DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24-PARGANAS, JUDGES’ COURT,
ALIPORE, KOLKATA-700 027
> C.C. CASE NO.: 152 of 2008 <<
DATE OF FILING: 11.7.2008
DATE OF PASSING JUDGEMENT: 31.12.2009
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Present : President : Dipak Shyam Roy
Member(s) : Amitabha Roy Chowdhury & Sharmi Basu
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COMPLAINANT : Sri Atish Sankar Dey, s/o late Asutosh Dey of D-70,
Ramgarh, Kolkata – 47, P.S Jadavpur
- >> : versus : << -
O. P. / O. PS : M/S. NEER ASSOCIATES” D-127, Ramgarh, Kol-
47,P.S. Jadavpur represented by
1. Sri Nabarun Banerjee, Father’s name and address not Known.
2. Sri Sourav Bose, s/o R.K Bose
“Avijan Apartment” of B/108, New Raipur Road, Kol-84, P.S. Jadavpur
3. Sri Debasish Dhar, s/o not known
of E/158/1, Ramgarh, Kol-47, P.S. Jadavpur
4. Sri Avijit Ghosh, Father’s name not known
of D-127, Ramgarh, Kol-47, P.S. Jadavpur
5. Sri Narayan Tarafdar, s/o late Digendranath Tarafdar
of D-70, Ramgarh, Kol-47, P.S. Jadavpur
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>> J U D G E M E N T <<
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The complainant Sri Atish Sankar Dey of D-70, Ramgarh, P.S. Jadavpur, Kolkata – 47, filed this case against M/s Neer Associates, a partnership firm, represented by its partners, Sri Narayan Banerjee, Sri Sourav Bose, Sri Debasish Dhar and Sri Abhijit Ghosh (named as O.P- 1 to O.P-4) and Sri Narayan Tarafdar (O.P-5) on charges of deficiency in service. The gist of the complaint is that O.P-5 is the owner of a plot of land at the premises no. 87/12/221D, Raja Subodh Chandra Malick Road,Kol-47 (D-70, Ramgarh, P.S. Jadavpur, Kol-47) . The O.P-5 had entered into an agreement for development of the premises with M/s Neer Associates represented by O.P nos. 1 to 4. The developer firm had built a multi storied building on that premises and then the O>P nos. 1 to 4 had entered into an agreement for sale of a flat in that building with the complainant on 11.2.2001. Total consideration amount for the flat was Rs. 627,125/- . The complainant had paid the entire consideration amount to the developers and got possession of the flat on 24.4.2002. But the O.Ps did not deliver to him copy of completion certificate by the KMC authority and the sewerage plan of the building. O.Ps also did not execute and register the sale deed of the flat. The complainant had requested the O.Ps several times for completing their liabilities as per the agreement and lastly he had sent a legal notice on 27.5.2008, but the O.P’s refused to accept it. The O.P developers also did not deliver some other documents like copies of title deed, tax bill, building plan. Hence this complaint.
The complainant has now prayed for a direction upon the O.Ps to deliver copies of completion certificate and sewerage plan and also to execute and register the sale deed of the flat . He has also prayed for payment of compensation and costs. The O.Ps nos. 1 to 4 are partners of the developer firm M/s Neer Associates and O.P-5 is the land owner. They have stated in their written version that the complaint was not filed within two years from the date of agreement for sale, so it is time barred; and have alleged that the agreement for sale was enacted on a stamp paper of Rs.10.00 and so it needs to be stamped properly before it can be admitted as a valid document by the Forum. The O.P developers have further stated that the complainant made certain alterations in the interior arrangements of the flat. As a result, the KMC authority had refused to issue a completion certificate. Other flat owners of the building are also suffering for this conduct of the complainant. In a meeting with all the flat owners the complainant agreed to pay charges of an architect to make a revised plan. But the complainant did not pay the charges of the architect. The complainant submitted his evidence on affidavit and after the O.P nos. 1 to 5 submitted their written version belatedly, the complainant was allowed to submit a supplementary evidence. The O>P’s 1 to 5 also submitted their evidence on affidavit.
Decision of the Forum :
We have examined the documents filed by the complainant and the O.P nos. 1 to 5 . We have also examined the evidence of the parties, their cross examinations by questionnaires and replies thereof. We have also heard the argument put forward by their ld. Counsels. We have also examined the report of Ld. Engineer Commissioner appointed by the Hon’ble State Commission on the basis of the Revisional Application filed by the developers. Let us now consider whether this complaint is maintainable in this Forum. The developers (O.P nos. 1 to 4) have argued that the complaint was not filed within 2 years from the date of agreement for sale of the flat. Further the document of agreement for sale was not properly stamped. Hence this complaint is not maintainable in this Forum. But these are now settled principle of law that cause of action in such a case will continue till the terms of the agreement for sale are not fulfilled and also that the document of agreement is not necessary to be a registered document and for such non registration it is not required to be impounded. Hence, the complaint is not time barred and it is maintainable in this Forum without impounding the agreement for sale of the flat. It appears that the complainant had entered into agreement for purchasing the scheduled flat from the O.Ps on payment of consideration amount. As per agreement for sale total consideration amount was fixed at Rs. 6,27,125.00. We have verified the copies of the receipts filed by the complainant. We have found the complainant had paid to the developers Rs. 662250.00 on different dates. The developers did not deny this fact. So the complainant had paid Rs. 35,125.00 in addition to the consideration amount. There is no pleading by the developers of any extra work done in that flat. The complainant stated in evidence that he had paid Rs. 35,125.00 towards costs of registration of the sale deed of the flat.
Deficiency in service:
The complainant has alleged that the developers had delivered possession of the flat but did not deliver copy of the completion certificate from the KMC and the sewerage plan of the building. As regards the completion certificate, the developers have made a counter allegation that the complainant had made some alterations in the interior arrangements of the flat after receiving its possession. As a result the KMC authority did not agree to issue completion certificate after they found the changes from the sanctioned plan. But the developers had not submitted any documents showing that they had ever applied to the KMC for obtaining completion certificate, nor did they submit copy of any notice of inspection by KMC or any letter from the KMC authority rejecting their prayer for completion certificate. As per prayer of the developers, Hon’ble State Commission W.B had appointed one Engineer Commissioner to inspect whether there had been any alteration in the flat made by the complainant. The Ld. Commissioner stated in his report about the changes inside the flat of the complainant i.e one W.C was shifted from the Eastern side of the flat to the Northern side of the flat. Other changes reported by the ld. Commissioner are all outside the flat of the complainant viz. box projections of MS Grills made in windows, the septic tank and semi underground reservoir not being in proper place, garage space in the ground floor being covered, one rolling shutter being closed under lock and key, one entrance/exit door provided on the eastern side. The developers had argued that the complainant is responsible for the alterations made in the flat. He also stated that other flat owners of that building suffered for the act of the complainant and they are ready to depose against the complainant. Although there are certain deviations in the flat and the building premises, we cannot come to the conclusion that the complainant of his own had made any of such alterations, internal or external to his flat. But considering the nature of those internal works we cannot deny that those had been done at the instance of the complainant. We have also found that some other flat owners of that building had jointly appealed to the Ramgarh Colony Committee for taking steps against the developers for their non cooperation to complete their obligations to the flat owners, not to speak of complaining against this complainant. The developers also argued that in a meeting with the other flat owners the complainant had agreed to pay the costs for a revised plan of the building by an architect. However, they have not submitted any documents of that meeting too. We therefore, have to conclude that the complainant can be held only partially responsible for the changes made in the construction of the flat. It is obligatory on the part of the developers to submit the revised plan as may be required by the KMC and obtain the completion certificate and deliver a copy thereof to the complainant. But the costs of revised plan is to be shared by both the complainant and the developer. Similarly a copy of the sewerage plan is also necessary for the complainant and other flat owners for the future planning in respect of drainage of the premises as and when required. It is another obligation of the developers to execute and register the deed of conveyance of the flat in favour of the complainant. The developers have already realised the entire consideration money of Rs. 627,125.00 and another amount of Rs. 35,125.00 over and above the consideration money. The complainant stated that it was paid for cost of registration of the sale deed. Even then the developers failed to register the sale deed of the flat. So the developers had been rightly charged for deficiency in service by the complainant. Simultaneously the land owner O.P-5 is also responsible for non execution and registration of the sale deed since he had entered into a development agreement with the developers and had entrusted the work of construction of the building at that premises to them and also authorized them to sale the flats to the intending purchasers by a general power of attorney. Reliefs: Therefore, the prayer of the complainant is to be allowed against the O.Ps for registration of the sale deed of the flat and delivery of completion certificate and sewerage plan. But the complainant shall pay 50% of the cost of the revised plan to the developer. The complainant is also entitled to get compensation and cost of litigation. But we do not give any order for delivery of other documents as prayed by the complainant like the copies of title deed, tax bill and building plan.
Hence Ordered
That the O.Ps shall execute and register the sale deed of the flat in favour of the complainant within a month from this date of the order, failing which the developers (O.P-1 to 4) shall pay together @ Rs.100.00 per day thereafter to the complainant and the land owner (O.P-5) shall pay @ Rs.50.00 per day to the complainant till the registration is completed. The developers (O.P 1 to 4) are further directed to deliver the copies of the completion certificate and sewerage plan to the complainant within two months hence. However, the complainant shall bear 50% of the cost of preparing a revised plan for the flat by the developer. The developers (O.P-1to4) shall also pay Rs.5000.00 to the complainant as compensation for the harassment caused to him and another Rs.1000.00 as cost of litigation within one month from the date of order.
Let a copy of this order be served upon the parties free of cost.
Member Member President
Dictated and corrected by me
Member