HON'BLE MR. KAMAL DE PRESIDING MEMBER 

Order No. : 08

Date : 18.09.2019

The factual matrix of the case of the complainant is as follows:

Complainant is the intending purchaser and OP is the owner and developer of the building including the Flat being F4 at the 2^nd floor measuring more or less 805.50 sq. ft. with garage in the grand floor of the building situated at Subhas Pally project, Subhas Pally, Banstala, Dag No.  1403(p) under the Khatian No. 227 and 1569 Mouza - Bhiringi under PS – Durgapur  Pin – 713213 in the District of Paschim Burdwan .

The complainant on 23.10.2009 negotiated and finalised with the Ops to purchase a residential flat being Flat No. F4 in the 2^nd Floor of the building consisting of two bed rooms, one dining room with bath and kitchen with a garage on the ground floor of the building of the said premises.

It was negotiated, that the complainant would purchase the said Flat and garage at the rate of Rs. 1100/- per sq.ft. at a total construction cost of Rs. 8,86,050/-. The complainant on the very date i.e. on 23.10.2009 had paid to the OP a sum of Rs. 1,00,000/- (one lac) as advance by cheque being No. 065365 date 23.10.2009 on Punjab National Bank to be adjusted with the consideration price of the Flat. Thereafter on 03.11.2009 the complainant again paid Rs. 40,000/- by cash and Rs. 60,000/- by cheque being No. 065367 on Punjab National Bank to the OP. On 15.09.2010 complainant again paid Rs.  2,00,000/- (two lacs) by cheque being No. 161516 on Punjab National Bank to the OP.

The parties thereafter entered into an agreement on 31.12.2010 for purchase the Flat with garage as aforesaid. It was agreed that OP would hand over complainant the schedule flat within one month of the completion of the flat including garage.

The complainant thereafter on 26.01.2011 had paid to the OP Rs. 1,00,000/- (one lac) by cheque being No. 181204 and thus OP received total sum of Rs. 5,00,000/- (five lacs) as advance to be adjusted against the total consideration money of the suit flat from the complainant. In the middle of the  month of October 2011, the complainant came to know that the construction work of the building was stopped by Durgapur Municipal Corporation for alleged illegal construction of the 4^th Floor.

The complainant thereafter visited the place and found no improvement in the project. At the end of March2012 the complainant again visited the site and found no improvement on the project. The complainant requested the OP to complete the project as early as possible.  In January 2016, OP informed the complainant that Durgapur Municipal Corporation had given its consent to the project on demolition of the illegally raised 4^th Floor of the building and the OP required another six months to complete the project. In the month of February 2017, the complainant again visited the project and found the project was not completed and transformer and lift were not installed. The complainant thereafter asked for necessary papers for obtaining loan from the Bank  but to no good and in June 2017 the complainant  received  a Lawyer’s letter  from the OP informing  him that the questioned of flat  was ready for possession  and requested the complainant to pay the balance purchase money to get  the sale deed  executed  and to take  the delivery of the possession of the suit Flat.

The complainant on 15.06.2017through his Advocate gave a reply  to the OP requesting  the OP to inform him regarding the carpet area,  built up area  and super Built up area of the suit flat and garage for ascertaining  of the total  sale price of the flat and requested  the OP to send him the draft deed of conveyance and other necessary papers  and documents for settlement  of the transaction and to obtain finance from financial institution. But the OP did not reply and remained silent. The complainant on 23.08.2017 again served the notice upon the OP reiterating his previous request.

The complainant meanwhile had retired from service on 31.08.2017 and had vacated his government quarter and had shifted to Kolkata. The complainant alleged that he was ready for purchase of suit flat but quite surprisingly on 15.12.2017 the complainant received a legal notice dated 24.10.2017 from the Advocate of the OP expressing her intention not to sale the schedule flat and requested him to take refund of the advance money. It is alleged that the OP has created  unreasonable roadblocks in performing his part of the agreement and has caused immense mental agony to the complainant. it is the case of the complainant that the OP has been wrongfully and illegally trying to deprive the complainant from acquiring his residential flat as described earlier.

The complainant prays that the OP be directed to deliver the schedule flat and garage to the Complainant by taking the balance consideration. The complainant has alleged deficiency of service on the part of the OP and has prayed for decree and other reliefs in terms of prayer portion in the petition of complaint.

OP has contested the case and filed written version contending inter-alia that the averments made in Paragraph 1, 2, 3, 4, 5, 7, 11 are all matters of record. It is denied that the OPs did not co-operate   to the complainant for getting home loan. It is however, stated that the construction of the building was stopped due to some unavoidable circumstances for the time being. It is also stated by the Ops that the OPs did not intend to sell of the Flat and garage @ Rs. 1100 sq. ft. through the construction cost is above 1,000/- (one thousand only) per Sq.ft.  It is also stated that the Op has no liability towards the claim until the balance amount is being paid.

It is also stated that the OP intended to sale the schedule flat to the complainant after receiving the balance amount including government charges as soon as possible. It is stated that the complainant till date is unable to arrange the balance amount to pay the OP. The complainant is trying to kill the time at the cost of the OP.

The allegation made in Paragraph 17, 18 19 are also denied. It is stated that the complainant has no basis to claim compensation of such a huge amount as the value of the schedule Flat is around 9,00,000/- (Nine lakh only). It is also stated that there is no consumer dispute between the parties since, the OP agrees to sell the flat to the complainant after getting the balance amount and necessary government charges. The OP has prayed for dismissal of the case.

                                                ISSUES

1. Is the case maintainable in its present form and prayer?
2. Whether OP is guilty of deficiency of services?
3. Whether the complainant is entitled to get the decree as prayed for along with other reliefs?

 Issue No. 1 :

Ld. Lawyers appearing before this Commission have not advanced any argument on the point of maintainability of the case.

Ld. Lawyers appearing from the side of the complainant and OP has not advanced any argument on the point of maintainability of the case. The instant issue has not been pressed by either of the side in course of agreement before us. We find that the complainants are intending purchasers of the flat in question and as such the complainants are consumers. OP is developer. OP as such is service provider. The case is clearly falls within the ambit of Consumer Protection Act, 1986 as amended.

At one place in written version it is alleged by the OP that the value of the flat along with garage is Rs. 8,86,050/- and the complainant was required to file the case at the District Forum.

It appears that the value of the flat and garage as per agreement is Rs. 8,86,050/- @ Rs. 1,100/- per sq. ft. We also find that the complainant has prayed for compensation of Rs. 15 Lakh. The case was admitted by Hon’ble WBSCDRC, Kolkata and no Appeal or Revision was preferred as against the impugned order being No. 1 dated 17.01.2018 passed by the Hon’ble WBSCDRC, Kolkata, West Bengal. The said order as such stands.

This Commission as such has also pecuniary jurisdiction to entertain the case.

The issue as such is decided in favour of the complainants.

This issue is thus decided in favour of the complainant.

 Issue Nos. 2 and 3

These issues are taken conjunctively for the sake of brevity and convenience of the discussion.

We have perused the Xerox Copy of the agreement dated 31.12.2010 in between the parties and the Xerox Copies of payment receipts and other documents on record.

It appears that following a talk of negotiation on 31.10.2012, the complainant and OPs have entered into an agreement on 31.10.2010. and it was decided that OP would hand over to the complainant the scheduled flat  along with garage within 1 month of completion of work of flat after execution of the Sale Deed.

(2)        Complainant should pay the balance amount before execution of the sale Deed.

(3)       Complainant is entitled to obtain house building loan from any bank or any financial institution.

We also find from the payment receipts that the complainant paid an amount of Rs. 4 lakh on various dates prior to execution of the Sale Agreement dated 31.12.2010. It also appears that the complainant on 26.01.2011 paid Rs. 1 Lakh by cheque being No. 181204. It appears that OP had received total sum of Rs. 5 Lakh as against the total consideration money of the scheduled flat. It also appears that the OPs had to stop the construction work for alleged illegal construction of the 4^th floor in January 2016. OP informed the complainant subsequently that the Durgapur Municipality had given its consent to the project on demolishing of the illegality raising of the 4^th floor of the building raised by the OP. Thereafter, in the month of June 2017 OP gave notice to the complainant informing that the scheduled flat was ready for possession and requested the complainant to pay the balance purchased money to get sale execution and to get the delivery of possession of the scheduled flat.

It, however, appears that OP, thereafter, 13.12.2017 through her Ld. Advocate served a legal notice dated 24.12.2017 upon the complainant expressing her intention not to hand over the scheduled flat to the complainant and requested the complainant to take refund of the advanced money.

We find that the complainant waited since 2009 till the date for getting possession of the flat and garage in question. But the OP quite surprisingly served legal notice dated 24.10.2017 expressing her intention not to hand over the scheduled flat and requesting to take refund of the advanced money.

It also appears that OP did not provide necessary documents to enable the complainant to avail Bank loan.

We find that the complainant was ready and willing to purchase the scheduled flat and informed the OP vide legal letter dated 15.06.2017 to inform him regarding the parking area, super built up area, building area of the scheduled flat for ascertainment of the total sale price of the scheduled flat and also requested the OP to send him the draft agreement and other necessary documents for settlement of the transaction.

We think that inaction on the part of the OP amounts to deficiency-in-service. It is true that no time limit or date for handover of possession is mentioned in the agreement. It is just stated in the agreement that OP would hand over the complainant the scheduled flat and garage within one month of completion of the work of flat after execution of sale deed. But the fact remains that the complainant has been waiting since 2009.

It, however, has been stated in the written version filed by the OP that the OP is ready and willing to hand over the possession of the flat on execution of the Sale Deed and on receiving the balance amount payable to the OP along with charges of GST and electricity charges and security deposit for electric charges etc. Considering the facts and circumstances and in view of the written version on the part of the OP that it is crystal clear that the OP intends to sell the flat in dispute to the complainant after receiving the balance payment and OP is also ready to execute Deed of Conveyance. It is, however, argued from the side of the OP that the question of compensation does not arise as there is no time limit in the agreement dated 31.12.2010 in between the parties for completion of the flat or handing over the possession of the flat. It is stipulated that OP will be under obligation to hand over the completed scheduled flat within 1 month from the completion of the flat and also shall liable to execute of the Deed of Conveyance.

It appears from the legal notice dated 24.11.2017 and 26.05.2017 that the complainant has informed the OP to let him know regarding parking area with the super built up area of the said agreed flat for ascertainment of the flat as early as possible and also send to him the proposed draft of Deed of Conveyance. But OP slept over the matter and on 24.10.2017 threatened the complainant that OP would be at liberty to sell the aforesaid flat and refund the advanced amount of Rs. 5 Lakh to the complainant.  

This gesture on the part of the OP is not healthy. It is apparent and quite obvious that the intention on the part of the OP is to deprive the complainant of his legitimate claim.

We think that OP is liable to meet up the contractual obligations.

We also find that OP is guilty of deficiency-in-service.

It also appears that the delay of more than 6 years in completing the construction of the building was due to the illegal act of the OP as confirmed by the OP in para 3 of her written statement. Because the building has been constructed without any approval of construction of 4^th floor, as a matter of fact building was approved for G+3 as per approved plan. So, the value of the flat along with garage can not be determined according to prevailing market price. OP can not claim any amount other than the sale at Rs. 100 per sq. ft. and total value of flat and garage measuring about 805.50 sq. ft. as per Sale Agreement.

We are also constrained to hold that OP has harassed the complainant causing him mental pain and agony for no fault of the complainant and complainant is entitled to get compensation as such.

Hence,

                                                    ORDER

That the instant case be and the same is allowed on contest against the OP.

OP is directed to hand over delivery of possession of the subject flat and garage as per the Agreement dated 31.12.2010  to the complainant and also to execute and register Deed of Conveyance before the Registering Authority within 60 days from the date of this order receiving the balance principal amount from the complainant at the agreed rate without any interest and the complainant is to pay the balance principal consideration amount to the OP meanwhile along with G.S.T. (if any) and Security deposit of electricity charges, service charges. If the area exceeds 805.50 sq. ft. OP shall be liable to sell the same at the agreed rate of Rs. 1100/- per sq. ft. Complainant is also to bear the Registration Cost.

If the OP fails to hand over delivery of possession and execute the Sale Deed by registering it within stipulated period, in that case the complainant shall be entitled to take recourse to execution case in a separate proceeding for getting delivery of possession, execution and registration of the Sale Deed by this Commission and for this purpose complainant shall have to bear all costs and service charges for execution and registration charges of the Sale Deed and also to pay the charges for deputing an officer of this Commission on behalf of complainant for execution and registration of the Sale Deed on behalf of the OPs.

OP directed to pay an amount of Rs. 1 lakh (one lakh only) as compensation to the complainant for causing harassment and mental pain and agony along with litigation cost of Rs. 20,000/- (twenty thousand only) within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution U/S. 25 read with Sec. 27 of the C.P. Act and in that case,  OP shall be liable to pay punitive damage @ 5,000/- (five thousand only) per month to the complainant till full and final satisfaction of the decree. 

Let a copy of this judgement be supplied to the parties free of cost