IMPORTANT POINT
Purchaser of flat must be sincere in making payment to Builder.

J. M. Malik, Presiding Member—Learned counsel for the parties present. Arguments heard.

2. There is delay of 210 days in filing this revision petition.

3. We have perused the application for condonation of delay. The State Commission decided this case on 17.1.2013. According to the petitioner/complainant, he himself received the copy on 30.1.2013 meaning thereby that he could have filed the revision petition by 30th April, 2013. However, in between complainant’s father fell sick. His father is a heart patient and a pacemaker had to be implanted and his father was discharged from the hospital on 31.1.2013. He was again hospitalized from 25.3.2013 to 27.3.2013. This ailment happened during the above said 90 days. The delay of 210 days was not explained specifically. However, it is stated that he was the only son, he had to look after his father and some documents were to be obtained. However, in the peculiar facts and circumstances and keeping in view that the father of the petitioner was lying sick, we condone the delay subject to payment of Rs.10,000/- as costs, which be paid to opposite party.

4. Now, we turn to the merits of this case. Shri Sandeep Narayan Roychowdhury, the complainant entered into an agreement on 15.5.2005 for the purchase of a flat. The attention of this Commission was invited towards the agreement. Agreement specifically, clearly and unequivocally states that:

“2. It shall be duty and responsibility of the Developer to erect and complete the said building in all respect using materials of good quality and deliver vacant possession thereof to the purchaser within 12 months from the date of execute of this Agreement thereof upon receipt of full price and consideration money of the said flat to be paid by the purchaser to the developer in the manner hereinafter mentioned and in this regard shall be the essence of the agreement provided the Developer is not prevented from completing the work under any act thing beyond the control of the owners/Vendors and the Developer.

3. It shall be the duty and responsibility of the purchaser to make payment of the full consideration money in the manner as follows:

a) at the time of booking of the said flat the Purchaser pay a sum of Rs.50,000.00 only to the Developer.

Rs.10,000.00 (Ten thousand only as token money. Paid by cheque.)

Rs.40,000.00 (Forth thousand only) within 30 days i.e. 12.06.05.

b) Within 3 (three) months the purchaser will pay further sum of Rs.3,50,000.00 only to the developer and Rs.1,00,000.00 only to pay further within two month.

c) at the time of giving possession of the said flat the purchaser will pay the balance sum of Rs. (rest amount) to the developer.”

5. This is an admitted fact that the petitioner paid a sum of Rs.3,50,000/- towards the material only. It is also admitted fact that he had not paid the amount of Rs.1 lakh as stipulated in the agreement. However, the learned counsel for the petitioner submitted that it transpired that the opposite party was not using correct material, consequently, the complainant of his own purchased marbles worth Rs.1 lakh. The petitioner has produced on record the bill in the sum of Rs.57151/- + Rs. 11010/-. The total amount comes to Rs.68,161/-.

6. These documents were not filed before the District Forum and the District Forum held that no evidence was led in this respect.

7. It has also come to our notice that when the complainant was not satisfied with the construction, he filed a writ petition bearing No. 16024 of 2006 before the High Court of Kolkata upon which the Hon’ble Court directed the Chairman, Barrackpore Municipality to consider the grievance of the complainant vide order dated 18.9.2006. In spite of of issuing directions to the Chairman, Barrackpore Municipality, no action was taken by the Municipal Authority which led to filing of a contempt petition before the High Court of Kolkata on 7.5.2007. However, the contempt petition after hearing the parties was rejected on 23.6.2009.