State Consumer Disputes Redressal Commission
Sri Dipankar Das vs Sri Kartick Mondal on 10 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/17/2015 ( Date of Filing : 19 Jan 2015 ) 1. Sri Dipankar Das S/o Lt. Purna Chandra Das, 1/2D/4, Ramkrishna Naskar Lane, P.S. Beliaghata, Kolkata - 700 010. 2. Smt. Sima Das W/o Sri Dipankar Das, 1/2D/4, Ramkrishna Naskar Lane, P.S. Beliaghata, Kolkata - 700 010. ...........Complainant(s) Versus 1. Sri Kartick Mondal S/o Sri Monoranjan Mondal, 53C/1, Dr. Suresh Chandra Banerjee Road, Kolkata -700 010, P.S. Beleghata. 2. Sri Monoranjan Mondal S/o Lt. Gour Chand Mondal, 53C/1, Dr. Suresh Chandra Banerjee Road, Kolkata -700 010, P.S. Beleghata. 3. Smt. Anita Mondal W/o Sri Monoranjan Mondal, 53C/1, Dr. Suresh Chandra Banerjee Road, Kolkata -700 010, P.S. Beleghata. 4. Sri Pradip Sapui S/o Sri Mohan Lal Sapui, Sole Prop., M/s. Puja Constructions, 1/1B/1, Ramkrishna Naskar Lane, Kolkata - 700 010, P.S. Beliaghata. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Mrinmoy Sardar, Advocate For the Opp. Party: Mr. Prabir Basu, Advocate Dated : 10 Aug 2018 Final Order / Judgement The instant complaint U/s. 17 (inadvertently mentioned U/s.12) of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") is at the instance of a couple/ intending purchasers against the land owners (Opposite Party Nos.1 to 3) and the Developer / Builder (Opposite Party No.4) on the allegation of deficiency in services on the part of OPs in a dispute of housing construction with prayer for certain reliefs.
In a nutshell, Complainants' case is that on 25.10.2010 they had entered into an agreement with the OPs to purchase of a self-contained flat measuring about 1180 sq. ft. on the2nd floor along with one covered car parking space measuring about 140 sq. ft. on the ground floor of the building together with common areas and facilities of the building/land lying and situated at of Premises No.1/2D/4, Ramkrishna Naskar Lane, P. S. - Beliaghata, Kolkata - 700010, District - South 24 Parganas within the local limits of Ward No.33 of Kolkata Municipal Corporation at a total consideration of Rs.37,90,000/-. The complainant have stated that they have already paid Rs. 34,50,000/- as part consideration amount towards the said consideration amount. In the agreement, it was stipulated that the OPs especially the developer/OP No.4 would complete the construction of whole building within a period of 18 months from the date of execution of the said agreement for sale but the OP on pretext or the other continue the project many year to complete and finally the complainants who took bank loan to purchase the property had to take possession of the same in an incomplete condition. It was agreed that in case of delay without any valid reason, the developer/OP N o.4 shall be liable to pay compensation @ 10% of the consideration amount. The complainants have stated that after taking possession in or about June, 2012 the complainants became quite shocked to find that there is severe shortfall in various common facilities and amenities like - lift, boundary wall, stair case, window panes, exterior painting, parking space and Completion Certificate etc. On 15.07.2014 the complainants sent a registered letter through Speed Post to the OPs requesting them to complete construction building as per sanctioned building plan by obtaining Completion Certificate and also to execute and register the deed of conveyance with respect to the property but the OPs did not respond anything to that letter. The complainants have alleged that the OPs have failed to deliver and earmarked space in the ground floor for the parking space of a four wheeler which they are entitled as per terms of the agreement for sale. The complainants have also alleged that the OP No.4 has violated the sanctioned building plan and thereby occupied almost half of the ground floor space by constructing illegal structures which was otherwise earmarked for pump room, security room, parking space etc. Hence, the complaint with prayer for following reliefs, viz.- (a) for a direction upon OP No.4 for refund of RS. 50,000/- which the OP No.4 has collected from the complainant on 06.05.2011; (b) for specific demarcation of parking space; (c) for execution and registration of deed of conveyance; (d) for providing a copy of Completion Certificate; (e) Compensation of RS. 10,00,000/- for harassment and mental agony; (f) Rs. 1,00,000/- towards litigation cost etc. The Opposite Party Nos. 1 to 3/ Landowners by filing a written version have stated that the complainants in spite of their dues for payment of total consideration had forcibly entered into the subject flat way back in the year 2012 without any valid possession letter either from OP No.1 to 3 or OP No.4 and enjoying the said flat and parking their car on the ground floor and after lapse of three years has lodged the complaint to harass the OPs for illegal gains. The OP Nos. 1 to 3 have submitted that total consideration amount having not paid, the complainant cannot ask for execution and registration of deed of conveyance in terms of agreement for sale and then question of deficiency in service does not stand.
The Opposite Party No.4/developer by filing a separate written version has stated that due to pendency of a Civil Suit being T.S. No.48 of 2008 by one Biman Sen and Others against the landowners there has been a delay of more than one year for which the developer cannot be held responsible. The OP No.4 did not deny the payment of Rs.37,40,000/- by the complainants and also admitted that he collected Rs. 50,000/- from each of the purchaser of flat with an assurance that at the time of execution and registration of deed of conveyance he will pay the balance amount to the purchaser. The OP No.4 has stated that he has already provided demarcated allotment on the ground floor to the complainant as car parking space and has already taken steps for obtaining Completion Certificate. The OP No.4 has submitted that the complainants have lodged the complaint with unclean hands for which it should be dismissed.
The complainants, opposite party nos. 1 to 3 and opposite party no. 4 have tendered evidence through affidavit. At the time of final hearing, on behalf of complainants a brief note of argument has been filed.
Undisputedly, opposite party nos. 1 to 3 are the owners of a piece of land measuring about more or less 5 cottahs out of the land measuring 1 bigha 10 cottahs lying and situated at Premises No. 1/2D/4, Ram Krishna Naskar Lane, P.S.- Beliaghata, Kolkata 70010, Dist.- South 24 Parganas within the local limits of Ward No. 33 of Kolkata Municipal Corporation. On 27.02.2007 the opposite party no. 3 had entered into a development agreement with opposite party no. 4/developer for the purpose of raising a G+4 storied building thereon. It was agreed that opposite party no. 4 shall construct the building in accordance with the sanctioned plan obtained from the Kolkata Municipal Corporation. Be it mentioned here that the building sanction plan has been accorded by the Kolkata Municipal Corporation on 24.07.2007.
The evidence on record indicates on 25.10.2010 the opposite party no. 4 as developer and also the opposite party nos. 1 to 3 as landowners had entered into an agreement for sale with the complainants to sell a self-contained flat measuring about 1180 sq. ft. super built-up area on the 2nd Floor at Block-B along with a garage space measuring about 140 sq. ft. with other common areas and facilities at Premises No. 1/2D/4, Ram Krishna Naskar Lane, P.S.- Beliaghata, Kolkata 70010, Dist.- South 24 Parganas within the local limits of Ward No. 33 of Kolkata Municipal Corporation at a total consideration of Rs. 37,40,000/- out of which Rs. 35,40,000/- was consideration for the flat and the balance amount of Rs. 2,00,000/- is the consideration of garage space.
The Clause 16 of the Agreement for Sale stipulates possession. According to the agreement, the developer (opposite party no. 4) shall construct and complete the total construction of the building within eighteen months from the date of execution of the agreement subject to Force Majeure. In the event of delay, cost without any valid reason, the developer shall be liable to pay compensation to the purchaser 10% of the consideration amount per month. It was also stipulated that the construction shall be done as per Sixth Schedule and opposite party no. 4 shall be responsible to that effect and owners will have no responsibility.
Evidently, in or about June, 2012 the complainants took possession of the subject flat without payment of entire consideration amount. Out of the total consideration amount of Rs. 37,90,000/- the complainants have paid Rs. 34,50,000/- as part consideration amount. Therefore, the complainants are still due and payable of Rs. 3,40,000/- to opposite party no. 4.
Mr. Prabir Basu, Ld. Advocate for the opposite party no. 4 has submitted that when without payment of entire consideration amount the complainants had taken possession and postponed payment without any reason, the opposite parties cannot be held deficient in rendering services. To fortify his submission, Ld. Advocate for the opposite party no. 4/developer has drawn my attention to a decision reported in 2015 (2) CRP 190 (NC) [Rakhee Raya Borkar Alias & Anr. - vs. - Kishan Maruti Savant] where it has been held that when complainant failed to perform his contractual obligation of making payment of balance amount and postponing payment on wholly untenable grounds, the petitioners entitled in law not to perform his part of contract and deny possession of flat.
Considering the facts and circumstances, before taking possession, the complainants should have pay the balance amount in favour of opposite party no.1 by way of Demand Draft etc. or even after lodging the complaint, the complainants could have deposited the balance amount in the Commission to show their bonafide. However, the referred decision will have no manner of application in our case because the complainants have paid almost entire consideration amount and had already taken possession after the stipulated period as per terms of the agreement.
The complainants have alleged that the developer was duty bound to provide electricity connection to them for which a sum of Rs. 50,000/- was paid to opposite party no. 4 to provide a separate electric meter but in spite of receiving the said amount the opposite party no. 4 did not install the electricity meter and for which the complainants were compelled to pay further sum of Rs. 15,000/- to the CESC Ltd. for obtaining connection in their favour. The opposite party no. 4 did not deny the factum of receiving Rs. 50,000/- on account of electric connection. Therefore, the opposite party no. 4 must refund the said amount of Rs. 50,000/- to the complainants.
The complainants have specifically alleged that after taking possession they found that some basic facilities and amenities were lacking in the schedule premises, viz.- (a) lift, (b) boundary wall, (c) staircase window panes, (d) RCC overhead reservoir, (e) exterior painting, (f) cleaning of common pathway, (g) deliver of meter room and garbage room etc. However, the complainants have admitted that during the pendency of the case, the opposite party no. 4/developer has completed - (a) staircase window panes, (b) overhead tank and also paid arrear municipal taxes and cleared the pathways and fixed the lift.
However, the demarcated parking space has not been provided and copy of Completion Certificate has not yet been handed over to the complainants. After acceptance of consideration amount, it is bounden duty on the part of developer/builder - (i) to deliver possession; (ii) to execute the Sale Deed and (iii) to obtain Completion Certificate from the competent authority and to hand over an authenticate copy of the same to the purchaser in order to enable the purchaser/buyer to mutate his name in the Assessment Register of the Corporation. In the case before hand, the opposite party no. 4 has applied for Completion Certificate in accordance with Section 403 of K.M.C. Act, 1980 but there is no clear assurance as to when the said certificate will be available. Needless to say, the opposite parties are bound to execute the Sale Deed in favour of the complainants after receiving the balance consideration amount as per terms of agreement for sale.
Considering the entire materials on record and having heard the Ld. Advocates appearing for the complainants as well as opposite party no. 4, it appears to me that the complainants being intending purchasers hired the services on consideration but the opposite parties were found deficient in handing over the possession within the period as per terms of the agreement. In this regard, the plea of the opposite party no. 4 regarding pendency of one suit being T.S. No. 48 of 2018 before the Ld. Civil Judge at Sealdah, which was decreed on compromise on 28.07.2009 will not alter the situation because an inter-se dispute between the landowners or the developer cannot be used as a ploy to wriggle out the obligations under the contract and to put the buyer in lurch. Therefore, the opposite parties must be held responsible for the delay in handing over the possession of the subject flat and found deficient in rendering services under Section 2(1)(g) read with Section 2(1)(o) of the Act.
In that view of the matter, the complainants are entitled to some reliefs. In my view, an order directing the opposite parties to execute and register the Sale Deed after receipt of balance consideration amount, to provide a specific demarcation of parking space and to provide an authentic copy of Completion Certificate within three (3) months from the date will meet the ends of justice. Besides the same, the complainants are entitled to refund of Rs. 50,000/- which opposite party no. 4 has collected from the complainants on 06.05.2011 on account of installation of electric meter. Considering the facts and circumstances, when it appears that the complainants are in possession of the flat without payment of balance amount of Rs. 3,40,000/-, I do not consider it a fit case to award compensation. However, as there were several infirmities on the part of opposite parties which compelled the complainants to lodge the complaint, the complainants are entitled to litigation cost which I quantify at Rs. 10,000/-.
In view of the above, I dispose of the complaint with the following directions:
The opposite parties are jointly and severally directed to execute and register Deed of Conveyance in respect of the property as mentioned in Second Schedule to the Agreement for Sale dated 25.10.2010 in favour of Complainants subject to payment of Rs. 3,40,000/- by the Complainants in favour of Opposite Party no. 4; The Opposite Parties are jointly and severally directed to obtain Completion Certificate and to hand over an authentic copy of the same to the Complainants;
The Opposite Party no. 4 is directed to provide the specific demarcated car parking space of 140 sq. ft. to the Complainants;
The Oppoiste Party no. 4 is directed to refund Rs. 50,000/- to the Complainants which he collected for installation of Electric Meter;
The Opposite Party no. 4 is directed to pay Rs. 10,000/- to the Complainants as costs of litigation;
All the above directions must be complied with by the parties within ninety (90) days from date.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER