FINAL ORDER/JUDGEMENT
Smt. Sahana Ahmed Basu, Member.
The instant complaint under Section 12 read with section 13 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of intending purchasers against the landowner (Opposite Party No.1) and the Developer/builder represented by its partners (Opposite Party No.2) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Succinctly put, complainants’ case is that on 07.01.2011 they entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 900 sq. ft super built up area on the 1st floor and a car parking space of 100 sq. ft. on the ground floor lying and situated at Premises No.356, Nayabad, P.S.-Kasba (now P.S.- Purba Jadavpur), Kolkata- 700099, Dist- South 24 Parganas at a total consideration of Rs.14,00,000/-. The complainants have stated that they have already paid the entire consideration amount to the Opposite Parties and the Opposite Parties, delivered possession of the flat to them. However, it is alleged by the complainants that the opposite parties have failed to provide demarcated car parking space and also to provide Completion Certificate and in this regard, all the persuasions and requests went in vain. Hence, the complaint with prayer for direction upon the opposite parties to complete the construction in all respects, to obtain Completion Certificate from the Corporation, to execute and register the Deed of Conveyance of the flat with a duly marked car parking space, to pay compensation of Rs.5,00,000/- and litigation cost of Rs.50,000/- etc.
Despite service of notice, the Opposite Parties neither have appeared nor filed written version. Under compulsion, the complaint is heard ex-parte.
Now, in the background of these facts, the question which falls for consideration in this case whether the OPs are deficient to rendering services to the complainants. In support of complaint, one Sri Subhadip Roy, constituted Attorney of the complainants has tendered evidence on affidavit. Besides evidence on affidavit, complainants have also filed several documents including Agreement for Sale dated 07.01.2011.
The contents of petition of complaint and the unchallenged testimony of Constituted Attorney of the complainants coupled with the Agreement for Sale and other documents annexed with the petition of complaint indicates that on 07.01.2011 the complainants had entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 900 sq. ft super built up area on the 1st floor and a car parking space on the ground floor lying and situated at Premises No.356, Nayabad, P.S.- Kasba (now P.S.- PurbaJadavpur), Kolkata – 700099, Dist- South 24 Parganas at a total consideration of Rs.14,00,000.
On perusal of petition of complaint, it appears that one Sri SubahmoySaha has been impleaded as OP No.1 categorised him as landowner but in the registered Agreement for Sale the name of Sri SudhamoySaha appears as landowner.
In the petition of complaint, it has not been spell out when the possession of the flat have been handed over to the complainants. The complainants have also not filed any possession letter in support of their possession in respect of the subject flat.
In Schedule ‘B’ to the Agreement for Sale, the figure 100 sq. ft. has been inserted through pen through before the words ‘one car parking space’ but the said correction/rectification does not contain any initial or signature of any of the person i.e. executants or witnesses or the Registrar before whom the Agreement for Sale was registered.
It is also perused by us that the this suit is dismissed by the Hon’ble SCDRC on 20.08.2018 on the ground -
“The Agreement for Sale as well as petition of complaint indicates that the value of the subject flat was Rs.14,00,000/-. However, the complainants have shown the valuation of Rs.22,00,000/- claiming compensation of Rs.8,00,000/-. Nowhere in the petition of complaint, the complainants haveshown how they have calculated the valuation of the property. In other words, the complainants did not make any valuation statement in the petition of complaint. Under the scheme of the Act, the complaint can be filed in the District Forum or the State Commission or the National Commission depending upon the value of the costs of the goods/services. Section 11, Section 17 and Section 21 provides the pecuniary jurisdiction of the respective Fora. Section 11 provides that a District Forum shall have the jurisdiction to entertain the complaints where value of the goods or services and compensation, if any, does not exceed rupees twenty lakhs. According to Section 17, State Commission can entertain the complaints where the value of goods or services and compensation claimed exceeds rupees twenty lakhs but does not exceed rupees one crore.”
It was also directed by the Hon’ble SCDRC that :
“However, complainants shall have liberty to lodge a complaint in the appropriate Forum in accordance with law. If any complaint is lodged in respect of same cause of action, complainants may seek assistance of the decision reported in (1995) 3 SCC 583 ( Laxmi Engineering Works – vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation.”
In view of the above facts , as the OPs did not turn up to contest their case after receiving the notice , we have to rely upon the evidences furnished by the complainants. In the Agreement for Sale it is clearly mentioned that at the time of possession of Flat OR Registration whichever earlier total consideration should be paid. Copy of the money receipts furnished by the complainant it is found by us that the complainant has paid the entire consideration amount of the said Flat on the dates mentioned below-
Rs. 50000 on 13.12 2010 ,
Rs. 4,50,000 on 07.01.11,
Rs.2,50,0000 + Rs. 200 on 28.02.11 ,
Rs. 5,000,00 on 12.03.11 ,
Rs. 1,000,00 on 24.09.11 ,
Rs. 1,000,000 on 02.06.12 ,
Rs. 1, 50,000 on 09.07.12
Rs. 50,000 on 30.03.2013 .
After that both the parties correspondent with each other regarding the dispute through several emails and letters. It appears from those corresponding letters between the parties that the flat was handed over to the complainants one year before the full payment of total consideration amount as mentioned in the letter dated 09.08.2018 sent by the OPs to the complainants. The complainants alleged that OPs have failed to appear on the scheduled appointment dates. In reply to the allegations made by the complainant the OPs wrote a letter to the complainants on 09. 08. 13 requesting them to arrange for registration of the Deed of Conveyance. The letters written on 25.08.2013 and 21.09.2013 are bearing the same request. But Ops remained silent about completion certificate. Although the complainants requested them repeatedly to sent the sanctioned plan of the car parking area along with Completion Certificate. Only the copy of the Deed of Conveyance and the copy of the market value assessment slip were send by the OPs to the complainant .The complainant alleged in the letter dated 28.11.2013 that the OPs have purported draft deed of conveyance and also the alleged sketch map and have drafted/prepared the ‘B’ schedule property of the said draft deed at their own whims and malafide purpose. As the OPs did not turn up to controvert the allegations made by the complainant we have to rely the allegation of the complainants. In this letter they again requested the OPs to hand over the COMPLITION CERTIFICATE. It is also mentioned by the complainants that the premises is not fully complete in every respect. This allegation also remained unanswered by the OPs. This gesture of the OPs appeared before us as negligence and surely deficiency in service.
As such, we are of the opinion that the complainants are entitled to get following relief -
The OPs are jointly and severally directed to pay Rs.50,000/- as compensation for the harassment and also to pay Rs.10,000/- as litigation cost to the complainants within the 30 days from the date of this order
Ops. are jointly and severally directed to execute and register the Deed of Conveyance of the subject flat including marked car parking space in favor of the complainants and also to give the completion certificate of the building to the complainants within stipulated period.
Liberty be given to the complainants to put the case, in execution, if the OPs failed to comply the order.
