Date of filing : 04/03/2021
Date of Judgement : 20/06/2024
Sri Manish Deb, Hon’ble Member
Brief facts of the case is that the OP No.1 being the owner in respect of land measuring 5 cottah 7 chittaks known by Premises No.34, Milan Park, P.S.-Patuli, Kolkata-700084 entered into a development agreement on 30.09.2013 with a developer namely ABHIJATA CONSTRUCTION COMPANY PVT LTD represented by its Director Abhijit Sen, previously having its office at 8 Keyatala Road, P.S. Lake, Kolkata-700029 and having its present office at 362 Jodhpur Park, Kolkata-700068 being the OP No.2 herein and the said development agreement was duly registered in the office of the ADSR Alipore being No.07935 for the year 2013 and the OP No.1/landowner also executed a General Power of Attorney in favour of the OP No.2.
That in Clause 6 of the said development agreement the owner’s allocation is stated to be 50% of the total sanctioned area of the total built up area being the entire first floor and the entire second floor each consisting of two numbers of flats and 50% of the covered car parking space on the ground floor together with undivided impartible share or interest in the land comprised in the said premises and right over the common area and facilities of the building.
That the OP1 declared for sale a flat out of his aforesaid allocation being the flat measuring 1500 sq.ft. on the second floor, rear side and a car parking space measuring 150 sq.ft. on the ground floor and the complainant herein upon coming to know about such declaration of the OP No.1 herein decided to purchase the same and after negotiation they entered into an agreement for sale on 30.10.2017 which was also duly registered in the office of the ADSR Alipore in Book-1, Volume No.1605-2017, Pages from 179657 to 179690 being No.160506582 for the year 2017.
That the vendor, being the OP No.1 herein agreed to sell and transfer the said flat for a total consideration of Rs.57,00,000/- only and the car parking space for Rs.3,00,000/- only and the purchaser, being the complainant herein agreed to pay the said consideration for purchasing the said flat and the car parking space. The complainant paid to the4 OP No.1 a sum of Rs.12,00,000/- only as earnest money by a cheque dated 18.09.2017 of HDFC Bank, Patuli Branch and further paid a sum of Rs.28,00,000/- (Rs.20,00,000/- +Rs.8,00,000/-) by cheque of Home Loan from UBI Garia Branch totaling a sum of Rs.40,00,000only out of total consideration of Rs.60,00,000/- only.
That the complainant on several dates visited the subject premises No.34 Milan Park, P.S. Patuli, Kolkata–700084 but found very slow progress of construction though the stipulated period of one year for completion of the purchase as per agreement has already elapsed long back. Finally in first week of February 2021, the complainant again visited premises No.34, Milan Park P S Patuli, Kolkata-700084 to see the progress of his flat but was still then totally incomplete and the flat agreed to be purchased by him is also incomplete in many aspect.
As on the date of filing of this complaint the following works are incomplete and no completion certificate has been obtained by the developer and the landowner, being the opposite parties herein:
- Electrical wiring and fittings not completed.
- Bathroom fittings and windows not completed.
- KMC sewerage connections and lines not done.
- Kitchen sink not fitted.
- Lift not installed.
- Entire ground floor incomplete
- Car parking space flooring not done
- No water connection in flat
- All doors and windows not primered or coloured
- Completion certificate not obtained for above obvious reasons.
That the OP No.1 failed and neglected to transferred the schedule below flat in complete habitable condition and car parking space to the complainant herein as a result of which the complainant is suffering severe mental agony, pain, harassment and financial loss. The complainant is paying EMI to the bank from which he took home loan but due to deficiency in service on the part of the opposite parties he is being deprived of using the flat and the car parking space from October 2018 by execution of the deed of conveyance in his favour upon payment of the balance consideration.
That the complainant repeatedly requested the OP No.1 both verbally and in writing to execute the deed of conveyance after completion of the flat and the car parking space but all went in vein. The complainant on 14.01.2021 and 20.01.2021 through his Ld Advocate sent a letter to the OP No.1/landowner asking him to inform within one month about the completion of the flat and the car parking space in complete habitable and usable condition by obtaining completion/occupancy certificate from the KMC so that he can inspect the same for his satisfaction and can take necessary steps for registration of sale deed upon paying the balance consideration but even after receipt of the said letter the OP No.1/landowner remained silent. The complainant through his Ld advocate also sent letter to the OP No.2/developer on 14/01/2021, 20/01/2021, 05/02/2021 asking him to complete the construction of the building in a complete habitable and usable condition and obtain completion/occupancy certificate from the KMC. So that he can inspect the same for his satisfaction and can take necessary steps for registration of sale deed but all went in vein.
POINTS FOR DICISION
- Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
- Whether the present complaint is within limitation under Consumer Protection Act, 2019.
- Whether the opposite parties are deficient of providing its services to the complainant
- Is the case is maintainable or not
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainants fall in the category of the ‘Consumer’ under C.P. Act 2019.
The complaint is filed 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 are deficient by not completing the said flat and could not hand over the possession of the flat and car parking space after registration with completion certificate as stated in the complaint petition.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged by the complainant.
And we consider that entitlement of getting relief(s) as sought for by the complaint is also affirmative.
As per the agreement for sale dated 30.10.2017 that the complainant went to the owners i.e. OP1 and OP No.2 and requested them to execute and register the deed of conveyance but as the OPs did not take any heed to register the deed of conveyance, the complainant gave notices through their Ld Advocate.
That the act and conduct of the OPs are not only questionable but also deplorable too and they are indulging round dealing with the complainant for reasons best known to them amounts to unfair trade practice and deficiency of service for non-executing and registering the deed of conveyance.
That the complainant submits that the OPs deliberately failed to execute and register the deed of conveyance and the complainant is entitled to get compensation of Rs.14,00,000/- only for mental agony and harassment and cost of the proceeding Rs.25,000/- only for legal proceeding.
The complainant issued several notices/letters and requested the OPs to execute the deed of conveyance after taking balance consideration money. The OPs are also failed to complete the building and registered the flat and car parking space to the complainant.
The OP No.1 & OP No.2 through their respective written version on affidavit categorically disputed the claim of the complainant and denied all the allegations of the complainant.
But the defense shield uphold by the OP No.1 and tried to bypass his responsibilities as owner and party of the sale agreement stating that the OP No.2 has been delaying in the process of construction of the building, did not take any initiative to handover the owner’s allocation from which he had to transfer the flat and car parking space to the complainant and it is a gross negligence on the part of the OP No.2/the developer.
And as per development agreement being No.07935 for the year 2013 the OP No.2 had to handover fully habitable condition, entirely vacant and peaceful possession of the owner’s allocation within 24 months from the date of execution and registration of the development agreement to the OP No.1, said time slot was before break out of Covid-19 epidemic, there was sufficient time span to complete the project. Thus the plea of non completion of building and project due to forge majoree is baseless argument on the part of the OPs.
The OP No.1 also contended that he suffered delayed construction of the project by the OP No.2, but he failed to concede the commitment of registration and handover of the possession of flat and car parking space in favour of the complainant would be within 12 months from the date of execution of the sale agreement.
OP No.1 tried to shift the burden of responsibility to make complaint to the OP No.2 regarding delaying completion and non completion of the flat and car parking space upon complainant.
Our observation is that it a vague argument on the part of the OP No.1 complainant has no liability and responsibility to take initiative for progress of construction of the building as well as flat and car parking space.
Our consideration is whether parties of the development and sale agreement has/have genuinely completed responsibilities towards complainant or not and rendered proper service or not, the delay in completion of building as per development agreement and handover the owners allocation to the owners OP No.1 is deficiency on the part of the complainant as his activities effected the total service, on the other hand the OP No.1 is deficient in rendering service towards complainant by non-deliver of possession and non registration of the flat and car parking space by OP No.1.
The OP No.1 committed default in delivery of the flat and car parking space in spite of all liabilities and responsibilities fulfilled and performed by the complainant as per terms and condition of the sale agreement and again the complainant requested to complete the building in habitable condition and transfer the flat and car parking space but the opposite parties did not bother to register the same to the complainant.
The continuous commitment and failure to handover the flat and registration of the flat and parking space till date it clearly shows the intention of the OPs , the developer and the land owner to harass the complainant and to grab the money of the complainant, failure of commitment as well as continuous failure to handover the possession which increases the mental and physical harassment to the complainant.
This commission has the jurisdiction to entertain the complainant in view of the Section 2(11) of the C.P. Act 2019.
The complainant has already paid an amount of Rs.40,00,000/- for the said plots , as per terms of the agreement the opposite parties was under obligation to complete all necessary document works of the said land/plots and will execute the sale deed and handover the possession of the plots within 12 months from the date execution of sale agreement. However, the opposite parties have failed to fulfill their obligations, promises of handing over the possession of the flat and also the registration of the said flat and car parking space within the time frame and as such the opposite parties were deficient in rending service towards the consumer i.e. complainant.
It is a settled principle of law that a buyer cannot be expected to wait indefinitely to get his plot from the developer.
However, it may be pertinent to point out that the complainants have not received the registered deed of conveyance executed and registered by the opposite parties after taking balance consideration money.
The opposite parties are entered into the complaint case and filed written version thus the commission automatically decide to fix the case hearing /argument and the complainant also filed a brief note on arguments and submitted verbally through his Ld Advocate after perusal of the complaint petition filed by the complainant and relied upon documents, complainant deposited written version and questions raised by the OPs.
In this case the complainant has vehemently argued that undisputedly, the complainant with an intention of purchase of flat and car parking space and had entered into agreement for sale with the opposite parties.
Above all, claim by the complainants remain more or less undisputed and defended by the opposite parties. In such a situation, complainants are entitled to get relief(s) , as sought for, from the commission.
Hence it is
ORDERED
- CC/126/2021 is allowed against all OPs. OP No.1 is directed to register schedule property of the sale agreement and the property mentioned in the complaint petition in favour of the complainant after receiving the balance consideration amount form complainant (if it is not yet paid) within 60 days from the date of this order.
- Opposite parties are to pay compensation of Rs.5,00,000/- to the complainant for harassment and mental agony within 60 days from the date of this order.
- Opposite parties are also directed to pay Rs.10,000/- 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.
Directed and corrected by me
Member
