Order-10.
Date-14/03/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Case of the complainant, in short, is that OP1 is that developer and OPs 2 to 4 are the landlords of the property lying and situated at 83/1, Banerjee Para Lane, K.M.C., Ward No.91, P.S. Kasba. OPs 2 to 4 entered into a development agreement with OP1 on 23-07-2016 for development on a two storied building at the said premises. The complainant, thereafter, entered into an agreement for sale with the OPs for purchasing the entire ground floor of the said scheduled premises consisting of 600 sq. ft. super built up area for a total consideration of Rs.10 lakhs on 21-03-2011. The complainant also paid a major amount (the total amount not mentioned in the petition) as part consideration to OP1. The complainant obtained bank loan from SBI as per Bank rules that last instalment of the said loan will be disbursed only at the time of registration i.e. receipt of the original IGR issued by the Registry Office. The last instalment of Rs.2 lakhs is pending from the complainant and that would be handed over by OP1 on the date of registration of the said flat. Complainant handed over the possession of the said flat. The complainant was surprised to see that instead of 600 sq. ft. super built up area he was handed over only 401.53 sq. ft. super built up area. The complainant, thereafter, requested OP1 for registration of the said flat but OP1 has deferred the said registration process. It is also alleged that OP1 has provided the complainant with inferior quality of work. It is also alleged that electrical materials were also of inferior quality and the complainant had to spend Rs.38,000/- from his own pocket as such. It is also stated that due to non-registration of the premises, complainant is unable to clear the municipal taxes. It is alleged that OP is practicing unfair trade practice by not registering the said flat and also liable for deficiency of service. Hence, this case.
OP1 has filed written version in this case contending, inter alia, that the complaint is not maintainable in law as well as in fact. It is stated that this OP is the developer and OPs 2 to 4 are owners of the land on which a new building is erected being the premises no.83/1, Banerjee Para Lane, P.S. Kasba, Kolkata – 700 091. It is true that according to sanctioned building plan a new two-storied building is built thereon. It is true that an agreement was entered between the parties on 22-03-2011 in respect of the entire ground floor of the said premises at a total consideration of Rs.10 lakhs. It is stated that this OP has no personal knowledge that the bank will pay Rs.2 lakhs at the time of registration. It is stated that the complainant was put into possession of the flat long ago sometime in 2014. It is denied that the complainant was handed over the super built up area of 401.53 sq. ft. as alleged. This OP has stated that developer is always ready to help in registration of the said ground floor but the complainant is raising dispute on various grounds. It is also stated that OPs 2 to 4 have executed an unregistered General Power of Attorney empowering this OP to erect and construct a new building and in absence of registered General Power of Attorney, this OP again cannot alone execute Deed of Conveyance. It is stated that this OP is always ready and willing to execute the Deed of Conveyance. It is stated that no supporting bill of Rs.38,000/- is filed before this Forum to show extra expenses. This OP has denied deficiency of service. This OP has prayed for dismissal of the case.
OPs 2 to 4 have not contested the case and the case has proceeded ex parte against the OPs.
Point for Decision
- Whether OPs are deficient in rendering service to the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record, i.e. Xerox copy of agreement dated 23-07-2006 between the parties, Xerox copy of agreement dated 21-03-2011 between the parties, Xerox copies of payment receipts of different dates and other documents on record.
It appears that the OP1 is the developer and OPs2 to 4 are the landlords of the property lying and situated at 83/1, Banerjee Para Lane, K.M.C. Ward No.91, P.S. Kasba. We also find that OPs 2 and 4 entered into a development agreement with OP1 on 23-07-2016 for development of a two-storied building at the said premises. We also find that the said development was also carried out vide sanctioned plan being No.061 dated 26-05-2010. The complainant, thereafter, as we find entered into an agreement for sale with OPs for purchasing the entire ground floor of the said scheduled premises consisting of 600 sq. ft. super built up area for a total consideration of Rs.10 lakhs on 21-03-2011. We also find that complainant also handed over the possession of the said scheduled flat. The complainant has alleged that instead of 600 sq. ft. super built up area as agreed upon he has been handed over 401.53 sq. ft. super built up area of the said scheduled flat, but we find that complainant has not sought for any survey passed commissioner to measure the area of the subject flat. It has transpired from the sanctioned plan of the building that the cover area of the ground floor in question is 401.53 meter and if the same is converted into sq. ft. it come to 493 sq. ft. and if 20 percent area is added to make it super built up area it comes to super built up area of 582 sq. ft. and if 25 percent area is added to make it super built up area it comes to super built up area of 616 sq. ft. So, we think that complainant is to prove how he arrived at such figure of super built up area of 401.53 sq. ft. Moreover, complainant has not taken any pain to measure the area of the subject flat for the reason best known to the complainant. We also find that not a single scrap of paper is filed in support of allegations of the inferior quality of building and electrical materials. Complainant has also failed to file any document of additional expenses. No supporting bill of Rs.38,000/- is filed before us to show extra expenses beyond the agreement. The fact remains that the OPs have failed and neglected to execute any Deed of Conveyance in favour of the complainant in terms of the agreement dated 22-03-2011. We think that OPs have been deficient in rendering service to the complainant in this regard. We think that OPs must execute Deed of Conveyance in favour of the complainant forthwith.
In result, the case merits success in part.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP1 and ex parte against the OPs 2 to 4.
OPs are jointly and severally directed to execute the Deed of Conveyance in favour of the complainant in respect of the scheduled flat in question as per agreement before the appropriate registering authority having jurisdiction in consonance with the agreement for sale dated 21-03-2011 within one month from the date of this order when entire balance amount has to be paid by the complainant to the OP1 developer.
If the OPs fail to execute the sale deed by registering it within the stipulated period in that case complainant shall have to file an application before this Forum for getting execution and registration of the sale deed by this Forum and for this purpose complainant shall have to bear all costs and service charges, execution and registration charges of the sale deed and also pay the charges for deputing an officer on behalf of this Forum for execution and registration of the sale deed on behalf of the OPs.
OPs are further directed to pay Rs.10,000/- as compensation for harassment and mental agony to the complainant along with litigation cost of Rs.5,000/- each( i.e. total Rs.20,000/-) within the stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
