HON'BLE MR. ASHIS KUMAR BASU, MEMBER
Order No. 16
Date : 25.09.2019
The record is put up today for order.
The instant case being no. RBR/CC/09/2018 arises out of complaint filed U/S 12 of Consumer Protection Act ‘86 by the complainant for deficiency in service and unfair trade practice on the part of opposite parties in relation to refusal of registration of flat in favour of complainant by the OPs though the former got the possession of the flat in the year 2016.
The facts in brief are the complainant, Sri Ranjit Kumar Biswas, S/O Late Ramesh Chandra Biswas, aged about 54, residing at 122, Bidyasagar Avenue, B- Jone P.O. Durgapur, District- Paschim Bardhaman, PIN-713205 proposed to book a flat to be developed by OP No. 1 on the property owned by 1) Sri Swagoto Sanyal, S/O Late Swadesh Kumar Sanyal, residence of Qtr. No. CN1. SBSTC Colony, P. O. Durgapur, Dist : Paschim Bardhaman. PIN-713201. 2) Smt. Sukla Baanerjee, W/O Salil Banerjee, resident of Gorabazar, Baharampur, Dist: Murshidabad. PIN 742101. 3) Smt . Anjali Roy, W/O Saroj Kumar Roy, resident of Tewaripara, P.O. Ukhra, Dist: Purba Bardhaman, PIN- 713363. 4) Sri Gautaam Nath , S/O Late Bimal Chandra Nath , resident of 4A Urbashi Apartment, Vivekananda Park, Street-1, Tetikhola, P.O. Arrah. Durgapur, West Bardhaman Pin- 713212. 5)Smt. Seema Roy, W/O Sri Samir Roy, resident of 4A Urbashi Apartment, Vivekananda Park, Street -1, P.O. Arrah, Durgapur, West Bardhaman, PIN 713212. 6) Smt Soma Sharma, W/O Sri Tapan Sharma, resident of 609/3, Ashoknagar, Dist: 24 Pgs. (N) PIN 743222 . The complainant paid Rs.Rs. 200,000/-, Rs. 200000/- and Rs. 204530/- on 01.11.2011, 14.11.2011 and 05.01.2013 repectively to OP-1, the developer, for booking of the flat no. UR 2A on the second floor covering area 820 sq.ft in Urbasi Apartment having consideration price Rs. 1805100/-. Apart from this OP1 has to provide 150 sq .ft .area for car parking and 30 sq. ft. area for two-wheeler parking for Rs. 150000/- and Rs. 30000/-respectively. The said amount, totaling Rs.604530/- received by OP1 through bank cheques as an advance from the complainant for the flat which has to be built by him. The OP1 started construction work of the building after much delay. Complainant alleged that due to inordinate delay of construction work on the part of OP1, he was unable to obtain housing loan as required documents were not produced. However complainant applied for house building loan from Life Insurance Housing Finance Ltd ( LICHF ) and who disbursed Rs. 600000/- and 500000/- in favour of OP1 on 27.07.2015 and 31.10.15 respectively. LICHF disbursed the total amount of Rs. 1100000/-in two installments, firstly completion of building to some extent, lastly, at the stage of registration of deed of agreement for sale. Complainant alleged that the reason for disbursement of Rs. 1100000/- was delayed for late starting of construction by OP1 which was beyond the control of the complainant.
The registered deed of agreement to sale was executed on 11.12.2015. The complainant further alleged that the deed of sale agreement had been executed after four years of first payment for booking flat and OP1 incorporated some clauses which were arbitrary, whimsical and impractical and complainant was compelled to sign on the agreement as a huge amount of money had been already paid. Apart from this amount of Rs. 17,04,530/- (604530/- +1100000/-), complainant paid to OP1 Rs.100000/-, Rs.40000/-, Rs.60000/-, Rs100000/-Rs. 200000/- and Rs. 160000/- time to time in between 16.02.2016 to 20.11.2016, totaling Rs.6,60,0000/- through bank. Complainant alleged that after making gross payment of Rs. 2364530/- including extra money paid for extra work , OP1 failed to give delivery of possession of flat within stipulated period of time. Ultimately , the complainant got the possession of the flat on 25.11.2016 but as per allegation of the complainant the construction/ finished work was not as per specification mentioned in the deed of sale agreement. OP1 made some extra work in the said flat as per request of the complainant and the later was ready to pay another Rs. 100000/-to the OP1 as final payment at the time of registration of sale deed which is required for as per Apartment ownership Act.
Complainant requested OP1 in written for execution of registration of sale deed of the flat on 11.01.2018 and 25.01.2018 but OP1 refused to do the same on flimsy ground and in a letter to complainant dated 16.01.18 demanded Rs. 350000/- as a penalty for late payment. Complainant stated that LICH further issued a draft amounting to Rs. 100000/- in favour of OP1 which became invalid as OP1 did not complete the registration of sale deed. The complainant of the view that demanding unreasonable rate for extra work, unsatisfactory construction/ finish work, demanding penalty of 3.5 lakh and prolonged delay of delivery of possession and refusal of registration of sale deed on the part of OP1 amounts to deficiency in service and unfair trade practice as per provision of Consumer Protection Act’86. Complainant ventilate his grievance as he is being deprived of his legal right by OP1.
Complainant prayed for passing an order by this commission directing OP1 to execute the registration of the sale deed properly in favour of the complainant without charging any penalty and allow him to do the finish work by appointing a third party of his own choice. The complainant also prayed for Rs. 50000/- for his mental agony and harassment and Rs. 50000/- for unfair trade practice and Rs. 20000/- for cost of the case along with interest for delay of construction work.
OP No. 2 is one of the landlords and OP No. 1 is a developer/ promotor. OP No. 1 & 2 have appeared in this case and filed written version separately but did not turn up subsequently. OP No. 3 to 6 have neither appeared nor filed any written version
The submission in the written version of Saptarshi Construction, OP1 in this case, was that complainant agreed to purchase a flat no. UR 2A on 2nd floor of the building named “URBASI” Apartment in Dist: Burdwan for Rs. 1805100/-. Area of 150 sq. ft for car parking and 30 sq. ft. for two wheeler on the ground floor for Rs. 150000/- and 30000/- respectively would also be provided with total consideration amount Rs. 20,35,100/- and agreement for sale was entered on 01.11.2011 which was subsequently registered before ADSR- DURGAPUR,BURDWAN in the year 2015. As per 3rd schedule of said agreement the complainant should strictly follow the payment schedule otherwise 15% penalty would be charged on payable installment for each seven days delay. OP1 made some additional work amounted to Rs. 250000/- at the request of complainant and the final consideration value became to the tune of Rs. 2492058/- excluding cost of registration. Total payment made by complainant was Rs. 23,64,530/-out of total consideration amount Rs.2492058/- and he got the possession of the flat on 25.11.2016. OP1 also argued that complainant did not pay the balance amount of Rs.117528/- and all the necessary charges for registration process of sale deed . OP1 prayed for order for payment of balance amount Rs.117528 along with interest @ 10% and additional Rs.60000/- for maintenance charges. OP1 also prayed for directing the complainant to pay penalty charges @ 15% on Rs.117528/- for delay of payment for each seven days .
In the written version of Sri Swogoto Sanyal, OP2 , the submission was that the instant case has no relation to him and it is not maintainable against this OP. The land owners gave the power of attorney to OP1 who was solely responsible for advertisement, negotiation , authority to sell all the flats developed in the project and there was no monetary consideration of sale price with him. OP2 also disclosed that OP1 made inordinate delay for starting of the project paying no heed to the request of OP2. As per agreement dated 22.04.2013 with land owners , the project must be completed by OP1 within 30 months from date of plan sanctioned , but OP1 completely failed to handover the flat within stipulated period and ultimately OP2 cancelled the development agreement and revoked the power of attorney , vide letter dated 20.08.2018 marked as Annexure “B”. OP2 also added in the written version that he has no objection to execute sale deed in favour of complainant and prayed for dismissal of this case against him.
ISSUES
- Is this case maintainable under Consumer Protection Act 1986 ?
- Whether the OPs are responsible for deficiency in service ?
- Whether the complainant is entitled for reliefs as prayed for ?
Issue 1 : Ld. Lawyers on behalf of both the parties did not express their views before this Commission against the maintainability of this case under C.P.Act 86. Complainant is a purchaser of flat who intended to purchase the flat from the developer OP1 and landowners Hence complainant is a consumer and OP1 is a service provider. The total price consideration of the schedule flat is 24,92,058/-.Therefore, this case clearly falls under the purview of C.P. Act 86. Thls Commission has also pecuniary jurisdiction to take up this case.
Issues 2 and 3 are taken conjunctively for the sake of convenience of discussion. We have heard the arguments advanced by the Ld. Lawyers on behalf of both the parties in detail and peruse all materials on record. From record, it is evident that the OP1 received payment from complainant for booking of flat for Rs.604530/- within 05.01.2013 out of which Rs. 400000/- received within 14.11.11 but entered into the agreement with land owners for development of URBASI Apartment on 22.01.2013. From these facts and figures it is revealed that OP1 has received booking money from complainant well ahead he entered into agreement with land owners to develop the apartment. OP1 made the registration for agreement for sale of flat to complainant on 11.12.2015. So it is conclusively proved that OP1 enjoyed the booking money of complainant for a substantial period of time. It is also found that due to prolong delay of starting construction work on the part of OP1, complainant failed to obtain housing loan in time as required documents could not be produced resulting adverse effect on payment schedule. Contention of OP 1 was that complainant made late payment which did not conform with payment schedule but from circumstantial evidences it appears that complainant was sincere to make payment as per agreement and his effort to take house building loan from different agencies were bonafide. Complainant is an employee of Durgapur Steep Plant. Apparently he is entitled to get housing loan. But on several occasion his loan was not finalized as he could not submit the required documents due to prolong delayed of starting of construction work. Complainant was much harassed in this respect.
In the written version of OP 2 stated that OP 1, the developer made “inordinate delay in the project” and he requested several times to finish the construction work as early as possible and OP 1 is fully responsible for advertisement, negotiation and selling of flats. OP 2 alleged that as per terms and condition of registered development agreement made on 23.03.2013, the whole project had to be completed within 30 months from date of plan sanctioned but OP 1 failed miserably and ultimately the Op 2 cancelled the sale agreement and revoked the Power of Attorney of OP 1 on 20.08.2018. In the said deed of agreement in page No. 3 Sl. No. 1 it was mentioned that “this agreement shall be operating and become effective only from the date of execution of the agreement.
OP 1 could not give any valid reason for prolong period of delay of starting construction work taking huge amount of money from complainant if we take a close look into the matter it will transpire that the main dispute cropped up due to inordinate delay of construction work on the part of OP No. 1. Complainant also alleged that OP 1 did not complete the finish work as per specification of deed of sale agreement. OP1 remains silent on this matter. Complainant is ready to pay further one lakh as final payment and ultimately OP 1 gave the possession of flat to the complainant on 25.11.2016 which was beyond the stipulated period. OP 1 refused to execute the registration of the sale deed which is his legitimate claim. OP 2 demand the balance amount of Rs. 1,17,528/- excluding all registration charges along with Rs. 3.5 lakh from complainant as penalty for late payment.
All the facts and figures clearly shows that there is deficiency in service and unfair trade practice on the part of OP 1 . It is true that the complainant made some late payments and could not adhere to payment schedule as per agreement for sale. It is also true that OP 1 made inordinate delay of starting construction work for several years taking a huge amount of booking money for the flat for which the complainant suffered a lot, both financially and mentally. Hence, the faults are reciprocal. We are inclined not to interfere regarding the total consideration price of said flat. To meet the end of justice , we waived the penalty of Rs. 3.5 lacs which is charged on complainant by OP 1 for late payment. The claim for interest, compensation and cost as demanded by complainant is also waived for OP No. 1. The complainant shall pay the balance consideration amount of Rs. 1,17,528/- to OP 1 along with other necessary registration charges.
ORDER
That the instant case be and same is allowed ex-parte agaisnt the OPs.
Ops are directed to execute and register sale deed of the scheduled flat possessed by complainant within three months from the date of this order receiving the balance amount of Rs. 1,17,528/- along with all the necessary registration charges.
If OPs fail to execute and register of sale deed of the flat within the stipulated period, in that case the complainant shall be entitled to take recourse to execution case for separate proceeding to obtain the execution and registration of sale deed by this commission. For this purpose complainant shall have to bear all costs and service charges for execution and registration charge of the sale deed and also to pay the charges for deputing an officer of this Commission on behalf of the complainant for execution and registration of sale deed on behalf of the OPs
Failure to comply with the order will entitle the complainant to put the order into execution U/S. 25 read with Sec. 27 of the C.P. Act and in that case, OPs shall be liable to pay punitive damages @ Rs. 5000/- ( five thousand only) per month to the complainant till full and final satisfaction of the decree.
Let a copy of the judgement be supplied to the parties free of cost.
