Hon’ble Mrs. Soma Bhattacharjee, Member
The complaint case being no. 398/2017 was filed by complainants Nilanjan Saha and Binod Roy against the Opposite Parties 1 to 5. The fact of the case in brief is like that OP nos. 1, 2 & 3 inherited the land as in schedule A. They signed a development agreement and a general power of attorney in favour of the OP nos. 4 & 5 Sri Moloy Jana and Smt. Lipika Nair to facilitate the partners of M/s. M.L. Developers to erect a pakka structural building in the said schedule A property on joint venture basis. The development agreement and general power of attorney was registered in the office of A.D.S.R. Behala.
The complainants being satisfied with the documents accepted the proposal of OP nos. 4 & 5 to purchase one residential flat of 1100 sq. ft. and one covered car parking space of 135 sq. ft. as per schedule B from the developer’s allocation of the proposed building in schedule A. The agreement for sale was signed on 04.02.2015, after the complainants paid Rs. 9,40,000/- on 04.02.2015. The complainants afterwards were compelled to pay a sum of Rs. 7,50,000/- as further part payment on 17th June, 2015 to the OP nos. 4 & 5. The consideration amount was Rs. 44,40,000/- (Rupees forty four lakh forty thousand) only.
Later the OP nos. 4 and 5 compelled the complainants to pay the balance consideration amount for the scheduled property saying that they were suffering from acute financial crunches and they could hardly implement the project. The OPs/ developers received the total consideration amount of Rs. 44,40,000/- for the B schedule property on the land as per schedule A and registered the deed of conveyance at the office of the DSR II Alipore on 15.10.2015 in favour of the complainant.
However, although the developers/ OPs assured the complainants that they would hand over possession of the said flat and covered car parking space after finishing it to make the flat habitable, including installation of lift, they actually did not take any steps to handover possession of the flat to the complainants.
The complainants in consonance with the instruction of the OP nos. 4 & 5 mutated their names with the office of the KMC in respect of schedule B property and the complainants have been paying taxes for the said property since then.
Although the complainant urged the OPs/developers to make arrangement to expedite the process of installation of lift in the said building the OPs did not do so. Notices were duly served upon the OPs. The complainants then filed CC/398/2017. The OPs appeared and filed Written Version. Both parties duly filed evidence on affidavit.
Perused and considered all materials on record.
Heard argument of both sides at length. Considered.
The Ld. Advocate for the Opposite Parties submitted that the deed of conveyance dt. 15.10.2015, which was registered after incorporating biometric signature of both vendors and vendees, was a fabricated one. They submitted that the Opposite Parties have filed a Title Suit in this matter before the Ld. Civil Judge, Senior Division at Alipore, T.S. No. 1193 of 2018, although the deed of conveyance was registered in the year 2015. However no injunction order has been issued in this matter.
Due to gross negligence on the part of the OPs the possession of the said flat as per schedule B has still not been handed over to the complainants. The complainants were compelled to lodge this complaint petition, cause of action having arisen on 04.02.2015 when the agreement was signed and part consideration was paid. Cause of action is still continuing as the flat is yet to be handed over by the Opposite Parties.
Points for decision are
- Whether the complainants are consumers
- Whether there is deficiency of service
- Whether the complainants are entitled to any relief
Since the OPs/ developers have taken the full consideration money from the complainants, they are consumers in terms of section 2(i)(d) of C.P. Act, 1986. The OPs/ developers have taken no steps to handover possession of the property as per schedule B to the complainants and therefore, there is definitely deficiency in service on their part. The complainants are therefore entitled to relief as prayed for.
Therefore it is ordered
The complaint case no. 398/2017 succeeds on contest with the following directions: (1) The Opposite Parties nos. 4 & 5 /developers are directed to handover possession of the flat and covered car parking space as per schedule B to the complainants within 60 days of this order.
(2) The Opposite Parties nos. 4 & 5 /developers are also directed to handover completion certificate.
(3) The Opposite Parties nos. 4 & 5 /developers are also directed to pay compensation of Rs 5,00,000/- (five lakh) for harassment and Rs. 25,000/- (twenty five thousand) as litigation cost within 60 days from today.
If the Opposite Parties/developers fail to comply with this order within 60 days the complainants will be at liberty to put this order into execution as per law.
The complaint case is disposed of.
