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Sanjay Kumar Mitra & Another v/s M/s. Milennium India Construction & Others

    Complaint Case No. CC/258/2016

    Decided On, 05 November 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Mousumi Chakraborty, Mousumi Chakraborty, Advocates. For the Opp. Party: Arijit Bhattacharya, Swapnalekha Auddy, Surajit Auddy, Advocates.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of a couple/intending purchaser against a Partnership Construction Firm and its two Partners (Opposite Party Nos. 1 to 3), the Landowners (Opposite Party Nos. 4,5,7 and 8) and the State bank of India (Opposite Party No. 6) on the allegation of deficiency of services, primarily on the part of developer/builder in a dispute of housing construction.

Succinctly put, complainant’s case is that on 26.09.2012 the complainants had entered into an agreement with the Opposite Party to purchase of a self-contained flat measuring about 800 sq. ft super built up area more or less on the first floor together with undivided proportionate share or interest on the land and building lying and situated at premises No. 6/2H, Naktala Road, P.S.- Jadavpur, Kolkata- 700047, Dist- South 24 Parganas within the local limits of Ward No. 100 of Kolkata Municipal Corporation at a total consideration of Rs. 16,00,000/-. The complainants have stated that they have paid Rs. 6,50,000/- as part consideration amount towards the said total consideration amount. After 18 months they came to know that the OP Nos. 1 to 3 were not the developer of the building in question and knowing the same, the complainants immediately contacted OP No.2. By a letter dated 11.06.2003 the OP No.1 cancelled the agreement dated 26.09.2012 and asked the complainants to book a new flat. Ultimately, on 12.06.2013 an Agreement for Sale was executed amongst complainants, landowners and the developer by which the complainants agreed to purchase one flat measuring about 1100 sq. ft. super built up area on the 1st floor and one open car parking space under the roof in a building to be constructed at Premises No.237, Netaji Subhas Chandra Bose Road, P.S.- Jadavpur, Kolkata – 700047, Dist- South 24 Parganas within the local limits of Ward No.100 of Kolkata Municipal Corporation at a total consideration of Rs.18,00,000/-. The complainants have stated that besides payment of Rs.6,50,000/- on previous occasion, they have also paid another sum of Rs.10,00,000/- to the developer aggregating Rs.16,50,000/-. As per terms of the Agreement, the OP Nos. 1 to 3 were under obligation to handover the subject flat within 18 months from the date of execution of agreement for Sale. The complainants have stated that after expiry of stipulated period, time and again they have requested the developer to handover the possession of the flat in question after accepting the balance consideration amount of Rs.1,50,000/- but all the requests and persuasions including the legal notice dated 29.04.2016 went in vain. Hence, the complainants have filed the complaint with prayer for several reliefs, viz. – (a) to direct the OP Nos. 1 to 3 to complete the incomplete works inside the flat, car parking space and in the common areas of the building; (b) to direct the OPs to deliver the possession of the flat and car parking space in complete habitable condition and to execute and register the Deed of Conveyance in favour of complainants; (c) to obtain Completion Certificate from the competent authority; (d) to direct the OP Nos. 1 to 3 to pay compensation of Rs.5,00,000/- for inordinate delay in delivery of possession; (e) to direct the OPs to pay compensation of Rs.3,00,000/- for mental agony and harassment; (f) to direct the OPs to pay litigation cost of Rs.50,000/- etc.

The Opposite Party Nos. 1 to 3 i.e. the partnership firm and its partners by filing a written version have stated that the complainants were not ready to make payment the balance amount. The said OPs have also stated that due to some disputes in between themselves and landlord, they could not complete the flat within time but the construction is almost complete and as there is no deficiency in services on the part of them, the complaint should be dismissed.

The Opposite Party No.6 i.e. the State Bank of India by filing a written version have stated that they have sanctioned loan of Rs.10,00,000/- only to the complainants. However, as no relief is prayed for against them, the complaint is liable to be dismissed against them.

Despite receipt of notice, landowners did not contest.

In support of their cases, the contesting parties have tendered evidence through affidavit. They have also given reply against the questionnaires set forth by their adversaries. At the time of final hearing, OP Nos. 1 to 3 and OP No.6 have filed brief notes of arguments in support of their respective cases.

The pleadings of the parties and the evidence on record make it abundantly clear that on 26.09.2012 the complainants being intending purchaser had entered into an Agreement for Sale with the developer to purchase of a self-contained residential flat measuring about 800 sq. ft. super built up area on the 1st floor together with undivided proportionate share or interest on the land and building lying and situated at Premises No. 6/2H, Naktala Road, P.S.- Jadavpur, Kolkata- 700047, Dist- South 24 Parganas within the local limits of Ward No. 100 of Kolkata Municipal Corporation at a total consideration of Rs. 16,00,000/-. It is not in dispute that the complainants have paid Rs.6,50,000/- as part consideration amount towards the said total consideration amount. As per terms of the Agreement, the developer was under obligation to complete the flat and to handover the same to the complainants within 24 months from the date of execution of the Agreement.

Undisputedly, by a letter dated 11.06.2013, the OP No.1 construction firm cancelled the agreement dated 26.09.2012 and on 12.06.2013 the complainants had entered into an agreement with the developer (OP Nos. 1 to 3) and the landowners (OP No.4 and predecessor-in-interest of OP Nos. 5, 7 & 8) to purchase one self-contained residential flat measuring about 1100 sq. ft. super built up area on the 1st floor and one open car parking space under the roof in a building to be constructed at Premises No.237, Netaji Subhas Chandra Bose Road, P.S.- Jadavpur, Kolkata – 700047, Dist- South 24 Parganas within the local limits of Ward No.100 of Kolkata Municipal Corporation at a total consideration of Rs.18,00,000/-. The money receipt issued by OP No.1 construction firm dated 27.09.2013 speaks that they have also received Rs.10,00,000/- from the complainants as part payment towards the total consideration. Therefore, it is quite apparent that out of total consideration of Rs.18,00,000/- the complainants being intending purchasers have already paid Rs.16,50,000/- and the balance amount of Rs.1,50,000/- is liable to be paid by the complainants on the date of delivery of possession or execution of the Sale Deed.

It is trite law that the parties are bound by the terms of the agreement. In Clause-2 (inner page 6 of the Agreement for Sale) it has been specifically mentioned that the developer will handover the vacant incomplete and unencumbered flat to the purchasers within 18 months from the date of execution of the Agreement. That being so, in order to keep their promise, the developer should have handed over the flat in question to the complainants within December, 2015. However, the complainants did not keep their promise which prompted the complainants to remind the developer to fulfil their promise. However, the requests and persuasions including the legal notice dated 09.05.2016 remain unheeded.

On evaluation of materials on record, it transpires that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of OP No.1 on consideration and OP No.1 has failed to fulfil their part of obligations as per Agreement dated 12.06.2013 and thereby deficient in rendering services towards the complainants within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainants are entitled to some reliefs. In our view, a direction upon OP Nos.1 to 3 to deliver possession after obtaining Completion Certificate and to execute the Sale Deed within 60/90 days respectively on receipt of balance amount of Rs.1,50,000/- will meet the ends of justice. The fact remains that OP No.6 Bank has sanctioned loan of Rs.10,00,000/- to the complainants in order to purchase the flat but as the Title Deed not yet deposited, the Bank is charging of penal interest of 2% additionally from the date of registration. In such a situation, despite payment of almost entire consideration amount, when the complainants were deprived from having a roof of their own over their head for almost four years, certainly it caused tremendous mentally agony and harassment to the complainants for which they are entitled to compensation and considering the loss suffered by them, we assess the compensation in the form of simple interest @ 10% p.a. from committed date of possession i.e. from 01.01.2016 till the date of actual date of delivery of possession. Under compelling circumstances, the complainants have to knock the door of a Forum constituted under the Act and therefore, complainants are entitled to litigation cost which we quantify at Rs.10,000/-.

With the above discussion, we dispose of the complaint with the following directions –

i. The Opposite Party Nos.1 to 3 are directed to deliver possession of the flat and car parking space as mentioned in the Schedule ‘B’ to the Agreement for Sale dated 12.06.2013 in favour of complainants within 60 days from date

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after obtaining Completion Certificate subject to payment of balance amount of Rs.1,50,000/- by the complainants; ii. The Opposite Parties (excepting OP No.6 ) are jointly or severally directed to execute the Deed of Conveyance in respect of the property as mentioned in Schedule ‘B’ to the Agreement for Sale dated 12.06.2013 in favour of complainants within 30 days from the date of delivery of possession; iii. The Opposite Party Nos.1 to 3 are directed to pay compensation in the form of simple interest @ 10% p.a. from the committed date of possession i.e. from 01.01.2016 till the date of delivery of possession; iv. The Opposite Party Nos.1 to 3 are directed to pay Rs.10,000/- as cost of litigation to the complainants; v. The balance amount payable by the complainants, if any, shall be adjusted by OP Nos.1 to 3 out of the compensation payable by them in terms of this order. The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainants, in terms of this order.
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