Date of Filing: 16/11/2021
Date of Judgement: 11/11/2024
Sri Manish Deb, Hon’ble Member.
The fact of the case is that the OP No.1 is the owner of the land measuring abou 1 cottah 15 chittacks more or less situate and lying at Mouza Bansdroni, J.L.No.45, Re.sa.No.381, Touzi No.63,64, R.S.Dag No.836(P),R.S.Khatian No.253,P.S.Regent Park, Ward No.113, ADSRO Alipore, District – 24 Parganas(S), Municipal Holding No.247, Niranjan Pally, Block-A Anandapally (East), Kolkata – 700 070 .
That the OP No.1 entered into a development agreement with OP No.2 on 15.10.2015 to develop the aforesaid land by constructing a multistoried building as per sanction plan.
That the OP No.2 constructed a multi storied building on the said land as per sanction plan on the said Holding being No.247, Niranjan Pally, Block-A Anandapally (East), Kolkata – 700070 , containing several flat /units for residential purpose
That the OPs have entered into an agreement with the complainant 18.03.2019 for sale or transfer all that residential self contained flat being No.3C, on the 3rd floor measuring about 723 Sq.ft. super built up area along with the common users, enjoyment and common facilities in the Holding being No.247, Niranjan Pally, Block-A Anandapally (East), Kolkata – 700070 , at a consideration of Rs.17,00,000/- .
That the OPs have already received Rs.15,00,000/- out of total consideration of Rs.17,00,000/- against sale of the aforesaid flat described in schedule of the sale agreement.
That it is specifically mentioned in the said agreement dated 18.03.2019 that the OP No.2 shall have to liable to collect the NOC from HDFC Bank by paying balance loan amount payable to the HDFC Bank and obtain all clearance certificate from the HDFC Bank and also liable to hand over the said original agreement for sale to the complainant.
That OP No.2 did not complied with the aforesaid agreed terms of agreement dated 18.03.2019 but demanded balance consideration money of Rs.2,00,000/- and send a draft copy of deed of conveyance to the complainant .
Thereafter the complainant by a letter dated 23.11.2020 through his Ld Advocate requested the OPs to comply the terms of agreement for transfer dated 18.03.2019.
That the OPs by a deed of Memorandum of Understanding dated 30.12.2019 agreed to allow the complainant to use the flat till registration and during this period they shall not claim any rent or cannot ask for vacating the flat and assured to complete the registration within 31.03.2020. The OPs further assured that they will necessarily provide completion certificate of the flat on or before 31.03.2020.
That the OPs failed and neglected to comply with their assurances which are given in the MOU dated 30.12.2019 inspite of repeated requests made by the complainant to the OPs.
That the complainant states that the aforesaid negligence of the OPs to complete the registration of the flat is nothing but deficiency of services.
That the OPs by a letter dated 08.01.2021 through their Ld Advocate admitted that they are unable to complete the registration inspite of their assurances given in the MOU dated 30.11.2019 , 31.03.2020.
That from 31.03.2020 more than one and half year has been lapsed but the OPs failed and neglected to complete the registration of the flat. The construction of the flat is yet not completed even it is left not in habitable condition.
That such action and/or inaction on the part of the OPs caused serious troubles and suffering to complainant. That complainant thus had come before this Commission to get relief through order direction upon OPs to execute and registered the deed of conveyance in favour of the complainant and to complete the incomplete construction in respect of the flat as mentioned in the schedule of the sale agreement. The petitioner is also prayed to get compensation for suffering pain and mental agony due to negligence and deficiency of service on the part of the OPs.
That in light of the above mentioned circumstances the complainant apprehends loss of her legitimate rights, title and interest and possession over the flat.
That inspite of repeated requests the OPs failed and neglected to execute and register the deed of conveyance in favour of the complainant.
The property situated at Mouza Bansdroni, J.L.No.45, Re.sa.No.381, Touzi No.63,64, R.S.Dag No.836(P), R.S.Khatian No.253,P.S.Regent Park, Ward No.113, ADSRO Alipore, District – 24 Parganas(S), Municipal Holding No.247, Niranjan Pally, Block-A Anandapally (East), Kolkata – 700 070 within the territorial jurisdiction of the this Commission .
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not completing the registration process of the flat with completion certificate, possession of the flat as stated in the compliant petition.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative
The complainant has submitted his evidence, brief note of argument in the case.
The complainant has adduced evidence together with copy of documents which includes money receipt.
The complainant filed one agreement dated 18.03.2019 with the OP and the advance payment receipt receipts issued by both the OPs and also copy of MOU and also filed a copy of the notice of the Ld. Advocate for the complainant
The opposite party No.2 appeared in the instant case filed his written version none appears on behalf of the OP No. 1 in spite of good service of notices.
The complaint petition as well as affidavit in evidence of the complainant therefore the statements made by the complainant as well as the documents tendered by the complainant are almost unchallenged and unchallenged evidence is deemed to be admitted.
The OP No 2 has contested the case , submitted written version , questionnaires against evidence of the complainant but not submitted any reliable documents to defend the complainant’s allegation as filed by the complainant .
We have applied our mind and meticulously gone through the materials on record. we find reasonable ground and proof there in support of complainant contention.
By all means we are of the opinion that ops are liable in deficiency of service and unfair trade practice as alleged by the complainant even non participation of OP No. 1 in the case and non filing of any written version & evidence it is a clear cut proof of deficiency in service on the part of the Ops and there was an established fact of breach of contract as per the agreement & MOU so called.
The complainant has come before the this Commission for redressal. The complainant as purchaser has performed his obligation by paying the major consideration money but Ops failed and neglected to render their services by executing and registering the deed of conveyance in respect of the flat as mentioned in the complaint petition and sale agreement in habitable condition.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
Hence it is
ORDERED
CC No.549/2021 is allowed against OPs with cost.
- OPs are directed to execute and register the deed of conveyance of the flat as mentioned in the scheduled of the complaint petition as well as schedule of sale agreement in habitable and in complete condition of the flat after receiving Balance consideration money from the complainant and deliver the possession of the flat within 60 days from the date of this order.
- OPs are directed to pay compensation for mental agony, harassment and also for non delivery of the possession of the flat on time of Rs.1,20,000/- to the complainant within 60 days from the date of this order.
- OPs are also directed to pay Rs.20,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
