Judgment : Dt.16.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act by Sri Manab Bandhu Bera alleging deficiency in service on the part of the Opposite Parties (OPs hereinafter) namely (1) Sri Haridas Bhattacharjee, (2) Smt. Madhuri Bhattacharjee, (3) Sri Pranab Bhattacharjee and (4) M/s Sekhar Bhattacharjee.
Case of the Complainant in a nutshell is that he entered into an unregistered agreement for sale with the opposite parties (referred OP hereinafter) in respect of a self contained flat, at the ground floor of a proposed IV storied building at Plot No.9/39, Netaji Nagar, P.S.-Patuli, now Netaji Nagar, Kolkata-700 092 measuring more or less 800 sq.ft. super built up area together with proportionate share of the land at a consideration of Rs.14,00,000/-. It is stated that the Complainant had paid Rs.12,68,000/- to the OP No.4 Developer and the balance amount of Rs.1,32,000/- will be paid on registration of Deed of Conveyance in respect of the said flat. It is further stated by the Complainant that as per terms of the said agreement the OP was to have completed the ground floor flat and handed over possession of the said flat within 15.9.2014 but fact remains that possession of the said flat has not been delivered to the Complainant so far. The Complainant has further stated that he sent a letter dt.01.9.2015 asking the OP developer to deliver possession of the said flat and to refund the excess amount paid towards consideration on the ground of shortfall of promised area of the flat but the said letter remained unreplied. Accordingly, the Complainant has prayed for direction upon the OPs to execute registration of Deed of conveyance in respect of the property in question after refund of consideration as per terms of the agreement in favour of the Complainant, to pay Rs.50,000/- towards compensation and Rs.10,000/- towards cost of litigation, to complete the flat to the satisfaction of the Complainant, to issue the letter of possession, completion certificate sanction plan, etc.
The OP Landowners i.e. the OP NOs.1, 2 & 3 have filed written version disputing allegations as made out in the petition of complaint stating inter alia that they are not aware of execution of the agreement for sale which the Complainant has referred in his petition of complaint and further stating that they did not receive any amount for consideration from the Complainant and thus they have been wrongly impleaded as party to the instant case and accordingly they have prayed for dismissal of the complaint case with cost.
The OP developer i.e. the OP No.4 has also filed written version stating, inter alia that an agreement for sale was executed by and between the parties in respect of the flat in question and as per terms of the said agreement the developer delivered possession of the said flat to the Complainant. It is further stated by the OP No.4 that the Complainant after receiving possession of the said flat the Complainant raised the issue of shortfall of area and demanded refund of money which are very much baseless and, therefore, the execution of registration of Deed of Conveyance has not been taken place so far. The OP No.4 has expressed his willingness to register the deed of conveyance in favour of the Complainant.
Parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate on behalf of the Complainant narrated the facts mentioned in the petition of complaint.
Ld. Advocate for OP Nos.1, 2 & 3 submitted that his clients were not aware of execution of agreement for sale.
Points for determination –
- Whether there is deficiency in service on the part of the OPs.
- Whether the Complainant is entitled to get relief as prayed for.
Decision with reasons
Both points are taken up together for comprehensive discussion and decision.
The Complainant has claimed to have entered into an agreement for sale with the OPs in respect of a flat to be delivered by the OP No.4/developer at a consideration of Rs.14,00,000/-. The developer has admitted the above mentioned facts.
The Complainant has alleged shortfall of flat area and prayed for refund of excess amount of consideration. It is observed that the Complainant in support of this allegation has filed no authentic document like report of Engineer Commissioner, wherefrom it would have been evident that there is shortfall in area in the said flat and therefore the developer is to refund the amount for consideration as to the shortfall area. Therefore, in absence of proof this allegation is not substantiated.
The Complainant has alleged that the OP developer failed to execute and register the deed of conveyance in favour of the Complainant in respect of the said flat. The OP developer, however, has submitted that he has delivered he said flat in accordance with the terms of the agreement for sale and no shortfall of area is involved there and as such he is not liable to refund any amount for the alleged shortfall of the area of the flat in dispute. The OP developer, however, has expressed his willingness for execution of registration of deed of conveyance in favour of the Complainant. It is evident on perusal of the document on record stated that the Complainant in his reply to the cross examination by the OP developer that he has paid Rs.13,68,000/- towards consideration so far and an amount of Rs.1,32,000/- is payable on registration of deed of conveyance.
Under such state of affairs, we are inclined to allow the prayer for registration of deed of conveyance in favour of the Complainant on payment of balance amount of consideration. It is further evident that demand for refund of amount from the end of the Complainant has not been accepted by the developer and thus the matter of registration of deed has been delayed and hence no order for compensation and cost is allowed.
In the result, the Consumer Complaint succeeds in part.
Hence,
Ordered
that the Consumer Complaint being No.171/2017 is allowed in part on contest but without any order as to cost.
The OP No.4 is directed to execute registration of deed of conveyance in favour of the Complainant in respect of the flat at plot No. 9/39, Netaji Nagar, P.S.- Patuli now Netaji Nagar, Kolkata-700092, after receiving balance amount of Rs.1,32,000/-.
