The case of the complainant in brief is that he booked a flat measurement of 705 Sqft. Bearing flat No.205 at Malancha Apartment, 29/A, Mallickpara Lane, P.O.-Mallickpara, P.S.-Serampore, Dist.-Hooghly for Rs.1,00,000/- through cheque Nos.903077 and 423661 of U.B.I. According to the contract of agreement for sale, the O.P. No.1 hand over the peaceful possession of the said flat on December, 2010 but till this date possession was not given to the complainant.
The complainant paid Rs.4,00,000/- and Rs.2,09,500/- through different cheques to the O.P. No.1 in different occasion out of full consideration money of Rs.6,34,500/- and it was agreed both the parties that the rest of the amount i.e. Rs.25,000/- only would be paid at the time of the registration of the said flat.
Being aggrieved the complainant sent several notices to the O.Ps. on 3.8.2012, 12.5.2014 and lastly on 28.8.2016 but the O.Ps. did not pay any heed. Finding no other alternative the complainant filed this case before this Forum for relief with a prayer to direct the O.P. to register the above mentioned flat or to refund Rs.6,09,500/- along with interest, to pay Rs.1,00,000/- for mental agony and to pay Rs.20,000/- towards litigation cost.
The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This O.P. submits that the O.P. No.1 is a partnership firm for developing land and constructing the flat/apartment. On first February, 2009 an agreement has been made between the O.P. No.1 and the O.P. No.2 to 5 and thereafter the O.P. No.1 has constructed the building over the property as an agreement and the building formerly known as ‘Malancha Apartment’ at 29/A, Mallickpara Lane, P.O.-Mallickpara, P.S.-Serampore, Dist.-Hooghly after investment of huge amount by borrowed from the present market. The O.P. No.1 completed the construction work of the said apartment and gave possession to the petitioner as well as the land owner as per agreement and they are still residing there. But sudden fall down in market and paucity of fund the O.P. No.1 has puzzled in their present business. Further more the O.P. No.2 to 5 filed Civil Suit against the O.P. No.1 for their ulterior gain which is still pending. This O.P. No.1 further states that the petitioner has not paid agreed consideration money for the flat in dispute. Hence, this case.
The O.P. No.2 to 5 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These O.ps. stated that they entered into a development agreement with the O.P. No.1 and even registered a power of attorney in favour of the O.P. No.1, represented by Sri Balaram Nag and Smt. Piyali Nag. Being land owner these O.ps. have no role to play in the matter of construction or development or even in any matter relating in collection of taking advance from the purchaser specially after the execution of development agreement and the power of attorney. Besides that O.P. No.2 to 5 being land owners yet to get their own respective flats from the developers in accordance with the words of development agreement.
It is true that the above named O.Ps. revoked the power of the developer without finding any other alternatives because above named developers deprived the O.Ps. regarding giving possession of their respective flats. These O.Ps. tried hard to solve the dispute through several discussions but failed to get any response from them.
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant is a consumer of the opposite party?
- Whether the complainant has paid all the price of the flat to the O.P. No.1?
3. Whether the O.Ps. are liable for deficiency in service?
4. Whether the complainant is entitled to get relief as prayed for?
DECISIPON WITH REASON
All the points are taken up together for easiness of discussion of this case.
The complainant in his evidence stated that he booked a flat from O.P. No.1 and paid Rs.4,00,000/- in cheque and also paid Rs.2,09,500/- in different occasion out of full consideration money of Rs.6,34,500/- and it was agreed between them that the rest amount of Rs.25,000/- would be paid at the time of the registration of the said flat. After receiving the money the O.P. did not register the flat and being aggrieved the complainant sent legal notice to the O.P. on 3.8.2012 and 12.5.2014 but the O.Ps. did not send any reply to the complainant.
The O.P. No.1 in his evidence in chief stated that O.P. No.1 is a partnership firm for developing land and constructing the flat/apartment. On first February, 2009 an agreement has been made between the O.P. No.1 and the O.P. No.2 to 5 and thereafter the O.P. No.1 has constructed the building over the property as an agreement and the building formerly known as ‘Malancha Apartment’ at 29/A, Mallickpara Lane, P.O.-Mallickpara, P.S.-Serampore, Dist.-Hooghly after investment of huge amount by borrowed from the present market. The O.P. No.1 completed the construction work of the said apartment and gave possession to the petitioner as well as the land owner as per agreement and they are still residing there. But sudden fall down in market and paucity of fund the O.P. No.1 has puzzled in their present business. Moreover the land owner i.e. the O.P. No.2 to 5 filed Civil Suit against the O.P. No.1 for their ulterior gain which is still pending. This O.P. No.1 further states that the petitioner has not paid agreed consideration money for the flat in dispute.
The O.P. No.2, 3 & 5 in their evidence in chief stated that they entered into a development agreement with the O.P. No.1 and registered a power of attorney in favour of the O.P. No.1, represented by Sri Balaram Nag and Smt. Piyali Nag. Being land owner these O.ps. have no role to play in the matter of construction or development or even in any matter relating in collection of taking advance from the purchaser specially after the execution of development agreement and the power of attorney. Besides that O.P. No.2 to 5 being land owners yet to get their own respective flats from the developers in accordance with the words of development agreement. They also stated that being land owners they are do not know about the agreement made between the complainant and developer. So, they are not involved in the agreement which is made between the complainant and developer. The O.P. No.2, 3 & 5 stated that they revoked the power of the developer without finding any other alternative because the developer, O.P. No.1 deprived the abovenamed O.P. regarding giving possession of their respective flats and they tried hard to solve the dispute through several discussions but failed to get any response from them.
It is admitted fact that complainant booked a flat measuring 705 Sqft from the O.P. No.1, developer and for which he paid Rs.4,00,000/- which is shown in the receipt dated 24.1.2012, 3.6.2012,22.10.2011, 13.2.2011, 3.3.2010, 15.9.2010, 15.12.2009 and 2.3.2010. It is also admitted that an agreement was made between the parties i.e. Smt. Mira Banerjee & Ors., Owner & M/s. Sumit Enterprise, Developer & Sri Debasis De, Purchaser on 17.3.2010.
In the agreement at column No.3 it is written that the purchaser agreed to acquire upon purchase the ‘B’ schedule flat with proportionate undivided share of land underneath for the total consideration of Rs.6,34,500/- only @ Rs.900/- per square feet which will be paid by the purchaser to the developer in manner as follows:
- Rs.1,00,000/- only at the time of booking flat.
- 30% upon execution of agreement with in thirty days (including booking money).
- 30% of the total price after completion of roof casting of respective floor.
- 35% of the total price after completion of all civil work and inside plaster.
- Balance 5% shall be given at the time of possession and registration within 31st December, 2010.
So, it is clear from the agreement that the O.P. developer agreed to give possession to the complainant within 31st December, 2010 but in this time the O.P. No.1 did not hand over the flat in question to the complainant.
It is pertinent to note that on 18.9.2015 one petition was filed wherein both sides submitted that complainant was in possession of the schedule flat. Adoringly, there was no need for inspection. So, at this stage the case stand that complainant is in possession of the flat. The complainant paid Rs.4,00,000/- as per receipt. The price of the flat is Rs.6,34,500/-. There is no document to see that complainant has paid the remaining amount i.e. price of the flat till 100%. Complainant is in possession. The flat has not been registered by the O.P. to the complainant. So, the complainant is entitled to get registration of the flat and the O.P. No.1, developer is also legal entitled to get remaining price i.e. Rs.2,34,500/-. So, the complainant shall get the deed of conveyance registered and executed by O.P. No.1 and complainant shall give the next amount i.e. Rs.2,34,500/- to that effect as price of the flat.
From, the discussion above it is
Ordered
that the complainant’s case succeeds in part. The complainant is directed to pay remaining balance amount i.e. Rs.2,34,500/- to the O.P. No.1 and O.P. No.1 shall register the deed of conveyance after receiving the balance amount. The cost of the registration as per market price shall be borne by the complainant as per Registration Act and Rules. No other cost or compensation is allowed because complainant did not come with clean hand. Both sides are directed to comply the above order as per their convenience.
Let the copies of this order be supplied to the parties free of cost.
