP will not impose any penalty against the Complainant.  No reply to the said letter appears to have been given by the OP/Appellant.  It further appears that on 24/12/12 the Complainant had sent a cheque of Rs.1 lakh vide Annexure-E to the BNA filed by the Respondent, but the OP/Appellant by letter dated 07/03/13 refused to accept the same.  The OP/Appellant on 02/04/12 had sent a letter to the Complainant demanding Rs.3,09,601/-.  It is evident that the OP/Appellant failed to deliver the flat within the stipulated time, that is, December 2008.  Such failure itself suggests deficiency in service on the part of the OP/Appellant.  Under the circumstances aforesaid, we are of the considered view that the Learned District Forum was justified in passing the impugned judgment and order.

            The Appeal is dismissed.  The impugned judgment is affirmed.