Date of Filing : 18/01/2021
Date of Judgment : 12/11/2024
Sri Manish Deb, Hon’ble Member
Brief Fact of the case is that the complainant are resident of 269/A, Jaigir Ghat Road, 1 No. Bachar Para Road, Police Station – Thakurpukur, Kolkata – 700 063.
Complainant have preferred present consumer complaints under Consumer protection Act,2019 the Opposite Party No.1 is the developer of the project who is in engaged business of Real Estate Developer and Promoter and having its Office Cum Residence at 10, Sil Thakur Bari Road, P.O. Sahapur, P.S. New Alipore, Kolkata – 700038 and OP No.2 to OP No.14 are owners of the land measuring more or less 2 Cottahs, 10 Chittaks 00 square feet lying and situated at Municipal Premises No.123, Vinobha Bhave Road, P.S. New Alipore, Kolkata 700038 within the limits of Kolkata Municipal Corporation Ward No.119 wherein the new building constructed in which the complainants booked the flat.
That the complainants were looking for a suitable flat in the Behala, New Alipore locality and learnt about the aforesaid new proposed building to be constructed in said area. Therefore, they approached to the opposite party No.1 who offered them to sell a flat in the proposed new building to be constructed Municipal Premises No.123,Vinobha Bhave Road, P.S. New Alipore, Kolkata 700038 within the limits of Kolkata Municipal Corporation Ward No.119.
That the complainants found the aforesaid offer of the OP No.1 within their budget and being impressed by the said representation of the said OP No.1, the complainants became interested in the offer to avail a residential accommodation at the proposed three storied building to be constructed at Municipal Premises No.123, Vinobha Bhave Road, P.S. New Alipore, Kolkata 700 038 and Postal Address being 38, Sil Thakur Bari Road, P.O. Sahapur, Police Station, New Alipore , Kolkata 700038 within the limits of KMC Ward No.119.
According complainant entered into an agreement on 19th June, 2017 with opposite parties to purchase a self contained first floor flat at the proposed three storied building to be constructed at Municipal Premises No.123, Vinobha Bhave Road, P.S. New Alipore, Kolkata 700 038 and Postal Address being 38, Sil Thakur Bari Road, P.O. Sahapur, Police Station, New Alipore , Kolkata 700038 within the limits of KMC Ward No.119 , at a consideration of Rs.15,60,000/- and at the complainants paid Rs.5,00,000/- as advance money.
That according to terms of the said agreement, the OPs were under obligation to complete the said flat and handover the possession of same by within 18 months of agreement i.e. by 18.11.2018 but the same was not done. On the contrary the complainants were compelled to take possession of the flat in incomplete condition sometime on 09.09.2020, though it was clearly mentioned that in the event ops are unable to give possession of the flat in stipulated time the purchasers can claim interest @1.5% per month on the paid amount until the said flat be not ready with habitable condition for delivery of possession i.e within 18 months from the date of execution of agreement.
That the complainants paid the part consideration money of Rs.8,50,000/- out of total consideration money of Rs. 15,60,000 of the flat and proportionate share of land but in spite of that the opposite parties did not completed the flat in all respect and in time and also did not execute the deed of conveyance of the said flat causing great harassment and inconvenience to the complainants and started avoiding the complainants under one pretext or other and did not keep their obligations as stipulated in the said agreement though the complainants are ready to pay balance amount of consideration money in accordance to the terms of the sale agreement.
That thereafter the complainants made several representations to the OP No.1 and asked him to perform his duties and obligation as stipulated in the said agreement, however, complainants were assured by the OP No.1 that same will be done shortly but neither he completed the flat in all respect nor the deed of conveyance in respect of the said flat was executed in favour of the complainants .
That after observing the conduct and behaviour of the OP No.1 who failed to comply with its obligation in terms of agreement finding no other alternative the complainants issued a legal notice dated 05.10.2020 through Ld Advocate for completing the flat in all respect and also for execution of deed of conveyance, In reply of said legal notice dated 05.10.2020, the Ld Advocate of the OP1 gave reply by his letter dated 21.10.2020 and alleged that 76% work of the entire building is completed and asked the complainant’s advocate to intimate complainants to pay the balance consideration .
That same was nothing but a policy of the OP1 to squeeze further money from complainants without completing the building and providing it’s facilities. As such complainants issued a counter reply on 31.10.2020 to the letter dated 21.10.2020 through their advocate denying the allegations leveled therein and retreated that the complainants will comply their obligations in spirit of the agreement for sale and original notice given by them.
That thereafter the OP1 tried to taken back possession of flat forcibly from complainants and such event coming to knowledge of the complainants the complainants lodged a G.D. with local police.
It is fact the complainants have been suffering immensely for not completing the flat in all respect and also for not providing the building completion certificate and also for non execution of deed of conveyance also for the enhancement of market value of Flat , area Expenceses for registration also for rent incurred by the complainants for rental accommodation.
The complainants submits that the OPs are liable to compensate for harassment, mental agony and inconvenience including the amount complainants have to pay extra on account of increment of registration charges on account of the fault and latches of the OPs.
That under circumstances stated above and finding no other alternative complainants have approached to this commission seeking relief, praying an order directing the OP No1 to complete the flat in all respect and in hyabitable condition and also directing other OPs to execute the deed of conveyance unto and favour of the complainants forthwith and other reliefs as prayed for in accordance to the law. Hence the complaint.
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.
- Whether there was any unjustified delay on the part of the opposite party
- 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 flat in all respect and in habitable condition , by not executing the deed of conveyance in respect of the flat unto and in favour of the complainants with completion certificate .
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 reliefs sought by the complainants are also affirmative
The complainant has adduced evidence together with copy of documents which includes money receipt.
The OP No. 1 & 11 have contested the case by filing written version wherein opposite party No.1 has contended that complainant initiated to purchase the flat from the Op No.1 also contended that the flat was ready but the complainants were negligent in taking initiative to get registration of the flat in time.
The op No. 11 has states that the developer i.e the opposite party No. 1 is the person of a fraud and due to his utter violation of development agreement and wrongful act she also deprived of service from the developer, above all the OP No. 11 is always ready to move towards office of registration authority and registered the deed of conveyance in favour of the complainants.
Whereas the opposite party No. 2 to 10 and 12 to 14 have not entered appearance in the case.
That the complainants paid the part consideration money of Rs.8, 50,000/- of the flat but the opposite parties did not completed the flat in all respect and in time and also did not execute the deed of conveyance of the said flat , the complainants are ready to pay balance amount of consideration in accordance to the terms of the schedule of agreement.
That the complainants made several request to the OP No.1 and asked them to perform their duties and obligation as stipulated in the said agreement, however, complainants were assured by the OP No.1 that same will be done shortly but neither he completed the flat in all respect nor the deed of conveyance in respect of the said flat was executed in their favour of the complainant .
We have heard the learned counsel appearing for the complainants at some length and also perused the material available on the record. The matter was heard full on merits. Whereas Opposite Parties No. 2 to 10 and 12 to 14 were given and granted opportunity to file written version as required but no such written version or affidavit has been filed even after lapse of months on account of which no further indulgence were granted to them .
The main thrust of the arguments advanced by the learned counsel appearing for the complainants that the OP No.1 with malafide intention or deliberately by adopted unfair trade practice did not complete the flat in habitable condition and also failed to execute the deed of conveyance and all these acts amounts to deficiency in service and unfair trade practice adopted by the OP No.1 .
Having heard patiently the learned counsel of complainants , we are of the considered view that , the ops have miserably failed to provide the flat in incomplete and habitable condition and also failed to execute and registered the deed of conveyance with completion certificate .
The ops have not come forward with any strong defence to counter the allegation of the complainants, even no cogent and valid documentary evidence has been adduced by the opposite parties to substantiate the veracity of the contention of the complainant .
Only defense taken by the opposite party for delay in payment of balance consideration amount out of the total consideration money of the flat , it is needless to say that developer was to construct , complete that flat in habitable condition and after execution of the deed of conveyance registered the same in stipulated time frame as per sale agreement but they did not performed their duties properly.
At this stage , we would also like to point out regarding the unfair trade practice adopted by ops in this matter , from the letter of the ld. advocate Aloke Banerjee Date 21.10.2020 of op No .1 that he acknowledged that after lapse of almost 3 three years of Execution of Agreement from 19.06.2017 to 12.10.2020 only 75 % of construction works of building has been completed but it was stipulated that the possession of the flat to be handed over to the complainant within 18 months from the date of execution of the sale agreement.
Whereas the complainants have requested the all opposite parties through their engaged leaned advocate Mr. Aditya Prasad Sinha dt. 05.10.2020 to take necessary steps for execution and registration of the deed of conveyance of flat the flat in complete and habitable condition.
We have applied our mind and meticulously gone through the materials on record. In the written version submitted by OP No. 1 we do not find any reasonable ground and proof in support of OP No. 1 contention that the flat was ready for delivery and registration. Moreover there was no denial on the part of the OP No.1 with respect to receipt of the payment made by the complainant in terms of the agreement for sale but he admitted the receipt of advance from the complainants .
Further OP 1 by way of making submission that they have completed 75 % construction of the building of was completed made it crystal clear that the flat was not ready for delivery and there was an established fact of deficiency in service by way of making breach of contract as per the agreement for sale.
By all means we are of the opinion that non filing of evidence and assurances of making delivery and registration of flat in time and failed to do it by the Ops are clear cut proof of deficiency in service on their part.
Whereas since after passing over about 3 years from the execution the sale agreement the land owners i.e OP No. 2 to 14 did not have any barrier to execute and register the deed of sale , hence we do not find any justified reason for not executing and registering the deed of conveyance by the all Ops. Hence all ops are of deficiency in service on their part regarding registration of the flat in favour of the complainants.
The main question which falls for our consideration is as to whether there is deficiency in service on the part of the builder developer OP No.1 complete the flat and as to whether the complainant is entitled to get execute and registered a deed of conveyance with respect to the flat mentioned in the sale agreement as well as mentioned in the complaint petition filed by complainants.
It is needless to mention that without execution and registration of the deed of conveyance, the right and title of the complainants over the purchased property does not hold good title at all.
It is an admitted position that there was delay in handing over the complete and in habitable condition flat and execute and register the deed of conveyance with respect of the flat in favour of the complainants.
In our view deficiency in service on the part of OPs is/ are established. As the all OPs do no contest the case, the evidence and arguments, adduced by the complainants almost remains unchallenged and in our opinion, the complainants have successfully established their case thereby, making themselves eligible for the relief(s), sought for.
Hence it is
ORDERED
That CC No.38/2021 is allowed on contest with cost.
- All OPs are directed to execute and register the deed of conveyance with respect to the flat in complete and habitable condition mentioned in the sale agreement as well as mentioned in the complaint petition filed by complainants in favour of the complainants within 60 days from the date of this order.
- OP No.1 is directed to hand over the possession letter of the scheduled flat in complete and habitable condition within 60 days from the date of this order.
- OP No.1 is also directed to handover copy of completion certificate of the flat to the complainants.
- OP No.1 is also directed to pay compensation for harassment, mental agony and other damage of Rs.2,00,000/- to the complainant within 60 days from the date of this order.
- OP No.1 is also directed to pay Rs.15,000/- towards cost of litigation to the complainant within 60 days.
All the above payments should be made within 60 days from the date of this order.
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
