HON’BLE PRESIDENT ISHAN CHANDRA DAS, PRESIDENT
Assailing the judgment and order dated 17-04-2017 passed by Ld. DCDRF, 24-Parganas (South) at Baruipur in CC/240/2015, the present appeal has been preferred by the OPs no. 1 to 6 of the said complaint case, where Ld. Forum concerned while disposing of the CC/240/2015 allowed the same on contest with costs, directed the OP no. 3 to complete the flat in dispute in all respects, hand over the same in a habitable condition within one month from the date of the order in default to refund the entire consideration of Rs. 9,00,000/- (Rupees nine lakh) with interest @ 9% per annum on the amount within 30 days. The OP no. 1 was directed to pay compensation to the tune of Rs. 3,00,000/- (Rupees three lakh), litigation cost of Rs. 20,000/- (Rupees twenty thousand) etc. The OPs were further directed to execute and register the deed of conveyance to the satisfaction of complainant within one month subject to deposit of Rs. 3,00,000/- (Rupees three lakh) to be deposited by the complainant in the office of the Forum concerned, to be released in favour of the Developer after possession was delivered with certain default clauses.
Being aggrieved by and dissatisfied with the judgment and order dated 17-04-2017, as noted above, the present appeal has been preferred by the OPs of the above noted complaint case.
The case of the complainant of CC/240/2015 is that the OPs no. 2 to 6 of the said complaint case are the joint owners of the land measuring 1 katha 12.50 chitataks of land and the OP no. 1 being a proprietorship firm represented by its sole proprietor one Shyamal Indu was entrusted to develop the plot of land by constructing a multi storied building by a Development Agreement dated 30-11-2013. The complainant being the neighbours of the aforesaid land owner and developer approached the developer for purchasing a self contained flat measuring 450 sq. ft. more or less on the ground floor of the multi storied building, to be constructed on the land, having two bed rooms, one dining cum kitchen, one toilet for a consideration of Rs. 12,00,000/- (Rupees twelve lakh). The complainants on the date of execution of the said agreement for sale paid to the OP no. 1/Developer a sum of Rs. 3,00,000/- (Rupees three lakh) on proper receipt, further paid another sum of Rs. 3,00,000/- (Rupees three lakh) on 10-05-2014 which was also duly acknowledged by the OP no. 1.
The complainants repeatedly requested the OPs to complete the construction of the building including the flat agreed to purchase but the OP no. 1 paid no heed to the requests of the complainants and constructed only the roof casting of the ground floor and the construction work was completely stopped. The complainants who area the neighbours of the OPs repeatedly requested the OP no. 1 to collect next installments from them for further construction but it was informed by the OP no. 1 that no further construction work would be done. They also refused to refund the amount received in terms of agreement rather they threatened the complainants to implicate in a criminal case. The complainants also stated that the OPs were bound to complete the construction of the flat as per agreement and to deliver possession of the same within November 2014 and the complainant was to take over possession of the flat within 7 days from the date of notice, but they never received any such notice. The OP no. 1 failed to complete the construction of the flat and deliver possession of the same within the stipulated period and failed to execute and register the deed of conveyance in favour of the complainant on receipt of the balance consideration. The other OPs also did not take steps to complete the construction of the building though they were jointly and severally deficient in rendering service of the housing construction and the same being detrimental to the interest of the complainants prompted them to take recourse of the Forum concerned.
A joint written version was filed on behalf of the OPs who in their said written version categorically denied the cause of action, as averred in the petition of complaint and they further contended that the complaint case was not maintainable in law. Admitting the factum of agreement for sale, amount of consideration to the tune of Rs. 12,00,000/- (Rupees twelve lakh), the OPs admitted that they received a sum of Rs. 6,00,000/- (Rupees six lakh) from the complainants but due to the fault of the complainants in payment of balance consideration as per agreement, i.e. 3rd and 4th installments, the construction work could not be completed in due time and the OP no. 1 demanded interest of the defaulted installments though ultimately they prayed for dismissal of the complaint case with costs since it was not a deliberate and negligent act of the OPs.
Ld. Trial Forum upon consideration of the facts and circumstances of the case, the reliefs sought for on the basis of the materials on record allowed the petition of complaint, held the OPs jointly and severally liable to perform their part in terms of the agreement, further directed the OP no. 1 to pay compensation etc. as quoted in the earlier part of the judgment.
Now the point for consideration is whether Ld. Trial Forum was justified in disposing of the complaint case in favour of the complainants.
Here agreement between the parties was not disputed rather it was categorically admitted by the OPs of CC/240/2015 (i.e. the appellants herein). Ld. Counsel appearing for the appellants could not deny the fact that out of Rs. 12,00,000/- (Rupees twelve lakh) towards consideration the developer initially received Rs. 6,00,000/- (Rupees six lakh) and as per statement of accounts from Allahabad Bank (at page 34 of the file) dated 17-02-2017 that he received another Rs. 3,00,000/- (Rupees three lakh) and in total Rs. 9,00,000/- (Rupees nine lakh) from the complainant/purchaser but the commissioner’s report clearly revealed that the construction of the flat was yet to be completed totally and taking into consideration the facts of the case, Ld. Trial Forum directed the OP/appellant herein to execute and register the deed of conveyance in favour of the complainant/respondent upon completion of incomplete works, as referred to in the Commissioner’s report but on receiving balance consideration of a sum of Rs. 3,00,000/- (Rupees three lakh) within 30 (thirty) days from the date of order in default to get the deed executed through the Forum concerned on deposit of such balance consideration. We modify the order of the Ld. Trial Forum to that extent that the cost of registration of the flat as well as the completion of unfinished works would be borne by the appellant/OP. The entire process of completion of construction work shall be completed within 60 days from the date of the order instead of 30 days as directed in the judgment impugned. Thus the appeal is allowed in part and we dispose of the appeal with the above modifications but we exempt the appellant from paying litigation cost as well as compensation to the tune of Rs. 3,00,000/- (Rupees three lakh) as directed.
