State Consumer Disputes Redressal Commission
M/S Cosmopolitan Construction Pvt. ... vs Smt. Ranjana Dutta, on 18 August, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 Case No-FA/135/2010 Date Of Filing : 22.03.2010 Date Of Final Order: 18.08.2010 APPELLANT: 1. M/s Cosmopolitan Construction Pvt. Ltd. A Company incorporated under the Companies Act, 1956 having its registered office at 2 B , Grant Lane, P.S. Bowbazar, Kolkata- 700 012. RESPONDENT : 1. Smt. Ranjana Dutta, W/o Late Anup Kumar Dutta , 34 B, Maharshi Debendra Road, P.S.- Jorabagan, Kolkata- 700 006. BEFORE: HONBLE MEMBER :
Smt. Silpi Majumder.
MEMBER : Sri. Shankar Coari.
FOR THE APPELLANT : Sri Prasanta Banerjee, Advocate .
FOR THE RESPONDENT :
Sri Ashok Mukherjee, Advocate.
-ORDER-
S. Majumder, Member.
This appeal has been directed against the judgment passed by the Ld. District Forum, Kolkata-Unit-II, on 08.01.2010, in the case no-342/2005, wherein the forum below allowing the complaint on contest with cost of Rs.1000/- in favour of the Complainant payable by the OP has directed the OP to deliver the vacant possession of the remaining flat at the first floor together with two garages at the ground floor of the building as specified in the Deed of Agreement dated 26.12.1988 to the Complainant within 30 days from the date of the judgment. The Ld. Forum below has awarded compensation of Rs.10,000/- in favour of the Complainant payable by the OP on account of harassment and mental agony and the OP was further directed the amounts of cost and compensation to the Complainant within a period of 30 days from the date of the judgment, in default the total amount would carry interest @10% p.a. till entire payment.
The brief fact of the case of the Complainant is that the deceased husband of the Complainant being the land owner entered into a development agreement dated 26.12.1988 with the OP for the purpose of development of the said land by constructing a multi-storied building according to the sanctioned plan dated 19.05.1987. The terms and conditions of the said agreement are that the OP shall pay a sum of Rs.4,00,000/- and after construction of the said building within 18 months the OP shall allotted the two flats situated at the entire first floor together with two garages on the ground floor with a separate stair leading to the first floor of the proposed constructed building. It was also agreed by the parties as per terms of the agreement that remaining flats of the proposed building shall be allotted to the OP who will sell the same to the proposed purchasers, but the said transfer to the third party cannot be made till the delivery of possession of the two flats are made to the Complainant.
It is alleged by the Complainant that thereafter the OP illegally transferred the different flats to the different purchasers without completing the proposed falt allotted to the Complainant. Several correspondences took place between the parties, but to no result. Subsequently the Complainant through his advocate served a notice to the OP for delivery of the possession of the remaining flat and garage and in reply the OP denied delivering the remaining flat and garage claiming further amount beyond the contract. Thereafter finding no other alternative the Complainant filed the complaint claiming cost and compensation due to her prolonged harassment and praying for direction upon the OP to deliver the remaining flat and garage as early as possible.
Being aggrieved by the above-mentioned judgment the Appellant-OP has preferred the present appeal before this Commission contending that the Trial Forum has no jurisdiction and the same is not empower to direct the appellant to deliver the flat and garages as per the agreement dated 26.12.1988. The Appellant has mentioned in the memorandum of appeal that the Forum below has failed to consider that there is huge amount of money due from the Complainant, which she is liable to pay to the Appellant. It has been submitted by the appellant that the forum below ought to consider the fact that the Appellant has provided more space to the Complainant as per the verbal request of her than the actual space as mentioned in the Agreement. It has been further stated by the OP that the Forum has also failed to consider that as per the clause 5.1(c) of the agreement dated 26.12.1988; the appellant shall deliver the possession to the Respondent-Complainant as and when the Respondent execute the Deed of Conveyance to the intending purchasers.
According to the appellant the judgment passed by the Forum below is not liable to be sustained and which should be set aside and the appellant has prayed for allowing the present appeal.
Before the Forum below it was mentioned by the OP in its written version that as per terms and conditions of the agreement the OP paid a sum of Rs.4,00,000/- to the Complainant and after completion of the construction of the flat one of the flat at first floor was also delivered to her. The OP that the Complainant refused to execute and register the Deed of Conveyance in favour of the purchasers of the flats allotted to them from the developers allocation have alleged it. The OP has further mentioned that the Complainant has failed to pay the maintenance charges of the flat although she is in possession and occupation of one of the flat at the proposed building. Despite repeated requests through letters the Complainant did not agree to comply with the terms of the contract. It was also stated by the OP that he is ready and willing to deliver the possession of the remaining flat and the garage subject to payment of Rs.56,306/- due to extra work done by the OP as per request of the Complainant, so according to the OP there was no deficiency in service on its part and hence it prayed for dismissal of the complaint.
For proper adjudication of this appeal the LCR has been called for. We have carefully perused the record, documents, LCR and after hearing the arguments as advanced by the parties before this Commission it is seen by us that admittedly there was a development agreement by and between the Complainant and the OP and as per the terms and conditions of the said agreement the complainant was entitled to get a sum of Rs.4,00,000/- along with two flats at the first floor and two garages at the ground floor of the said building from the OP. It is an admitted fact that the OP paid a sum of Rs.4,00,000/- to the Complainant and handed over one flat at the first floor and one garage at the ground floor at the said building, but did not hand over one flat at the first floor and one garage at the ground floor to the Complainant. The contention of the Complainant is that as per the agreement the OP was liable to deliver her the entire allocation as per agreement and thereafter the OP was entitled for selling out the flats to the buyers from its allocation, but without delivering the remaining flat and garage to her, the OP violating the agreement has delivered the flats to the intending purchasers, which the OP cannot do and in this was she faced harassment and mental agony. On the other the contention of the OP is that as per the agreement the land-owner was liable to execute and register the deed of conveyance in favour of the buyers, thereafter the Complainant was entitled to get the remaining flat and the garage. Further contention of the OP is that though the Complainant is in possession since long period, but did not bother to pay any maintenance charge and though as per verbal request extra work was done for which the Complainant is under obligation to pay the cost for the extra works, but the Complainant did not bother to pay any amount. Though several correspondences were made on the behalf of the OP to take possession at the remaining flat and the garage against payment of the cost of the extra work, but the complainant neither made any correspondences with the OP nor took any positive step and with an intention to avoid payment the Complainant filed the complaint before the Forum below with mal-intention.
We have carefully perused the Development Agreement which was signed by and between the Complainant and the OP in 26.12.1988, wherein it is stated at the page no-13 of the Agreement under the Article-V and in the Clause of 5.1 (c) wherein it is stated that The transfer of the first floor and the two garages on the ground floor with the stair shall be made be the developer to the owner after the owner had executed conveyance or conveyances in respect of the other flats, garages, open spaces and undivided interest in the land in proportion to the area of the flats and garages with the common rights are conveyed by the owner to those purchasers. In the page-14 of the said agreement under the Clause no-5.1 (i) that not to deliver possession of any flat or portion of the new building to be constructed on the said plot of land to any buyer or lessee before delivering possession of the first floor flat and two garages with stair to the owner. In respect of the said two sub-clauses we are of the view that the two sub-clauses are totally contradictory. During hearing the Ld. Counsel for the Respondent has submitted that the later will prevail, but in respect of such argument we are to say that in the one and same agreement contradictory clauses has been taken and both parties have agreed with the said clause and sub-clause, so there is no question of prior and later. As the prior sub-clause has not been set aside or amended, the prior and later both are prevailing in the agreement and as the parties accepting the agreement put their signature, they are under compulsion to abide by the terms and conditions of the said agreement inspite of such contradictions. In our opinion both the two clauses are remaining in force, nothing has been set aside. The OP has stated that until and unless a sum of Rs.56,306/- is paid by the Complainant to the OP due to extra work, the complainant is not entitled to get the remaining flat and the garage and moreover the Complainant is under obligation to execute and register the deed of conveyance in favour of the flat purchasers. Though the OP claimed the above-mentioned amount towards extra work, but the OP could not produce any cogent evidence in support of its contention, hence the Forum below has rightly did not allow the arbitrary claim of the OP. In respect of payment of maintenance charge by the Complainant, we are of the view that as the Complainant is in possession of one flat and garage since 1990, she is liable to pay maintenance charge of the said premises/building. Though the Ld. Forum below has directed the OP to deliver the remaining flat and garage to the Complainant, but has failed to direct the Complainant to execute and register the deed of Conveyance in favour of the purchasers as per the terms of the agreement. Though the Complainant has mentioned in her complaint that several correspondences were made with the OP, but to effect, but the Complainant has failed to produce any scrap of document regarding correspondences, on the contrary we have noticed that the OP issued several letters upon the Complainant requesting him/her to take possession of the remaining flat and garage subject to payment of the cost of the extra work, but the Complainant did not bother to reply. In our considered view that as per the terms and conditions of the agreement both parties are liable to discharge their specific obligations and both of them has failed in this context. So we are inclined to direct the OP to deliver the possession of the remaining flat and garage to the Complainant and to direct the Complainant to execute and register the deed of conveyance in favour of the purchasers. The OP is not entitled any claim towards extra work, as it has failed to prove the same by adducing relevant documents and papers in support of its contention.
In view of the foregoing discussion hence it is ordered that the appeal is allowed in part on contest without any cost and the judgment passed by the Forum below is hereby modified to the above extent. The OP shall deliver the possession of the remaining flat and the garage to the Complainant within 45 days from the date of passing of this judgment and the Complainant shall execute and register the deed of conveyance in favour of the flat purchasers within a period of 30 days from the date of delivering the possession of the remaining flat and garage by the OP. As the Complainant has also failed to discharge her liability as per the Agreement and there was also deficiency in service on her part in respect of non-execution and registration of the deed of conveyance in favour of the purchasers, the Complainant is not entitled to get any compensation as awarded by the Forum below, but regarding payment of cost of Rs.1000/- to the Complainant payable by the OP will remain unaltered and award of compensation is set aside. If any party fails to comply with the abovementioned order, the other party is at liberty to put the decree into execution in accordance with Law. The office is directed to send down the LCR to the Forum below along with a copy of this judgment forthwith.
Sri. Shankar Coari.
Smt. Silpi Majumder.
(Member) (Member)