This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant is that the complainant entered an agreement with the OP by virtue of an agreement for sale dated 16-01-1998.  The complainant is all along ready and willing to perform his part in terms of the said deed of agreement by which the complainant had to pay a sum of Rs.1,95,000/- initially and the balance sum of Rs.2,53,000/- is to be paid at the time of registration.  In all the complainant paid a total sum of Rs.4,48,000/- to the OP on the basis of trust and mutual relationship.  In terms of the said deed of agreement the possession was to be delivered within 9 months from the date of agreement.  But subsequently, the possession was delivered to the complainant after a period of 6 years which is violation of the terms and condition of the said deed of agreement.  Possession certificate was handed over on 08-01-2003 but in spite of repeated request the OP did not execute and register the sale deed in favour of the complainant in terms of the deed agreement and is trying to avoid the same by any means.  So, the complainant issued a legal notice on 01-12-2009 but the OP by his letter dated 04-01-2010 new terms and conditions have been entered in order to get the registration of the sale deed.  Those conditions are – payment towards some extra work, the demolition of the unauthorized temporary structure or room in the front side.  But the alleged unauthorized structure as stated by the OP cannot be called an unauthorized structure as per joint memorandum dated 03-07-2003 and on its basis all the flat owners and the OPs mutually agreed and signed by all the parties.  Thereby the garage belonging to the complainant cannot be demolished unless all the garages for the respective flat owners including the complainant would be constructed.  So, the complainant again issued legal notice dated 15-01-2010 even then no fruitful result is achieved.  Such activities of the OP amounts to deficiency of service.  In spite of repeated requests the OP did not execute and register the sale deed by which several other problems have been cropped up.  Hence, this case supported by affidavit. 

            The OP contested the case by putting written version denying each and every allegation made therein with a specific defence the case is not maintainable.  Their soul defence is that payment of consideration in terms of a deed and agreement has been paid by the complainant who did not pay the amount as done as per extra work and the complainant also did not demolish the temporary constructed garage and he has not come before this Forum with clean hand.  As the complainant did not demolish the garage as constructed the other co-flat owners demanded equal garage at the ground floor.  As the complainant did not demolish the unauthorized construction and suppressed the material fact the complainant will not entitle to get any relief as sought for.  There is no deficiency of service or negligence on the part of the OPs and, as such, the case is liable to be dismissed with cost.

Upon consideration of the pleadings of the respective parties the following points are framed for adjudication :

1)     Is the case maintainable ?

2)     Is the case barred by limitation?

3)     Is the complainant a consumer?

4)     Is there any deficiency of service as provided under the law? and

5)     Is the complainant entitled to get the relief as sought for?

Decision with Reasons

Point Nos.1, 2 and 3 : All these points are taken up together for the sake of convenience.  In order to attract the provision under the C.P. Act, 1986 the complainant is to first established that he is a consumer as defined u/s.2(1)(d) of the C.P. Act, 1986.  In support of the case of the complainant a sale deed has been submitted by the complainant from which it reveals that the complainant entered into an agreement with the OP for purchasing a flat as per schedule to the deed of agreement dated 16-01-1998 at a consideration of Rs.4,48,000/-.   In terms of the deed of agreement it further reveals that the OP constructed a flat of the building with several facilities and thereby the complainant agreed to purchase a flat no.6 on the first floor measuring about 640 sq. ft. and when payment was made by the complainant to the OP, there is a relation in between the complainant and the OP under the deed of agreement for providing a flat at a consideration of Rs.4,48,000/- which was admittedly paid by the complainant.  The position of the OP is a service provider as defined the provision under the C.P. Act, 1986.  When the service was availed of on consideration the complainant is a consumer as defined u/s.2(1)(d) of the C.P. Act, 1986. 

            Whether the service was not provided or inadequate it relates with the merit of the case that cannot be decided at this stage without going through the evidence and on consideration of materials on record.   Therefore, the case is quite maintainable and the case also is instituted within the law of limitation as provided u/s.24A of the C.P. Act, 1986 and, as such, the points are decided in favour of the complainant accordingly. 

Point Nos.4 & 5 : The complainant led evidence in terms of the complaint.  According to him, the delivery of possession of the flat in question in terms of the agreement for sale dated 16-01-2998 was given after a period of 6 years and the same is clear violation of the terms and agreement of the said deed of agreement and possession was handed over on 08-01-2003.  Possession certificate also handed over to him on 08-01-2003.  He was thoroughly cross-examined by way of questionnaire and reply thereof. 

            In this regard it may be mentioned here that the complainant was cross-examined on the point of any encroachment on the portion of the ground floor by question no.8 which has been denied by the complainant in his reply.  Even in question no.12 he has specifically put a question about encroachment of common area at the ground floor for making construction thereon and the same was also denied by the complainant.  The OP also led evidence and categorically stated that the complainant illegally made a construction in the ground floor as a result of which all other flat owners of the said building demanded equal space for garage for six flat owners and damages and refund of money.  In support of his contention a copy of the joint application made by flat owners have been filed wherein all those flat owners including.  The complainant were the parties to the decision made by all those flat owners in presence of members of local party by letter dated 10-07-2011 made a complaint before the OC, Beliaghata P.S. intimating that the complainant made a garage illegally and occupied the common place.  Even he did not pay any maintenance charge of Rs.100/- of his flat from 2006 and the same was received by the said Beliaghata P.S. on 10-07-2011. 

            On careful consideration of the deed of agreement copy of which was placed for appreciation from which it reveals that the complainant booked a flat on the first floor, Western side measuring about 640 sq. ft. together with proportion undivided share on the land with the right of use and enjoyment of the common areas. 

            On careful consideration of the materials on record it further reveals that the complainant paid the entire consideration to the OP and there is no denial of it.

            It is evident that the complainant got possession certificate from the OP.  It further reveals by letter dated 08-01-2003 the OP requested the complainant to take over possession of the said flat.  By letter dated 01-12-2009 the Ld. Advocate on behalf of the complaint requested the OP to get execute on and registration of the sale deed in favour of the complainant within the stipulated period as made therein.  Against the said letter the OP made a reply on 04-01-2010 wherein it has been categorically stated that about the illegal construction made by the complainant in a common area and requested to demolish the said unauthorized structure.  It further reveals at running page of 30 along with the complaint it reveals that the complainant has filed a copy of the minutes held by flat-owners including local party members from which it reveals a meeting was held on 03-07-2003 and it has been decided that so long six other flat holders did not receive any equal space of garage room, the garage room of Ratan Sarkar would not be demolished and it was signed by 7 flat holders including Ratan Kumar Sarkar who put his signature at serial no.3.  There is no denial on the part of the complainant that he never put any signature in the decision made by flat owners and other local party members in a meeting held on 03-07-2003.  The said deed of agreement does not speak about any provision of booking a space for garage or there is a provision for garage intended to be purchased by the complainant or the service provider took any money from the complainant about the alleged construction of garage made by the complainant.  The said document has come out from the end of the complainant.   Now it has been denied by the complainant about raising any construction thereon making as a garage.

            The Ld. Advocate on behalf of the OP relied a decision reported in Supreme Court and National Commission’s Consumer cases page 3566 wherein Hon’ble National Commission held that the Commission cannot be a party to unauthorized dealings.   It is further argued that when the complainant made an illegal construction unauthorizedly over the common area making a garage the complainant cannot claim any compensation from the OP service provider as he has not come before the Forum with clean hand.  It has already pointed it out that the document has been placed by the complainant showing a decision held amongst all the co-flat owners including the complainant together with local party members dated 03-07-2003.  It transpires that there is admission of raising unauthorized structure in the ground floor claiming as garage and so long and such type of area would not be distributed to other co-flat owners of the said building the garage of the complainant would not be demolished.  Even then it has been denied by the complainant. 

            Now, the question is whether there is deficiency of service or not.  Deficiency as defined under Section 2(1)(g) means any fault and imperfection.  Here in the instant case in terms of deed of agreement the OP service provider is to complete the building in question within 9 months from the date of execution of the said instrument and the possession of the said flat be delivered by the vendor to the purchaser by the said date.  But in view of the said contract delivery of possession was not given within the stipulated period.  The contract was made on 16-01-1998 and the possession certificate was delivered admittedly on 08-01-2003.  So, it is apparent that the delivery of possession was given after lapse of 7 years.  It clearly violates the terms and condition of the said deed of agreement but each case is to be decided on its own merit as because from the admission on the part of the complainant it is apparent there is unauthorized construction made by the complainant for the purpose of garage and it raised a grievance upon all the flat owners consequence of which such decision was taken in the meeting held on 03-07-3003 for providing equal space to all other flat owners for raising garage.  Now the complainant cannot retreat from such admission of raising unauthorized construction of garage.  In a case of equitable relief party is to come forward with clean hand.  Here, no illegal thing can be legalized through court of law.  Though registration of the deed was not made by the OP within the stipulated period it is violation of contract and comes within the purview of deficiency of service but considering the circumstances it is fit and proper necessary direction should be given to the complainant for removal of the said unauthorized construction making as a garage. 

            Therefore, considering the circumstances, despite holding deficiency of service on the part of the OP Service Provider no compensation lies to the wrong doer like the complainant making such illegal construction.  Until and unless execution and registration be given no title would be passed in favour of the complainant relating to the flat in question.  In the result the case succeeds in part.

Hence, it is,

Ordered

The complaint Case No.37 of 2010 is allowed on contest in part but without cost against the OP.

            The complainant is directed to remove the unauthorized construction making as garage in that ground floor within 30(thirty) days from the date hereof.

            After removal of the said structure the complainant is entitled to get a decree for execution and registration of the sale deed in respect of the scheduled to the complaint in terms of deed of agreement dated 16-01-1998. 

            The OP is directed to execute and register the sale deed in respect of the flat as described in the deed of agreement as well as petition for complaint in favour of the complainant within 30(thirty) days from the date of removal of the unauthorized construction made by the complainant failing which the complainant is at liberty to put the decree in execution.

Let copies be supplied to the parties as per rules.