Samaresh Prasad Chowdhury, Presiding Member
The instant complaint under Section 17 of the Consumer Protection Act,1986 (for brevity, ‘the Act’) is at the instance of a couple/intending purchaser against the developer (Opposite Party No. 1) and its Authorised Signatory (Opposite Patty No. 2) on the allegation of deficiency of services, primarily on the part of Opposite Party No. 1 in a dispute of housing construction.
Succinctly put, complainants’ case is that on the representation made by OPs, they have submitted an application in the company’s prescribed form on 13.02.2010 for allotment of Bungalow/Twin House/Row House in ‘Nirvana Country’ being unit bearing cluster B Row No. 04, Unit No. 08, Type 6x12, on plot size 72 sq. meters approx (775.01 sq. ft. approximately) building area of 1048 sq. ft approximately in a project christened, Kolkata West International City (KWIC) proposed to be developed on land situated at Mouza- Kona, Baltikuri, Pakuria, Bankra, Salap, Tetulkuti and Khalia in the at Salap Junction, Howrah-Amta Road and Bombay Road Crossing in the District of Howrah at a total consideration of Rs. 24,72,197/- as opting a discount of 9% payable as per payment plan A. Pursuant to registration of the said unit, complainant paid the amount of Rs. 2,60,068/- by a cheque for provisional allotment of the said unit. On 21.03.2010 they have paid a sum of Rs. 2,11,516/- towards the instalment of the said unit. Upon receipt of the said booking amounts, the company has entered into buyer’s agreement containing standard terms and conditions cum allotment agreement with the complainants. The agreement contains various terms and conditions with respect of sale and purchase of the said unit bearing No. B-04-0008. The complainants have stated that the company promised to deliver the possession of the unit within November, 2011 and on the basis of such undertaking, complainants obtained loan of Rs. 17,81,379/- and disbursed the sum in favour of OP No. 1 company and thereby have paid Rs. 22,53,586/- as part consideration amount towards the said total consideration amount of Rs. 24,72,197/- leaving a balance of Rs. 1,18,610/-. The complainants have stated that after expiry of stipulated period time and again they have requested developer to handover the possession but the OPs No. 1 delayed and neglected to handover the possession. However, by a letter dated 21.06.2013 the OP No. 1 company informed that they are willing to handover the possession on payment of balance of 5% consideration. The complainants have stated that after visiting the spot they found that neither the construction of the said unit was completed nor the said plot along with said unit was in any way fit for human habitation and as such the complainants refused to take the physical possession of the said unit until the balance works are finished by the company. The complainants have stated that there has been delay of more than 4 years on the part of OP No. 1 in handing over the possession of the unit from the date of delivery of possession. On 25.02.2015 the complainants through their Advocate sent a notice to the OPs to take action but the OPs did not pay any heed in giving reply to the same. Hence, the complainants approached this commission with prayer for following reliefs, viz.- (a) to direct the OPs to provide possession and registration of the said flat along with relevant papers alternatively to refund Rs. 22,53,586/-; (b) to pay compensation of Rs. 21,41,046/- for harassment and mental agony; (c) to pay Rs. 35,000/-as costs of litigation etc.
The Opposite Parties by filing a written version have admitted the existence of the agreement between them and the complainants and payment of Rs. 22,53,586/- by the complainants as part consideration amount out of total consideration of Rs. 24,72,197/-. The OPs have stated that by a letter dated 21.06.2013 they informed the complainants that they have received the Occupancy Certificate and also forwarded the final invoice for the said unit from the Kolkata Metropolitan Development Authority (KMDA) and that they shall handover the said unit upon payment of the amount stated in the final invoice. The OPs have stated that time and again they have requested the complainants to take the possession of the unit but on different pretexts the complainants did not take possession of the same. The Opposite Parties have stated that at all material time they acted with all bona fide to handover the project to the complainants and they are still acting with due diligence to complete the said project and to handover the same to all the respective unit allottees including the complainants. The OPs submitted that as there is no deficiency of services on the part of them, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Both the parties have relied upon several documents in support of their respective cases. However, at the time of final hearing though the complainants were represented through the Ld. Advocate yet in accordance with Regulation 13(2) of the Consumer Protection Regulations, 2005 they have not filed any brief notes of argument. However, OP Nos. 1 and 2 have filed brief notes of argument in support of their case.
The pleadings of the parties and the evidence on record clearly indicate that on 18.02.2010 the complainants applied and submitted their application to the OP No. 1 for allotment of a Row House being plot no. B/04/08 measuring about a built up area of 1048 sq. ft. in phase 1 in ‘Nirvana Country’ in a project of Kolkata West International City (OP No. 1 company) proposed to be developed on the land situated in Mouza-Kona Baltikuri, Pakuria, Bankra, Salap, Tetulkuti and Khalia in the at Salap Junction, Howrah-Amta Road and Bombay Road Crossing in the District of Howrah at a total consideration of Rs. 24,72,197/- as opting a discount of 9% payable as per payment plan A. At the time of submission of their application form for the purpose of booking of the said Row House, complainants paid a sum of Rs. 2,60,000/- by way of booking money. On 18.02.2010 the OP No. 1 company issued an allotment letter with payment schedule in favour of the complainants and allotted the said Row House in favour of the complainants, on 12.03.2010 buyer’s agreement known as standard terms and conditions cum allotment agreement was duly entered into and executed by and between the complainants on the one hand and the OP No. 1 on the other hand in respect of the Row House. It remains undisputed that in order to defray the expenses to purchase the said flat, in accordance with tripartite agreement, the complainants obtained loan from HDFC and HDFC has sanctioned loan and disbursed the amount of Rs. 17,81,339/- in favour of the company. It may be pertinent to record here that on 21.03.2010 the complainants have already paid the amount of Rs. 2,11,516/-. Therefore, the complainants have paid Rs. 22,53,586/- in total as part consideration amount towards the said total consideration amount of Rs. 24,72,197/- leaving a balance amount of Rs. 1,18,610/-.
The evidence on record speaks that the OP No. 1 company promised to deliver the possession within November, 2011. However, they could keep their promise to deliver the possession of the unit in question within the time framed. However, by a letter dated 21.06.2013 the OP No. 1 company informed the complainants that they have received the Occupancy Certificate from the KMDA on 07.06.2013 and requested the complainants to take possession of the flat subject unit. The complainants annexed the said document along with their petition of complaint appended therewith statement of account as on 21.06.2013. By the said letter the OP No. 1 company requested the complainants to take possession and to receive compensation of Rs. 25,310/- for the delay in delivery of possession as per terms of the agreement.
In the petition of complaint itself the complainants have stated that they did not take possession as the subject flat was not inhabitable condition. There were exchange of letters between the parties but ultimately the complainants without taking possession of the subject flat has lodged the complaint on 04.05.2016.
When the record was taken up for final hearing Mr. Abhik Kumar Das, Ld. Advocate for OP Nos. 1 and 2, on instruction of Mr. Sanjib Banerjee, Legal Manager of OP No. 1 company has submitted that his client without pressing clause No. 5.3 of the agreement regarding claim of holding over of the flat is agreeable to deliver possession on condition that the complainants will not claim Rs. 25,310/- entitled by them as par letter of delivery of possession dated 21.06.2013. Mr. Souvik Chatterjee, Ld. Advocate for the complainants agreed to the said proposal and prays for a direction upon the OP No. 1 company for execution of sale deed within a month from date.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record it would reveal that the OP No. 1 company as per terms of the agreement has failed to delive
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r possession within November, 2011 and issued the latter of delivery of possession about 18 months later i.e. in June, 2013 and thereby deficient in rendering services. However, the complainants have also contributed the negligence by not taking possession on receiving Rs. 25,310/-. Moreover, had there been any grievances, the complainants could have filed the complaint much earlier and to prove the shortcomings of developer, could have made a prayer for appointment of an Engineer Commissioner to ascertain the actual state of affairs. Considering all the above, the instant complaint stands disposed of with the following directions: (i) The Opposite Party No. 1 is directed to deliver possession and to execute the sale deed in respect of the flat as mentioned in schedule to the petition of complaint in favour of the complainants within 45 days from date; (ii) The Opposite Party No. 1 is directed to pay Rs. 10,000/- to the complainants as costs of litigation within 45 days from date.