DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
Amantran Bazar, Kulpi Road, Baruipur, Kolkata – 144.
C.C. CASE NO. __364___ OF ___2015____
DATE OF FILING : 12.8.2015_ DATE OF PASSING JUDGEMENT:_19/7/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Aloke Kumar Das, son of late Abani Mohan Das of 174/28A/2, N.S.C Bose Road, P.S Netaji Nagar, Kolkata -40.
2. Smt. Gopa Das,wife of Aloke Kumar Das of , 174/28A/2, N.S.C Bose Road, P.S Netaji Nagar, Kolkata -40.
O.P/O.Ps : 1. Smt. Mallika Mukhopadhyay, wife of late Prakash Mukhopadhyay
2. Smt. Shrestha Mukhopadhyay, d/o late Prakash Mukhopadhyay
3. Sri Sambo Mukhopadhyay, son of late Prakash Mukhopadhyay
4. Sri Sangram Mukhopadhyay, son of late Prakash Mukhopadhyay
All 1 to 4 of premises no.233A/6, N.S.C Bose Road, P.S. Netaji Nagar, Kolkata -40.
5. Sri Kalipada Majumder.
6. Sri Prabir Majumder,
Both 5 and 6 are sons of late Pabitra Kumar Majumder of 10/24, Netaji Nagar, P.S Netaji Nagar, Kolkata -40.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This complaint is filed under section 12 of the C.P Act, 1986 on the ground that one Smt. Ashalata Majumder , widow of Pabitra Kumar Majumder along with her family members made a representation before the Refugee Rehabilitation Department, Government of West Bengal for obtaining patta in respect of the said plot of land whereupon on 17th January, 1992 the Government of West Bengal through Governor executed a Deed of Gift and registered before the Additional Sub-Registrar Office at Alipore transferred and conveyed the said plot of land as donor in favour of Smt. Ashalata Majumder as Donee which was duly recorded in Book no.1 ,
Volume no.2, Pages 17 to 20 in the year 1992. The photocopy of the deed of gift dated 17.1.1992 is annexed as annexure A. It has further stated that on 5th December, 1995 the said Ashalata Majumder died intestate leaving behind two sons Kalipada Majumder and Prabir Kumar Majumder who jointly inherited the said land and premises under the Hindu Succession Act 1956 who are O.P nos. 5 and 6. It has further stated that O.P nos. 5 and 6 decided to develop a portion of the said land and premises measuring about 1 cattah and 9 ½ chittaks of land by constructing a brick built building thereon, which would consist of several self contained flats and apartments and shop rooms, but due to lack of fund could not proceed further ,whereupon the said O.P nos.5 and 6 on 15th May, 2008 entered into an agreement for development of the said land and premises with Prakash Mukhopadhyay ,since deceased, the predecessor in interest of O.P nos.1,2 ,3 and 4 herein as builders/contractors for development and construction of several self contained flats and/or apartments with a clear stipulation that the owners’ allocation would be 45 % of the total area and remaining 50% would be builder’s allocation and it was also decided that construction would be completed within 18 months from the date of execution of the said development agreement. A Xerox copy of the Development Agreement dated 15.5.2008 is annexed herewith. Thereafter complainant was offered to purchase one self contained flat measuring 1200 sq.ft more or less area being entire first floor of the newly constructed building from the developer’s allocation at a total consideration ofRs.13,00,000/- , for which an agreement was executed on 12.11.2009 between the complainant and the O.Ps , wherein Prakash Mukhopadhyay as developer, widow of Prakash Mukhopadhyay put her signature as witness. Pursuant to the said agreement complainant paid Rs.5 lacs on diverse dates towards the part payment of the said purchase. Thereafter, Prakash Majumder ,the developer, died for which although complainant was ready and willing to pay balance consideration money at the time of registration of the deed of conveyance, but the same was not fulfilled. The legal heirs of Prakash Majumder who are O.P nos. 1 to 4 already made party. It has been strongly claimed by the complainant that the construction was not completed due to sudden death of Prakash Mukhopadhyay and wife of the deceased, O.P-1, intimated the complainant no.2 by a letter dated 25.5.2011 that the O.P nos.1 to 4 are the legal heirs of the deceased Prakash Mukhopadhyay and also informed that O.P-1 is ready and willing to proceed with the work of construction in terms of the development agreement dated 15.5.2008 but because of the dispute between the O.P nos.5 and 6 the said construction could not be proceeded . It has claimed that five and half years have already elapsed from the date of execution of the agreement , but till this day the building and the flat remains incomplete and not habitable due to false assurance given by the O.P-1 to take time and linger the matter. The complainant is ready with the balance consideration money of Rs.8 lacs and willing to pay the same after completing the construction of the said flat. O.P-1 by several letters admitted regarding the agreement for sale and also admitted that she alone with her daughter and sons with great difficulties failed to complete the construction and practically she is in trouble and in the said letter dated 12.11.2009 he has also admitted her inability to do any further work of construction of the building inasmuch as she urged the complainant no.1 to take back the advance money which he has paid to her deceased husband with interest at the fixed deposit rate of any Nationalized Bank from the date of payment . Xerox copy of the said letter is annexed herewith. But the complainant apprehends that O.P nos. 1 to 4 in collusion with other may sell out the said flat for which it is crystal clearly that the act of the O.Ps is a deficiency in service and unfair trade practice. Hence, this case for a direction to the O.P no.1 to 4 to complete the construction of the entire first floor and direction upon them to give possession of the entire first floor with habitable condition and to receive balance consideration money of Rs.8 lacs , direction upon all the O.Ps to execute and register the deed of conveyance in respect of the said flat , injunction against the O.P nos. 1 to 6 not to transfer the said flat other than the complainant, compensation of Rs.5 lacs and cost Rs.50,000/-.
O.P-6 contested the case by filing written version and has submitted that the case is not maintainable in the eye of Law and also challenged all the allegations leveled against them. It is the positive case of the contesting O.P that he never put any signature in the agreement for sale dated 12.12.2009 and he has no knowledge at all regarding this agreement and also does not know the physical appearance of the complainant as he is not inheritant of the schedule property. This contesting O.P also denied regarding existence of any letters or correspondences made between the complainant and the O.P nos. 1 to 4. So, he refrained himself to say anything regarding the statement and allegations made therein. So, this O.P is not subject to any deficiency of service or unfair trade practice etc and prays for dismissal of the case.
The O.P nos.1 to 4 also contested the case by filing written version and has claimed that this case is barred by the principle of estoppels, waiver etc. It is the positive case of these contesting O.Ps that Prakash Mukhopadhyay who happens to be the husband of O.P-1 and father of O.P nos. 2 to 4 entered into the development agreement with the O.P nos. 5 and 6 on15.5.2008 to develop the property mentioned in Schedule A of the development agreement. It is also admi6ted that Prakash Mukhopadhyay entered into an agreement for sale with the complainants in respect of flat at first floor of the building on 12.12.2009 at a total consideration of Rs.13 lac. But unfortunately said Prakash Mukhopadhyay ,since deceased, has gone away on 22.11.2010 leaving O.P nos. 1 to 4 and due to his premature and sudden death his family members are suffering bolt from the blue. It has claimed that O.P-1 is a house wife and she has no job. O.P-1with small savings from her paternal home maintained and brought up her three children and since she was a house-wife. None of the O.Ps have never any knowledge ,experience in the field of development of land by construction of a building. It has claimed that O.P-2 after attaining majority and completion of her education joined service, and O.P no.3 is taking training in a dance school , O.P-4 is still doing his studies. Since these O.Ps having no income or savings or experience to complete the construction of the building and to pay compensation as claimed. It has claimed that complainant has paid only Rs.5 lacs out of total consideration of Rs.13 lacs and she has further claimed that cost of the construction has already in hike that the cost of the construction in the year 2009. So, cost of construction in 2016 cannot be the same identical. It has claimed that O.P-1 by a letter dated 11.12.2012 ,which was received by the complainant on 12.12.2012, asked and requested the O.P to pay balance consideration price within 15 days from the date of receipt of letter, to her to enable to complete the construction, failing which, the said agreement for sale will be treated as cancelled But the complainants failed to act accordingly. In this circumstances complainants are not the consumer now. It has claimed that said agreement for sale has been cancelled for not complying the said letter dated11.12.2012 . It has strongly claimed that there is an alternative remedy in the said agreement for sale in para 7 page 8 where the parties to the said agreement agreed that “in the event of failure by the developer to complete the schedule flat and execute and register the deed of conveyance in favour of the purchaser, the purchaser shall have the liberty to get refund of the advance money with Rs.5000/- as penalty”. Thus O.Ps state that in view of the said alternative remedy as agreed by and between the parties to the said agreement , the complainant is now only entitled to get refund of the earnest money and Rs.5000/- in addition as penalty. The O.Ps besides refund of the earnest money and the penalty of Rs.5000/- as mentioned in the said para 7 page 8 of the agreement for sale and undertake to pay interest on the earnest money @ current nationalized bank interest per annum till 28.12.2012 i.e expiry of the period of the notice dated11.12.2012 issued by the O.P-1 ,where she in clear words asked the complainants to pay the balance amount from receipt of that letter to complete the construction of the schedule flat failing which the said agreement for sale will be treated as cancelled. Accordingly complainants are only entitled to get the earnest money of Rs.5 lac and Rs.5000/- as penalty ,besides interest at the rate of nationalized bank. There is no deficiency in service on the part of the O.P nos. 1 to 4 and pray for dismissal of the case.
O.P-5 did not file written version ,but filed brief notes of argument and has claimed in the brief notes of argument that he is not liable to pay any cost and compensation or damages to the complainant and prays for necessary order which he undertakes to abide by the said order of the ld. Court.
Points for decision in this case is whether the O.P-1 to 4 acted any deficiency in service by not giving the flat in dispute to the complainant and whether the O.P nos. 5 and 6 acted any role in this regard .
Decision with reasons
At the very outset , it must be stated that parties are binding by the Agreement for Sale and it is the direction of the Hon’ble Supreme Court as well as Hon’ble National Commission and Hon’ble State Commission. So, no one can departure from that agreement for sale. So, no one can departure from that agreement for sale .
Admittedly complainant made an agreement for sale on 12.11.2009 with Prakash Mukhopadhyay since deceased after depositing Rs.5 lacs on diverse dates towards the part payment of the said purchase of the flat ,although the total consideration was Rs.13 lacs. It is also admitted that Prakash Mukhopadhyay died on 22.11.2010 i.e after less than one year from the date of agreement, because the date of agreement is 12.11.2009 , that is why the present O.P nos. 1 to 4 being an widow and children definitely having no knowledge about the construction matter and due to premature and sudden death of the only earning members at that time ,they are suffering lot. But fact remains still then the Widow who is O.P-1 expressed her willingness to deliver the said flat by issuing one letter dated 11.12.2012 which was received by the complainant on 12.12.2012 with a requested to pay the balance consideration money within 15 days from the date of receipt of the letter to enable her to complete the construction, failing which, said agreement for sale will be treated as cancelled. This letter was issued within a year more or less after the demise of Prakash Mukhopadhyay . So, it is undoubtedly not unnatural but it is a good gesture from the part of the developer. But good sense was not prevailed and no farthing was paid by the complainant to theO.P-1 ,since other legal heirs of Prakash Mukhopadhyay were at that time not competent to perform this job being students. In this pecuniary circumstances when the complainant failed to hand over any farthing ,the agreement for sale has already been cancelled . It has also been clearly proved that complainant was unwilling to get the flat at that juncture . it is also appearing from the letter dated 25.10.2011 that although the dispute between the two landlords ,who are O.P nos.5 and 6 regarding their partition suit pending, even than O.P-1 informed that she is still ready and willing to complete the work once the dispute between the two brothers ended. But this letter is relied by the complainant and copy of the letter is annexed with the complaint petition which is after few months from the date of death of Prakash Mukhopadhyay. But complainant cleverly did not speak anything regarding the letter dated 11.12.2012 and also not denied the existence of the said letter for the reasons that if the said letter is produced then it is pro0ved that agreement for sale was cancelled.
Apart from that , O.P nos. 1 to 4 submitted the information slip from the Civil Court i.e 5th Court of Civil Judge, Jr. Division at Alipore , wherefrom it appears that Title Suit no.10 of 2013 was withdrawn on 30.6.2015. Apart from that another Title Suit no. 248 of 2009 in between Prabir Kumar Majumder and Kalipada Majumder was filed and it appears from the information slip dated 16.7.2017 that interim order passed in that case is still in force and the case is fixed for exparte hearing on 1.8.2014.
In this circumstances it is clear that delay of construction was happened due to non-supply of fund by the complainant after demise of original developer Prakash Mukhopadhyay and thereafter civil case is pending and parties have not taken any initiative and it was only withdrawn on 30.6.2015 and presence case was filed on 12.8.2015 i.e soon after withdrawal of the Civil Case , this present case is filed. If we calculated the date of agreement for sale ,then it will be clear that complainant was very much busy with the Civil Court since long and no payment was made after construction of the flat, that is why, the present legal heirs of Prakash Mukhopadhyay being inexperience without any fund was unable to construct the same and still then they wanted to comply the alternative remedy as agreed by and between the parties as per agreement for sale in para 7 and 8.
We should turn our eyes on the agreement for sale which is reproduced here;
“ That similarly inspite of readiness and willingness of the purchasers for purchasing the said flat on payment of the balance consideration money, if the builders/contractors failed to execute and register the deed of conveyance in fovaur of the purchaser, their nominee or nominees and in that event the purchasers shall have the liberty to either to get refund of the advance money in addition to Rs.5000/- as penalty or to file suit for specific performance of contract as per prevailing law.”
When the title suit has already been withdrawn ,filing case before the Specific Performance of Contract is go-bye and only remedy is available to get refund of advance money and cost along with interest since this part of agreement is binding upon the parties. Moreover, in the changed circumstances complainant ought to have considered the terms of para 6 page 7 which is reproduced below;
“ Inspite of having good marketable title of the builders /contractors in respect of the flat under sale and inspite of readiness and willingness of the builders/contractors, the purchasers fail to purchase the said flat on payment of balance consideration money within the stipulated period (i.e within three months from the date of execution of this agreement) in that case the builders/contractors shall have the liberty to cancel this agreement and to transfer the said property to any third party without any further reference and the money so paid as will be refunded to the purchasers herein without any interest after deducting a sum of Rs.5000/- only as a consolidated damage”.
Considering that aspect also there is no dispute regarding the good marketable title of the builders/contractors ,that is why this complaint is filed in the year 2015 long after the agreement for sale with a prayer for giving possession of the entire first floor flat with habitable condition and to receive balance consideration money of Rs.8 lacs in terms of the agreement dated 12.11.2009. After six years complainant has woken up and filed this case and before that he was trying his luck in the Civil Court and it is admitted fact that agreement was executed in the year 2009 dated 12.11.2009 and Prakash Mukhopadhyay ,original builder, was died on 22.10.2010. So, complainant had enough opportunity to pay the balance amount within a span of time of three months from the date of agreement dated 12.11.2009 upto 22.10.2010 , but inevitable did not happen and that is why after demise of Prakash Mukhopadhyay, the legal heirs , who stepped into the shoes of Prakash Mukhopadhyay , now O.P nos. 1 to 4 can easily cancel the same considering the terms and conditions . But even then they served notice dated 11.12.2012 which was received by the complainant on 12.12.2012 for payment of balance consideration money, failing which the agreement will be cancelled within 15 days. In or judicial consideration we find that when agreement is binding , soon after failing to pay the balance consideration within three months from the date of agreement, the complainant has no case whatsoever. But the widow ,O.P-1, shows her good gesture by sending letter which is not denied by the complainant.
Thus we find that in view of the reported decision of the Hon’ble National Commission in 2011 (2) CPJ pg.3,when there is a written agreement between the parties ,it is well settled that the Consumer Forum has to consider the relief in light of such agreement and it is not open to them to add or subtract any of the conditions or words thereof while doing so.
In light of the proposition ,which has been upheld through judgment in R.P mo. 497 of 2006 ,there is no doubt that the Forum below casted their jurisdiction and committed an error in directing the O.P to refund the amount ,which is a contract in terms of clause 8 of the agreement. Herein, we find that parties are binding upon the terms and conditions of the agreement and we have discussed the appropriate terms and conditions at this stage which will be applicable and we cannot add or subtract any condition or words thereof while doing so in view of the judgment of the Hon’ble National Commission reported in R.P no.624 of 2007 in between Sahara India Commercial Corporation ltd. and Anr. Vs. C Madhu Babu- respondent.
It is also true that in view of the reported decision as relied by the O.P nos. 1 to 4 that interest should be simple.
With that observation we hold that parties are binding upon the agreement and O.P nos. 1 to 4 are only entitled to refund the earnest money, compensation Rs.5000/- (as per terms of the agreement) along with interest at the prevailing rate of Nationalized Bank and other prayers of getting possession and huge amount of compensation is refused.
Hence,
Ordered
That the application filed under section 12 of the C.P Act, 1986 is allowed on contest in part against the O.Ps .
The O.P nos. 1 to 4 are directed to refund the earnest money of Rs.5 lacs along with compensation/penalty to the of Rs.5000/- and cost Rs.2000/- to the complainants within 30 days from the date of this order, failing which the full decreetal amount shall carry interest @8% p.a from the date of default till realization.
Complainants are at liberty to execute the order only to get the decreetal amounts , if O.P nos. 1 to 4 failed to pay the same within the stipulated period.
The other prayers of the complainant are refused and no order is passed against O.P nos. 5 and 6.
Let a plain copy of the judgment be supplied to the complainants and O.Ps free of cost .
Member Member President
Dictated and corrected by me
President
The judgement in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application filed under section 12 of the C.P Act, 1986 is allowed on contest in part against the O.Ps .
The O.P nos. 1 to 4 are directed to refund the earnest money of Rs.5 lacs along with compensation/penalty to the of Rs.5000/- and cost Rs.2000/- to the complainants within 30 days from the date of this order, failing which the full decreetal amount shall carry interest @8% p.a from the date of default till realization.
Complainants are at liberty to execute the order only to get the decreetal amounts , if O.P nos. 1 to 4 failed to pay the same within the stipulated period.
The other prayers of the complainant are refused and no order is passed against O.P nos. 5 and 6.
Let a plain copy of the judgment be supplied to the complainants and O.Ps free of cost .
Member Member President
