Order-30.
Date-16/01/2015.
Complainant by filing this complaint has submitted that op nos. 1 & 2 are the owner of the premises No. 1, Mahendra Sarkar Street, P.S.- Muchipara, Kolkata – 700012 and op no.3 is the promoter cum developer of the said premises. It is specifically mentioned that op no.3 introduced the complainant-s husband as her constituted attorney and he is by profession as an Advocate and both the said persons assured the complainant that the entire building shall be completed within six months from the date of agreement and both the ops and the complainant entered into an agreement for sale on 13.03.2007 and in the said agreement the complainants have agreed to pay Rs. 10 lakhs for the total area of 600 sq. ft. including 25 percent super built up area and from time to time complainant paid Rs. 6,33,000/- to the developer.
Thereafter op no.3 without complete the said building demanded more money for completion of the same on 15.04.2009 and when complainants in respect of the said incomplete flat they found some unknown persons already occupied the said incomplete and they were not allowed the complainant to enter into the said flat. So, complainants filed a case u/s 156(3) of the Cr. P.C. before the Ld. C.M.M. Court, Calcutta and the Court was pleased to pass inter alia an order to the officer-in-charge of Muchipara Police Station for treating the same as FIR and to get some investigation by some suitable officer of the said police station as nominated by the Officer-in-charge.
Op no.3 was appointed a contractor namely Mr. Fakhruddin Ahmed Gandhi and requested the complainant to pay the sum of Rs. 73,000/- only being a part payment of the consideration money as could be assessed in accordance with the measurement of actual area of 510 sq. ft. including 25 percent super built area. Complainants finding no other alternative being paid the said amount to the contractor for complete the said flat but the contractor hand over the said incomplete flat. But the complainant informed the op nos. 1 to 3 and also the contractor for complete the said flat as habitable condition but they did not pay any heed to the words of the complainants. In the circumstances complainants in respect of their money for complete the said flat in a habitable condition and all the bills are annexed with the complaint which have been submitted in this case and thereafter complainant asked the ops for registration of the said flat by receiving the balance consideration money after deducting the investment money which was paid by the complainant to get completion of the said flat.
In the meantime op no.3 filed purported suit for declaration and permanent injunction against the op nos. 1 & 2, the contractor Mr. F. Ahmed Gandhi and also the complainant and other purchaser and op no.3 has prayed in the instant suit for restraining the op nos. 1 & 2 for registration the said flat in favour of any purchaser and the court was pleased to pass an order to maintain status quo by all the parties after hearing the said petition. The Ld. Court vacated the status quo order on 14.12.2011 and again the complainant sent a letter through her Advocate on 01.02.2012 that the complainant is ready to register the said flat with the balance consideration money if any after the reduction of the expenses needed for the completion of the said letter. Ops received the letter but they did not respond.
No doubt complainant as consumer is executed a sale Agreement with op no. 3 as a constituted attorney of op nos. 1 & 2 where the consideration money was fixed and the complainant as a consumer paid partly consideration money to the op no. 3 and op nos. 1 to 3 promised to service for the payment of consideration money. But even after payment of huge complainant has not got benefit of the service of the ops.
Op no.3 as a Power of Attorney holder of op nos. 1 & 2 promised by a Sale Agreement and contract of sale of the self-contained flat and would register the said flat, but nothing has been done by the ops and it is their deficiency in all respect and so in the above circumstances, complainant has appeared before this Forum for negligence and deficient manner of service and also adopting unfair trade practice and prayed for as per agreement and also to register the deed of sale for compensation.
On the other hand op no.3 by filing written statement submitted that the entire allegation is vexatious, frivolous and not maintainable in the eye of law.
It is specifically mentioned in the written statement by the op no.3 M/s. Tuce International, a proprietor entered into an agreement for sale with the complainant for sale of a flat on 13.03.2007 measuring 600 sq. ft. including super built up area. Subject to the complainants making payment of full amount of consideration money to op and also observed and perform all other terms and condition as agreed in the said agreement the joint owners shall execute the Deed of Conveyance in respect of the said flat in favour of the complainants.
Op with her sincere effort and efficiency completed almost the entire construction within the stipulated period. However some minor work such as plastering on the top floor and erection of boundary wall on the terrace was under process and about to be completed within few days. But before completion of the said work the complainant put immense pressure upon the op to hand over the possession of their flat. The op tried to convince them and resisted from taking possession of the flat before completion of entire work by the complainant instead of bearing with the op for few days started creating trouble in construction work and with the help of local gundas took forcible possession of the flat on the 2nd floor at the premises in the month of June-2009 as a result the remaining construction work was stopped due to taking forceful possession of the said flats.
Op further submitted that the complainant took possession of the flat in the month of June-2009 after waiting for many years they have appeared before this Forum and made some false allegation about incomplete flat etc. and for which their only intention to grab more money this complaint is filed.
It is further submitted that the op has completed the entire construction in terms of Development Agreement and in accordance with the sanction plan. With reference to the rest of the allegation it is stated that the complainant himself admitted that the possession of the flats were given to the complainant in the month of June-2009 by police. So, question of any negligent and deficiency on the part of the op does not arise. It is further submitted that the op already filed the suit before Civil Court against owners/constructor. But complainant was not restrained by any of the order of the Ld. Court to get his deed registered by the op. However the contention of the complainant that since a suit is pending he cannot file the complaint within time due to pendency of the suit is baseless as the said suit is still pending before the Ld. City Civil Court Calcutta and in respect of proceedings it be proceeded to other, the present Forum has no jurisdiction to decide the same and in the above circumstances, the complaint should be dismissed.
Decision with reasons
On overall assessment of the complaint and written version and also considering the admission of op no.3 and the complainant, it is admitted fact that there was an agreement for sale which was executed on 13.03.2007 in between the complainant and the ops and that agreement to sale was executed by F. Ahmed the Developer and also by Jharna Dutta, Jayanti Dutta and Shibani Dutta the purchasers and no doubt as per agreement, total consideration amount of the said flat was fixed at Rs. 10,000/- of area of 600 sq. ft. more or less including 25 percent super built up area as agreed and the disputed self-contained flat shall have two bed room, one drawing room, one kitchen, one balcony and proportionate flat area of staircase which is fully described in the second schedule of the said agreement. From the said agreement it is also proved that from the date of agreement, Developer R. Ahmed received Rs. 3,18,000/- that fact has not been denied by the op no.3. It is also proved that as per direction of op no.3, complainant paid a sum of Rs. 50,000/- on 26.01.2009 and further received a sum of Rs. 23,000/- and another Rs. 2,000/- on the same date that means Gandhi Construction Company on behalf of the op no.3 received Rs. 75,000/- from the complainant and that is not denied by the op.
Most interesting factor is that ops have not produced any document to show that he did not receive Rs. 3,18,000/- or on his behalf of Gandhi Construction did not receive Rs. 75,000/-. So, it is clear that complainant has paid Rs. 3,93,000/- and in this regard there is no dispute.
But fact remains that complainant has stated in his complaint in para-3 that he has already paid Rs. 6,33,000/- out of Rs.10,00,000/-. But we have searched out the alleged payment of Rs. 6,33000/- no doubt Rs. 3,93,000/- has been paid by the complainant. Now we shall have to search out whether further payment has been made by the complainant to the op or not? In this regard complainant has produced the receipt which was noted on the backside of the agreement to sale wherefrom it is found that on 21.04.2007 R. Ahmed received 3 cheques of Rs. 58,000/- + Rs. 92,000/- + Rs. 20,000/- i.e. total Rs. 1,70,000/-. Further on 25.05.2007 R Ahmed received Rs. 1,40,000/- and the payment of Rs. 1,40,000/- and Rs. 1,70,000/- on 25.05.2007 and on 21.04.2007 have not been denied by the op in his written statement. So, it is clear that out of Rs,10,00,000/-, Rs. 7,07,000/- has been paid by the complainant to the ops. So, balance amount is of Rs. 2,93,000/- which is admitted by the complainant that has not been paid by the complainant as yet.
But as per agreement, it is found that Rs. 3,18,000/- would be paid on the date of execution of the Sale Deed and that has been paid. Balance Rs.2,00,000/- as first installment shall be paid in the month of April-2007. The third installment would be paid in the month of May-2007 for a sum of Rs. 2,00,000/- and fourth installment would be paid in the month of June-2007 and the balance amount of consideration money of all other purposes shall be paid on or before the execution of the sale deed for execution and registration of delivery of possession of the said flat.
But as per agreement, we have found that total Rs. 2,00,000/- as 2nd installment in the month of April is not paid but Rs. 1,70,000/- was paid. Similarly in the month of May-2007 Rs. 2,00,000/- was not paid but in place of that Rs. 1,40,000/- was paid and other amount has been paid very scatteredly but till now as per agreement, complainant did not pay Rs. 9,18,000/- by June-2007. On the contrary it is admitted fact that complainant has failed to pay Rs. 2,93,000/- as yet to the ops. So apparently there was some laches on the part of the complainant which cannot be denied by the complainant when complainant has admitted that he is willing to pay Rs. 2,93,000/- but the said amount ought to have been paid within the year of 2007. But it is now 2014.
Fact remains that as per agreement (Page-8, Para-5) the Developer shall have to deliver the flat in dispute within 6 months from the date of execution of agreement to sale. No doubt agreement to sale was executed on 13.03.2007 and as per agreement the flat should have been delivered on 13.09.2007. But fact remains by 13.09.2007 they did not deliver that flat to the complainant. So, in this regard ops are at fault and they failed to perform their part. But question is whether within that period, the flat became ready or not. In this regard after considering the material, we have been found at that time the flat was not completed fully. But there was some outer works incomplete which has been admitted by the op.
Even in the written version ops have stated that during the continuation of the present complaint, some work that is boundary wall and other outer plaster had not been completed. But fact remains that has not been completed as yet. Similarly complainant also did not pay the entire amount as per agreement by June-2007. So, there was fault on the part of the complainant to perform his/her part performance. So, joint laches on the part of the complainant and ops are found. Truth is that complainant by adopting some criminal procedure has taken possession of the flat by Judicial Magistrate-s order. So, it is the liability of the complainant because he did not get the possession of the flat by filing any complaint before any Forum for completing the same as per order of this Forum. So, complainant cannot claim any sort of damage in this regard from the op.
Further we have gathered from the ops- written version that op is willing to execute the Sale Deed in favour of the complainant if complainant pays the entire balance amount with interest etc. and it is specifically mentioned that complainant took possession of the flat in the month of June-2009 through the order of the Criminal Court and it is also admitted that complainant is not restrained by any order to get any registered Deed nor by the op and fact remains the originally op no.3 already died and her legal heirs Sk. Kamaluddin (husband), Sohel Ahmed (son) and Bilkis Ahmed (daufghter) are made parties and fact remains that they have appeared and submitted written statement and proceed with the case and in the above circumstances, we are convinced to hold that when complainant got the possession through Criminal Court then invariably it was incomplete condition. But the claim of the complainant that he has made it habitable cannot be accepted at this stage because the possession was not delivered by the op after getting completion certificate. No completion certificate has yet been received by the ops.
So, we cannot accuse the ops in this regard. But invariably ops are willing to execute the Sale Deed or Deed of Conveyance. So, invariably complainant is entitled to get an order of executing and register Sale Deed by the ops in respect of the said flat when complainant is in possession which is now habitable position as per complainant-s own version. But fact remains that since June-2007, complainant has not paid that amount and in the meantime 7 years already passed. So, the said amount with interest that is total sum of Rs. 4,00,000/- that means Rs. 2,93,000/- principle amount along with 7 years composite interest of Rs. 1,07,000/- that is Rs. 4,00,000/- shall be paid by the complainant as consideration. But that amount shall be paid by the complainant at first, thereafter the question of execution and registration of the Sale Deed shall arise.
Fact remains that in the meantime the price of the flat has been escalated due to market price, ops have not claimed any extra amount for which the complainant shall not have to get compensation and also on the ground complainant has enjoyed the entire money without payment that is balance amount of Rs. 2,93,000/- by enjoying its interest. So, complainant is not entitled to get any compensation. But fact remains litigation is there in between the landlord and the Developer which is pending before the Civil Court. But that will not any way affect the interest of the complainant which has been admitted by the op for which necessary order shall be given to the complainant.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op no.3 (presently substitute by legal heirs of op no.3) with cost of Rs. 5,000/- and same is allowed exparte against other ops but without any cost.
Complainant is hereby directed to deposit of Rs. 4,00,000/- to this Forum as consideration including interest as already observed and same shall be deposited within one month from the date of this order to this Forum and if it is deposited within the statutory period of one month by the complainant in that case ops shall have to execute and register the Sale Deed in favour of the complainant within one month from the date of deposit the same to the Forum by the complainant. But even then if ops are found reluctant to comply the order for executing and registering the Sale Deed in favour of the complainant in that case complainant shall have to file an execution case before this Forum for execution and registration of the Sale Deed in respect of the present disputed flat through this Forum and for that purpose complainant shall have to pay the entire cost of the registration etc. including service charge for appointment of officers for the purpose of executing and registering the Sale Deed.
But complainant shall have to comply the order at first and on compliance of the order by the complainant as per spirit of the order, ops are liable to execute and register the deed otherwise after lapse of 2 months, complainants shall have not got any benefit of execution and registration of Deed by this Forum as per order of this Forum.
If op does not complete the entire order within 2 months from the date of this order by taking such initiative by the complainant and if it is found that complainant has complied the order but ops are unwilling to comply the order of this Forum in that case, op no.3 (his legal heirs jointly) shall have to pay penal damages of Rs. 50,000/- which shall be deposited to this Forum-s account. Even if it is found that ops are reluctant to comply the order in that case penal action shall be started against the ops for non-compliance of the Forum-s order and for which further penalty and fine may be imposed against them.
Order-31.
Date-30/05/2017.
Record is put up on prayer of the Complainant/DHr. A copy of the order dated 03.05.2017 passed by the Hon’ble SCDRC, WB in First Appeal No.A/226/2015 is filed by the Complainant/DHr. The Complainant intends for depositing a sum of Rs.4,00,000/- as consideration including interest for the purpose of execution and registration of the sale deed as per order of the Hon‘ble State Commission, WB for compliance on her part.
Seen the copy of the order dated 03.05.2017 as aforesaid. Heard. Considered.
Prayer of the Complainant/DHr. is allowed. One Cheque bearing no.283928 dated 29.05.2017 drawn on SBI, Muchipara Branch, Kolkata issued in favour of “Consumer Legal Aid Account Unit-II” of Rs.4,00,000/- (Rupees Four Lakh) Only is deposited by the Complainant/DHr. in compliance of the order of the Hon’ble State Commission, WB. Office to issue receipt accordingly. Let the cheque be deposited to the concerned bank account of this Forum. Note in the relevant register accordingly.
