MATIUR RAHAMAN vs Jahanara Begum

-THE present appellants/opposite parties have impugned the order dated 31. 8. 2004 passed by the State Commission, West Bengal whereby O. P. Nos. 2 (a) to 2 (g) and O. P. No. 1 were directed to complete the unfinished construction work in the disputed flat in question to issue a completion certificate in favour of the complainant within a period of 60 days; to execute and register the deed of conveyance in favour of the complainant upon receipt of balance consideration money from the complainant and to pay a sum of Rs. 10,000 by way of compensation and in case the order is not complied with then it would carry interest @ 8% p. a.

THE facts giving an occasion to file this First Appeal are as under: The predecessor-in-interest of the appellants, Haji Abdus Sattar and Haji Abdus Gaffar entered into an agreement dated 10. 2. 93 with one Nurul Huda Layek, respondent No. 2 in the present appeal for promotion and development of premises No. 3, Colonel Biswas Road, P. S. Karya, Kolkatta-700019. The land owner also executed a general power of attorney for the purpose of smooth execution of the said agreement. Respondent No. 2 was categorically authorised for receiving money from the tenants/occupiers. The complainant/respondent No. 1, Jahanara Begum was inducted as a monthly tenant in respect of a portion of the first floor of premises at rent of Rs. 500 per month. She paid Rs. 40,000 as advance. This amount of Rs. 40,000 was to be adjusted with monthly rent @ Rs. 250 per month as per the agreement of tenancy dated 1. 8. 86. In this way, after a total sum of Rs. 18,000 had been adjusted upto July, 1992. Nurul Huda and the said OPs as owner of the said premises entered into an agreement that the opposite party No. 1, the promotor and the builder in writing dated 10. 2. 1992 for construction of a multi-storeyed building on the same premises after demolishing the original dwelling house as per sanction plan. All the three opposite parties approached the complainant with the proposal that a self-contained plot admeasuring more or less 612 sq. ft. complete with sanitary and electrical fittings along with common facilities would be offered to her at a price of Rs. 2,16,000 which would include the amount still due from her to the O. P. Nos. 2 and 3 out of the above-mentioned advance amount and what she had already paid as tenant as advance would be deducted. The complainant accepted the offer and accordingly a separate agreement dated 28. 7. 92 was executed with her. In accordance with the terms and conditions of the Agreement, the complainant/respondent No. 1 paid a sum of Rs. 91,000 to the opposite party No. 1. But the construction was unnecessarily delayed and after a lapse of more than 1 year the possession was delivered to the complainant on 24. 9. 1993 subject to the solemn assurance and undertaking given by the OPs to complete minor construction work remaining unfinished and to further execute and register deed of conveyance upon receipt of the balance consideration money. But it was alleged that the OPs had been neglecting to complete the unfinished work of construction of the flat and also to execute and register the necessary deed of conveyance in her favour despite the repeated reminders of the fact that the complainant was ready to pay the balance amount of consideration payable by her. Feeling aggrieved the complainant filed a complaint in the year 1995 seeking direction to the OPs to complete the unfinished construction work of the flat and to execute and register the sale deed in her favour upon receipt of balance consideration amounting to Rs. 1,25,000. She also claimed compensation of Rs. 3 lakh for the inconvenience caused to her due to failure of the OPs to comply with the terms of the contract.

The opposite parties 2 to 7 (2a to 2g) contested the complaint, inter alia on the grounds that the complaint was hopelessly barred by the time, the State Commission did not have the jurisdiction to entertain the complaint, the complaint was barred by provisions of Specific Relief Act, 1963 and the remedy would lie in filing civil suit, for the dispute was of civil nature and complicated questions of law would arise and voluminous evidence would be required to be recorded. The opposite parties further contended that since the matter is sub-judice, the case before the Consumer Fora could not be taken up for hearing pendency of civil suit.

THE State Commission after considering the material on record dismissed the plea of limitation holding that the complaint was within time from the date of delivery of possession of the flat. On the points of jurisdiction of the State Commission to entertain the complaint, complaint being barred by the provisions of the Specific Relief Act, dispute being of civil nature and complicated question of law, the State Commission rejected them in view of the judgment of the Apex Court in the case of Lucknow Development Authority v. M. K. Gupta, III (1993) CPJ 7 (SC)=air 1994 SC 787, as housing activity was service and it was inherent in such type of agreements that builder/promoter should perform his obligation as agreed to and to deliver a flat with leaking roof or cracking wall was denial of service and ultimately allowed the complaint in the manner as stated above. We have heard the learned Counsel for the parties and have also gone through the impugned order and material available on record.

THE fact that the possession of the flat was delivered on 24. 9. 1993 in unfinished condition is not denied and nothing has been shown to us by the appellants that the construction was complete. Delivering the flat after agreed period would itself amounts to deficiency in service and as such the complainant would be entitled to get compensation for her agony, inconvenience, mental harassment and torture by delayed delivery of the flat and not removing the defects would further amount to deficiency in service. If the appellants could not remove the defects during the last 15 years, the respondent would be justified in withholding the amount so long as the defects were not removed and completion certificate was not issued. It may be mentioned that the complainant had already paid a sum of Rs. 91,000 out of the agreed amount of Rs. 2,16,000. Complainant is also ready and willing to pay the balance consideration immediately as soon as the OPs file the completion certificate showing that remaining construction work has been finished by them. But she was not paying the amount because the appellants/opposite parties had not shown any sign of compliance with her request. The conduct of respondent No. 2 would indicate that they were not inclined to complete the construction work and by putting pressure they wanted to extract some money from the complainant over and above what has been agreed to. But at the same time, one could also not be oblivious to the fact that the respondent No. 1/complainant was also supposed to pay the balance amount Rs. 1,25,000. In the aforesaid circumstances, in order to ensure that both the parties are treated equitably we decide the matter with the following directions - (1) That the complainant/respondent No. 1 would deposit unpaid amount of Rs. 1,25,000 with the State Commission within a period of two months from the date of receipt of this order.

(2) That the appellant as well as the opposite parties shall ensure that the work of unfinished construction is completed within a period of two months failing which the appellant jointly and severally with respondent No. 2 would be liable to pay Rs. 60,000 to the complainant/respondent No. 1 to complete the unfinished construction work.

(3) The appellant along with respondent No. 2 shall ensure that the completion certificate of the building is obtained within a period of three months from the date of receipt of this order and they shall also execute the conveyance deed in favour of the complainant. In case of failure to do so the appellant along with respondent No. 2 shall be jointly and severally liable to pay compensation @ Rs. 2,000 per month after the date of order of this Commission till order is complied with.

(4) The sum of Rs. 10,000 which has been awarded as compensation by the State Commission is confirmed with interest imposed thereon.

In case the above said directions are not complied with the complainant/respondent No. 1 shall be entitled to proceed with execution under Sections 25 and 27 of the C. P. Act, 1986. The order of the State Commission is though confirmed in substance but is modified with an idea to just ensure early compliance by both the parties. The First Appeal is disposed of accordingly. There shall be no order as to costs. Appeal dismissed.