DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 62_ OF ___2016
DATE OF FILING : 22.6.2016 DATE OF PASSING JUDGEMENT: 19.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Ashik Ikbal Mallick, son of Golam Postafa Mallick of Village Ramdevpur, P.O Bawali, P.S Bishnupur, Dist. South 24-Parganas, Pin-743384.
O.P/O.Ps : 1. M/s Urban Buildtech, Private Limited at M-92, Paharpur Road, Kolkata – 24 represented by its Directors 2 to 4.
2. Mr. Md. Junaid, son of Md. Ayub , F-25, Shahi Astabal Garden Reach Road, Kolkata -24.
3. Ifran Ahmed, son of Md. Salahuddin , 25, Ekbalpur Lane, Kolkata – 24.
4. zubair Ahmed son of Tarique Ahmed , 19/E, Mominpur Road, P.S Ekbalpore, P.O Khiderpore, Kolkata – 23.
5. Giasuddin Mallick, son of late Abdul Samad Mallick.
6. Najubuddin Mallick
7. Riajuddin Mallick
8. Sujauddin Mallick
6 to 8 are sons of late Abasuddin Mallick.
9. Fulsura Bibi, wife of late Abasuddin Mallick,
5 to 9 are of Village Ramdevpur, P.O Bawali, P.S Bishnupur, Dist. South 24-Parganads, Pin-743384.
10. Marufa Bibi, wife of Mujibar Mallick , Chandannagar, Helapara, P.S Metiabruz,Pin 743368
11. Habiba Bibi, wife of Misba Molla, Akra 10 no.Gumti , P.O Akra, Dist. South 24-Parganas, Pin-700 140. ,
5 to 11 are represented by their Attorney
12. Mr. Md. Junaid, son of Md. Ayub , F-25, Shahi Astabal Garden Reach Road, Kolkata – 24.
13. Irfan Ahmed, son of Md. Salahuddin , 25, Ekbalpore Lane, Kolkata – 24.
14. Zubair Ahmed, son of Tarique, 19/E, Moninpur Road, P.S Ekbalpore, P.O Khidderpore, Kolkata – 23.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
With an intention to buy two shop rooms for running his business ,which is the only means of livelihood of the complainant, the complainant paid Rs.7.50 lakh out of total consideration price of Rs.9 lacs to the developers i.e O.P nos. 2 to 4 by virtue of an agreement executed by and between the parties on 21.8.2015. But developers did not effect registration of the deed of conveyance and, therefore, the complainant has filed the instant case, praying for registration of the deed , delivery of the possession of the shop rooms and also for compensation , in the alternative for return of the entire consideration price paid with 18% interest thereon. Hence, this case.
The O.P nos. 1 to 4 have been contesting the case by filing written statement,wherein it is averred by them that the complainant was not ready and willing to get the sale deed registered despite repeated requests to him on their part and , therefore, the said agreement was cancelled and the complainant was asked to take the price paid by him. But he did not receive the price and, therefore, the O.Ps have sold away the two shop rooms to other willing purchasers after cancellation of the aforesaid agreement.
Upon the averments of the parties the following points are formulated for consideration:
POINTS FOR DETERMINATION
- Are the O.Ps liable for deficiency in service for not executing and registering the deed of conveyance in favour of the complainant?
- Are the O.Ps liable for return of the consideration price received by them from the complainant?
- Is the complainant entitled to get the relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Both the parties have led their evidences and the same are kept in the record. The questionnaires and the replies filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point nos. 1,2 and 3 :
For the sake of convenience , the discussions of all the points are synchronized.
Perused the petition of complaint, the written statement filed against thereto and the questionnaires along with replies given by the parties.
Heard the submissions of Ld. Lawyer appearing for the complainant. None appears on behalf of the O.Ps to argue the case.
It has been contended on behalf of the O.Ps that the complainant did not make the payment in accordance with the schedule to the agreement and, therefore, the agreement was cancelled by them and having cancelled that agreement, they have sold away the subject shop rooms to other purchasers.
A perusal of the agreement dated 21.8.2015 it reveals that there is “Schedule C”annexed to the said agreement. But there is no time mentioned for payment of the balance consideration price. If no time is mentioned for payment of the balance consideration price, we may easily hold that it was not the intention of the parties to make the time an essence of the contract. If the time is not made the essence of the contract, the contract cannot be rescinded for non-payment of the money . In a case of such kind, the developer should have given a notice to the complainant and by giving such notice they could have made the time as an essence of the contract. But no such notice has been given by the developer to the complainant. Had such notice been given to the complainant by the developers, the developers would have been able to file a copy of such notice before the Forum. In absence of such document, we feel constrained to say that the time was never made the essence of contract by the developer and that the developers did never rescind the contract dated 21.8.2015 .
But now, the complainant has opted for return of the consideration price paid by him to the developers along with 18% interest. It has been stated by the O.Ps that the subject shop rooms have already been sold out to others. Under such circumstances it is better, as we think, to return the consideration price paid to the developers by the complainant. By this time, the complainant will have to spend much more money for purchasing the shop rooms as the price of the shop rooms has gone up excessively. Regards being had to these aspects, we are of the opinion that complainant is entitled to get compensation also from the developers for escalation of price.
Point nos. 1,2 and 3 are thus disposed of in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 to 4 with cost of Rs.5000/- and dismissed exparte against all other O.Ps as they are the land owners, without cost.
The O.P nos. 1 to 4, who will remain liable jointly and severally, are directed to return the consideration price i.e Rs. 7,50,000/- to the complainant with interest @12% p.a from the date of respective payments of the said money to the date of full realization within a month of this order.
They are also directed to make payment of Rs.250,000/-( two lacs Fifty Thousands) as compensation for appreciation in value of the land along with litigation cost of Rs.5000/-as referred to above to the complainant within a month of this order, failing which the compensation amount and the amount of cost as referred to above will bear interest @12% p.a till realization.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
