DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _196 _ OF ___2015
DATE OF FILING :_23.4.2015 DATE OF PASSING JUDGEMENT: _19.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Tapan Dey.
2. Nandan Dey
3. Sri Pintu Dey, all sons of Sri Mantu Dey
4. Sri Pritam Dey, son of Sri Pintu Dey
All residing at 22, Roynagar, Madhya Para, P.O Bansdroni, P.S Bansdroni, Kolkata – 70.
O.P/O.Ps : 1. Smt. Debjani Ghosh, wife of Sri Ranjit Kumar Ghosh , previously at 103, Subodh Garden, P.O Bansdroni, P.S Bansdroni, Kolkata – 70, presently at B/37, Niranjan Pally, , P.O Bansdroni, P.S Bansdroni, Kolkata – 70.
2. M/s Rajasree Construction, represented by its sole proprietress Smt. Debjani Ghosh, wife of Sri Ranjit Kr. Ghosh at 103, Subodh Garden, P.O Bansdroni, P.S Bansdroni, Kolkata – 70, presently at B/37, Niranjan Pally, , P.O Bansdroni, P.S Bansdroni, Kolkata – 70.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, The facts leading to the filing of the instant case by the complainants are that O.P-1 is the owner/developer and O.P-2 is the Firm of O.P-1. An agreement for sale was effected between the O.Ps and the complainants on 4.10.2010 and thereby the O.Ps agreed to sell the entire second floor flat measuring 1900 sq.ft as succinctly described in Schedule B to the complaint for a total consideration price of Rs.10,05,000/- . The complainants paid Rs.10 lac only part by part to the O.Ps. It was agreed between the parties that balance amount of Rs.5000/- was to be paid at the time of registration of the deed and delivery of possession of the flat. The possession of the flat was to be delivered and the registration of the flat was to be completed within 18 months of the sanction of building plan by the Corporation. But no construction has yet been made by the O.Ps. It has also been learnt by the complainants that the O.P-1 has sold away the entire land on 27.5.2010 to a company namely “Madaya Silp Pvt. Ltd.” But this fact of transfer of the said land has been completely suppressed by the O.Ps. Therefore, the complainants pray inter alia for refund of the consideration price paid by them to the O.Ps, compensation etc. Hence, this case.
The written version of the O.Ps, as it stands after amendment of written statement, is that the O.P-1 did not execute any sale agreement in respect of the subject flat in favour of the complainants as alleged by them. According to her, a Civil Suit being no.T.S 2342 of 2010 filed on 18.8.2010 before the Ld. Civil Judge, Jr. Division at Alipore is pending and ,therefore, it has not been possible for them to get the building plan sanctioned from the proper authority. It is further averred that the instant case is filed at a premature stage as the time for performance of the contract is not yet over. So, to them, the complaint should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in Law?
- Are the O.Ps liable for deficiency in service as alleged by the complainants?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led on behalf of the complainant and the O.Ps. Questionnaires, replies, Documents and BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
It has been contended on behalf of the O.Ps that the complainants are not at all consumers ,because no sale agreement was executed by the O.Ps, agreeing thereby to sell any flat to the complainant.
Ld. Lawyer appearing for the complainant has contended that the sale agreement was executed by the O.Ps and the same is admitted by them in the written statement filed by them. It is also contended by him on behalf of the complainants that there is no denial in the written version filed by the O.Ps in respect of acceptance of consideration money by the O.Ps. So, to him, the complainants are consumers within the meaning of the terms as provided under C.P Act, 1986.
The O.P-1 has denied the execution of the sale agreement dated 4.10.2010. It is found that at one point the execution of the agreement is denied by the said O.P and at another point the execution of the agreement is admitted by the said O.P, though in indirect manner. It is nowhere specifically denied in the written version that the O.P-1 accepted the consideration price i.e Rs.10 lac out of Rs.10,05,000/-. So, as per rules of pleadings, we feel no hesitation to hold that the acceptance of the consideration money by the O.Ps stands admitted. The payment of consideration money has also been explicitly mentioned in the sale agreement. If the payment of consideration money is not disputed by the O.Ps, the terms of the sale agreement cannot at all be disputed by the O.Ps. Further, the sale agreement stands admitted by the O.Ps in their written version filed on 25.1.2016. In paragraph 13 of the said written version it has been averred that the instant case is premature, inasmuch as the time for performance fo the concerned agreement is not over as yet. Does this averment not indicate that the sale agreement was executed by the O.P-1? It indicates and indicates only that the sale agreement was executed by the O.P-1. Furthermore, the averment that the sale agreement was not executed by the O.P-1 was not present in the original written statement filed by the O.Ps on 25.1.2016. Such averment has come to the picture only on 29.7.2016 i.e six months after filing of the original written statement, in amended version of written statement filed on behalf of the O.Ps. Regards being had to this aspect of the matter , we feel compelled to say that the averment denying the execution of the sale agreement by the O.P-1 is an afterthought and preposterous one. The complainants are certainly consumers within the meaning of the term under the provisions of Consumer Protection Act, 1986. The “Housing Construction” which the O.Ps have promised to do for the complainants is a “Service”, within the meaning of definition under section 2(1)(o) of the said Act and that is why the complainants are regarded as consumers and the instant case appears to be quite maintainable in Law.
Point no.1 is thus answered primarily in favour of the complainants.
Point no. 2 & 3 :
It is mentioned in the sale agreement that the O.Ps will construct a flat and deliver possession thereof to the complainants within 18 months of the date of getting the building plan sanctioned by the municipality. The sale agreement was executed on 4.10.2010 and now it is 2018. Eight years have already passed away ; but the construction of the flat is yet to see the light of the day. Is it not default on the part of the O.Ps in so far as the terms of the sale agreement are concerned? The O.Ps have resorted to a fine subterfuge. According to them, a Civil Suit bearing no.TS 2342 of 2010 filed on 18.8.2010 before the Ld. Civil Judge, Jr. Division at Alipore, is pending and, therefore, it has not been possible for them to procure the building plan sanctioned by the municipality. The suit was filed on 18.8.2010 and the sale agreement was executed by the O.P-1 on 4.10.2010 i.e after filing of the suit. The O.P-1 should have disclosed the fact about the filing of the suit before the complainants at the time of execution of the sale agreement. But, they did not do so. They kept it suppressed under the carpet. Not only this, they also got another material fact suppressed from the notice of the complainants. It has been stated on affidavit by the complainants that the entire land, on which the flat was to be constructed, has been transferred to a company namely Madaya Silp Pvt. Ltd. on 27.5.2010. This transfer has also been made by the O.P-1 before execution of the sale agreement and, therefore, the O.P-1 should have disclosed all these facts before the complainants. But nothing has been disclosed before the complainants and by non-disclosure of all these materials facts before the complainants; the O.P-1 has induced the complainants to execute the sale agreement and thus she has managed to swindle fabulous sums of money as consideration price from the complainants. Had this fact been disclosed before the complainants by the O.P-1, the complainants would not have ventured to find themselves into the trap of O.P-1.
Be that as it may, inexcusable delay on the part of the O.Ps to construct and deliver the possession of the flat to the complainants is nothing but gross deficiency in service and, therefore, they are bound to compensate the complainants. The complainants are found to be entitled to get the refund of the consideration money with proper interest.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Ps with a cost of Rs.10,000/-.
The O.P nos. 1 and 2 are directed to refund the consideration price of Rs.10 lac, received by them from the complainants, with penal interest @15% p.a from the date of payment of each installments, if any, till full realization thereof, within a month of this order.
No compensation is awarded to the complainants ,because penal interest has been given on the money ,required to be refunded to the complainants.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
