DATE OF FILING : 23-09-2010.
DATE OF FINAL ORDER : 28 -03-2011.
Sri Malay Kumar Basu,
son of Late Kali Jiban Basu
of 18/2, Haldar Para Lane, P.S Shibpur,
Howrah – 711102. COMPLAINANT.
Versus -
1. Sri Ashoke Kumar Haldar,
son of Late Sudhir Kumar Haldar,
of 18/2, Haldar Para Lane, P.S. Shibpur,
Howrah – 711102.
2. Lakshmi Builders,
a partnership firm having its office
at 16, Sribas Dutta Lane,P.S. Howrah,
District – Howrah, represented by its
Parterns : -
i) Smt. Bhabani Das,
wife Sri Asok Kumar Das,
residing at 16, Sribas Dutta Lane,
P.S. and District – Howrah.
ii) Smt. Monimala Mukherjee,
wife of Sri Srikanta Mukherjee of
32/1, Jadav Das Lane, P.S. shibpur,
District – Howrah. OPPOSITE PARTIES.
P R E S E N T
1. Hon’ble President : Shri J.N. Ray..
2. Hon’ble Member : Smt. Samiksha Bhattacharya.
3. Hon’ble Member : Dr. Dilip Kr. Chakraborty.
C O U N S E L
Representative for the complainant : Smt. Aiswarjya Gupta,
Ld. Advocate.
Representatives for the opposite party no. 1
: Sri S.K. Dutta,
Smt. Anindita Dutta,
Ld. Advocates.
Opposite party no. 2 : Ex parte.
F I N A L O R D E R
This is to consider an application filed by one Malay Kumar Basu, son of Late Kali Jiban Basu, resident of 18/2, Haldar Para Lane, P.S. Shibpur, District – Howrah, against the O.P. no. 1, Sri Ashoke Kumar Haldar, and O.P. no. 2, Lakshmi Builders, a partnership firm, having its office at 16, Sribas Dutta Lane, P.S. and District – Howrah, U/S 12 of the C.P. Act, 1986 for alleging deficiency in service.
The case of the complainant is that he was the monthly tenant under the O.P. no. 1 Ashoke Kumar Haldar in respect of a portion of the ground floor situated at 18/2, Haldar Para Lane, P.S. and District – Howrah, and as the O.P. no. 1 intended to promote a flat in the above referred premises, he approached the complainant to vacate the tenanted premises and also stated that after the construction of the proposed building he ( complainant ) would be rehabilitated at the aforesaid premises. On this the complainant agreed to the proposal made by the O.P. no. 1 and on 9th September, 2002 he ( complainant ) entered into an agreement for sale with O.Ps. no. 1 and 2. That in the aforesaid agreement for sale it was clearly mentioned that on 14-03-2001 another agreement was entered into between the O.Ps. no. 1 and 2 wherein it was settled that after the construction of the building the owner of the land i.e., O.P. no. 1 Ashoke Kumar Haldar would get 40percentage of the flat as owner and rest 60percentage of the flat would remain with the developer O.P. no. 2 Lakshmi Builders. But in the aforesaid agreement for sale O.P. no. 1 agreed to sell self contained complete flat measuring about 300 sq. ft. from his share to the complainant at a price of Rs. 65,000/- of which Rs. 10,000/- was paid in advance at the time of agreement by the complainant and the same was duly received by the O.P. no. 1. It was also agreed between the complainant and O.P. no. 1 that after two years from the date of approval of the sanctioned plan by the corporation the O.P. no. 2 would be liable to demark the property of the complainant and handover the same provided in the mean time the complainant would pay the rest amount as agreed and O.P. no. 1 would be bound to register the sale deed of flat. At the time of construction of the said flat complainant approached the O.Ps. to handover another 46 sq. ft. for bath room which is essential for the flat and verbal agreement was entered into between the parties. It was also agreed that for the said 46 sq. ft. should be given from the portion of the developer / O.P. no. 2 for which the complainant was required to pay Rs. 35,000/- which amount had actually paid by the complainant and duly received by the developer / O.P. no. 2. It is contended that after construction of the flat in the year 2008, October, the complainant was given possession of the self contained flat at the ground floor of the aforesaid premises as agreed and thereafter the complainant repeatedly requested the O.P. no. 1 to accept the remaining amount of Rs. 55,000/- and the complete the rest of the formalities that as per agreement to register the flat. But inspite of repeated requests the O.P. no. 1 did not take any step to complete the said transaction and purposely delayed the matter by raising extraneous condition and tried to give only the right of structure without giving rights of land and other common rights which the complainant is entitled like other flat owners. It is alleged that this sort of attempt of O.P. no. 1 would make complication of registration and mutation with municipality. It is further alleged that the O.P. no. 1 after delaying the matter at their own fault now demanding extra money which was not within the terms and conditions of the agreement. The complainant had sent draft copy of the sale deed for approval of the O.P. no. 1 but the O.P. no. 1 is imposing certain terms and conditions which are not included in the agreement. Moreover, O.P. no. 1 is trying to deprive the complainant from certain rights and privileges which the complainant is entitled as an owner of a self contained flat. That the complainant thereafter on 15-09-2008 requested the O.P. no. 1 in writing to accept the remaining amount of money and to take proper step in order to register the flat in favour of the complainant. In spite of receipt of letter issued by the complainant the O.P. no. 1 did not take any step. That thereafter vide letter dated 29-12-2008, 08-04-2009, 11-11-2009, 09-12-2009 and 21-04-2010 the complainant repeatedly requested the O.P. no. 1 to take step in order to register the flat in the name of the complainant and take the due amount. That the O.P. no. 1 did not pay any heed to the matter and causes mental agony to the complainant. On 05-05-2010 the complainant through his ld. Advocate sent a legal notice to the O.P. no. 1 stating that to taker appropriate steps to register the flat in favour of the complainant after agreed money as otherwise she was advised the complainant to take legal action against the O.P. no. 1 and inspite of receipt of said legal notice the O.P. no. 1 did not take any step to conclude the transaction. So it is alleged that the conduct of the O.P. no. 1 is nothing but gross deficiency in service to the complainant and complainant has been suffering from various ailments and at this stage the O.P. no. 1 without any reason whatsoever harassing the complainant by keeping complete silence over the matter and not registering the sale deed in favour of the complainant.
That in the circumstances the complainant has filed the instant case supported by necessary papers and the instant case was filed within the period of limitation and also prayed for giving direction upon the O.P. no. 1 to register the flat after accepting the balance consideration amount from the complainant in accordance with the agreement for sale entered into on 09-09-2002 and also to pay compensation of Rs. 50,000/- for mental agony and harassment and also to pay cost of Rs. 10,000/- for litigation.
On receipt of the notice the O.Ps. being O.P. no. 1 appeared before the Forum and submitted written version.
The O.P. no. 2, the promoter / developer did not appear before the Forum and the complaint was heard against him ex parte.
The O.P. no. 1 has stated in the written version that the instant case is not maintainable either in law or in facts and the same is barred by law of limitation to which the complainant is not entitled to get relief as prayed for i.e., due to the non compliance of the terms of agreement for sale and also raises jurisdiction point and denies each and every statement and /or allegation. It is contended on behalf of the O.P. no. 1 that the complainant is the owner and occupier of the premises situated at 25B, Nandan Park, Behala, Kolkata, under Kolkata Municipal Corporation and the complainant is never a tenant of the said premises and admitted that there was an agreement with the complainant dated 08-09-2002 which has been stipulated that against the allotment of a flat measuring 300 sq. ft. covered
carpet area in the ground floor of the said building on the eastern side which the complainant agreed to purchase against the total amount of Rs. 65,000/- only of which the complainant paid Rs. 10,000/- as advance. On the other hand the O.P. no. 1 raises various objection regarding not taking any step by the complainant to make register of the flat for which the O.P. no. 1 has no latches and negligence. It is stated that on the plea of purchasing the flat the complainant has failed and neglected to pay rent since October,2007 and the O.P. never delayed the matter at his own fault and now demanding extra money in the manner as alleged or at all. On the contrary as per agreement for sale the O.P. no. 1 requested the complainant to fulfill the terms and conditions but he did not pay any heed to his request. However, the O.P. no. 1 denied all the material allegations made by the complainant in this case and his conduct is nothing but gross deficiency in service to the complainant and the complainant willfully neglected and / or violated the terms and conditions of the contract of sale in respect of good gesture of the objector. It is also denied that the complainant is a senior citizen and is suffering from various ailments without any reason whatsoever is harassing the complainant by keeping complete silence over the matter and not registering the sale deed in favour of the complainant in the manner as alleged. So the application filed by the complainant has got no merits and it is liable to be dismissed with cost.
owfHow
Point for determination is that whether the application is
liable to be allowed or not ?
DECISION WITH REASONS :
In support of the complaint, the complainant has filed certain documents namely xerox copy of agreement for sale dated 09-09-2002 ( marked exhibit Annexure P-1 ), copy of receipts issued by O.P. no. 1 in favour of the complainant ( marked Annexure P-2 ) showing payment of the flat, copies of draft sent by the complainant marked collectively with Annexure P - 3, copy of letter dated 15-09-2008 issued by the complainant in favour of the O.P. no. 1 and the acknowledgement card annexed marked with letter P -4, copies of letter dated 29-12-2008, 08-04-2009, 11-11-2009, 09-12-2009 and 21-04-2010 acknowledged collectively from the letter P -5, copy of letter dated 5th May, 2010 marked with letter P- 6 and the xerox copy of document showing the possession of the complainant marked with letter P -7.
On the other hand O.P. no. 1 also filed xerox copy of certain documents namely deed of sale dated 10-05-2007 between Lakshmi Builders and Kumud Ranjan Banerjee and Priti Banerjee and Ashoke Kumar Haldar, the owner of the property. Both parties also filed written brief notes of argument in support of their case. Complainant also filed certain decisions in support of the case.
Ld. Advocate appearing on behalf of the complainant has submitted before us that in order to substantiate the case the complainant has filed supported documents wherein the agreement dated 09-09-2002 goes to show that as per agreement he is entitled to get relief as prayed for i.e., as per agreement he is entitled to get the booked flat measuring about 346 sq. ft. registered from the O.P. no. 1 and 2 and he has already paid advance money of Rs. 10,000/- and subsequently Rs. 35,000/- for extra portion from the O.P. no. 2 and he was also delivered possession and has been residing there since October,2008. He also complied certain other terms and conditions and requested the o.p. to get the flat registered in his favour after receiving the balance amount of Rs. 55,000/- from him i.e., complete the rest of the formalities as per agreement. The various letters has been given to the O.P. no. 1 to register the flat and in spite of repeated requests the O.Ps. did not take any step to complete the transaction and purposely delayed the matter by raising extraneous conditions and trying to give only the right of structure without giving the rights and also other common rights which the complainant is entitled to like other flat owners. The several letters in the complaint go to show that the complainant’s intention to pay the rest amount to the O.P. no. 1 for registration of the flat by the O.P. no. 1 but the O.P. no. 1 tried to unilaterally modify the terms of agreement and the complainant made attempt to complete the registration as per terms within the period of limitation. Lastly complainant also gave a legal notice but the same was also not honoured by the O.P. no. 1 though duly received. .
On the other hand we do not find any cogent evidence or papers to prove that the O.P. nos. 1 and 2 had taken any positive step for getting the flat registered in favour of the complainant in spite of receiving the letters from the side of the complainant. Even not a single piece of evidence go to prove that the O.P. had taken any attempt to comply the terms of agreement with the complainant. The O.P. no. 1 also never raised the plea of access at any point of time after construction but raised this plea at the time of registration to grab more money from the complainant and to delay the registration and that plea at this stage should not be accepted and entertained by us. We find that the agreement between the complainant and the O.P. no. 1 is not a joint venture agreement but an agreement for sale of a flat upon construction of the same. For such premises the complainant is a consumer and the O.Ps. are the service provider. So the complaint is well maintainable and non registration of the flat by the builder / owner is certainly comes under the purview of deficiency in service and the dispute raised by the intended purchaser is a consumer dispute and . Further it appears from the conduct of the O.Ps. we find that the complainant has been mentally harassed for years together by non registration of the flat by the O.P. no. 1 and for such circumstances the O.P. no. 1 being a service provider cannot escape his liability in any manner contrary he is bound to register the flat in favour of the complainant on receipt of the balance consideration amount of Rs. 55,000/-.
Having heard on both sides and also considering the papers on record wherein the O.P. nos. 1 and 2 having failed to honour the commitments made in the agreement dated 09-09-2002 with the complainant proves the guilty of deficiency in service. We are of the view that as per provision U/S 14 of the C.P. Act, 1986 the complainant is entitled to get an order of direction upon the O.P. no. 1 for getting registration of the schedule flat in terms of agreement.
In the result the complaint succeeds.
Hence,
O R D E R E D
That the complaint petition is allowed on contest against O.P. no. 1 and dismissed against the O.P. no. 2 ex parte.
That the O.Ps. no. 1 is hereby directed to register the flat as per agreement of sale entered into on 09-09-2002 after accepting the balance consideration amount being Rs. 55,000/-by the O.P. no. 1 in the name of the complainant and also to pay a compensation of Rs. 20,000/- for mental agony and harassment and also to pay a cost of Rs. 10,000/- as litigation cost.
The above order be complied by the O.P. no. 1 within one month from the date of order hereof failing which the complainant is entitled to get interest at 8percentage per annum till the date of registration of the flat.
Supply the copies of the order to the parties, free of costs, as per rule.
