DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _278_ OF ___2015_
DATE OF FILING : 12.6.2015 DATE OF PASSING JUDGEMENT: 20/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarkar
COMPLAINANT : Sri Siddheswar Dey, s/o late Nanigopal Dey of Quarter no.712E/B, Eastern Railway, Sonarpur, P.S. Sonarpur, Kolkata – 150.
-VERSUS -
O.P/O.Ps : 1. Sri Ramchandra Shaw,s/o Kapil Shaw of 38, Roypur,Prem. No.110, 3rd Floor, Roypur, P.S. Patuli, Kolkata – 84, The Sole Proprietor of M/s Sarada Construction, having its office at East Baidyapara, P.S Sonarpur, Kolkata – 150.
2. Smt. Baishali Ghosh,w/o Sri Tapan Ghosh of Sarada Complex, Rajpur, P.S Sonarpur, Kolkata – 150.
3. Smt. Piyali Mukherjee (Basi), w/o Sri Avijit Basu of Ghoshpara, P.S Sonarpur, Kolkata – 150.
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J U D G E M E N T
Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the allegation that he entered into a Memorandum of Agreement for Sale on 15.11.2012 with O.P nos.1,2 and 3 i.e. developers and owners respectively for the purpose of purchase of one flat having super built up area approximately 777 sq.ft on the ground floor of the building constructed at premises being Holding no.666, Noapara, P.S Sonarpur, at a consideration of Rs.13,00,000/- with a covenant that the construction work of the building would be completed within one year from the date of agreement for sale. Complainant paid Rs.4 lacs as an earnest money and rest Rs.9 lacs to be paid at the time of registration of the deed of conveyance in favour of the complainant. But the O.Ps neglected and failed to execute and register the deed of conveyance as well as to make arrangement of registration of the flat ,not even they become able to deliver possession letter in favour of the complainant till date inspite of several requests of the complainant. Thereafter complainant compelled to send a notice dated 24.6.2014 by registered post through Ld. Advocate but except O.P-2 none of the O.ps received the same. Hence, this case with a prayer directing the O.Ps to execute and register the deed of conveyance in respect of the flat in question as per agreement for sale dated 15.11.2012 , to provide possession certificate and of the flat and to deliver completion certificate of the building , compensation of Rs.5,50,000/- , litigation cost.
Th O.P-1 contested the case by filing written version and claimed that this case is not maintainable since complainant has no cause of action and complainant is not a consumer. It is the positive case of the O.P-1 that complainant after execution of the agreement sat idle for nearly two and half years without paying any further amount towards arrear of the consideration amount as per terms of the agreement for sale. Therefore, it is clear from the averment made above that complainant has instituted the instant case by suppressing material facts and is not entitled to get any relief or reliefs. So, O.P-1 is not liable for any deficiency of service . The O.P-1 denied all the allegations and claimed that complaint case is frivolous and vexatious and prays for dismissal of the case .
The case is running in exparte against the O.P nos. 2 and 3.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
The O.P-1 has pointed out that in terms of the agreement for dated 15.11.2012 para 2 it has mentioned that the purchaser has this day paid to the vendor a sum of Rs.4 lacs only as and by way of earnest money out of full and final consideration of Rs.13 lacs only and the rest amount will be paid hereinafter from time to time and full and final payment will be made at the time of registration of the deed of conveyance. Time will be essence of the contract in case of each payment.
But the complainant suppressed the said material facts in para 2 of the complaint and has stated that although time is the essence of the agreement for sale dated 15.11.2012 and moreover a lump sum amount of Rs.4 lac only has been paid to the O.P-1 as an earnest money in respect of the said flat and the rest amount of Rs. 9 lacs only to be paid at the time of registration of the deed of conveyance , how this averment was made by the complainant in para 2 when the agreement for sale was made by the complainant which clearly suggests that “rest amount will be paid hereinafter from time to time and full and final payment will be made at the time of registration of the deed of conveyance”.
Thus we find that complainant suppressed the portion which is indicated as follows: “Rest amount will be paid hereinafter from time to time”.
Thus complainant did not comply strictly the terms and conditions of the agreement and thereby time is the essence of the said agreement for sale. The agreement was made in the year last part of 2012 and complainant filed this case on 12.6.2015. It should be mentioned here that in terms of the agreement for sale in page 6 it has been specifically mentioned that on the purchaser’s failure to complete the purchase of the said flat in terms of the agreement within the time stipulated herein, the 25% of the earnest money paid to the vendor will be forfeited and the purchase will be liable to pay proportionate cost ,charges, expenses ,damages incurred by the vendor. Apart from that as per question no.5,6,7 and 9 it is clear that complainant admitted in answer no.5 that although is agreed by both the parties that the rest amount will be paid from time to time and full and final payment will be made at the time of registration of the deed of conveyance, but there was no time schedule in the agreement to make payment and developer,O.P-1 neither asked for any amount verbally or in writing, nor he has prepared himself for registration. So, complainant has admitted at the answer to question no.5 regarding the terms and conditions of the payment but the condition which is stated is not accepted in a judicial proceedings ,because complainant has stated that there was no time schedule . May be ,it is good luck of the complainant that there was no time schedule. So, complainant easily could have paid the remaining money as per his whims and why O.P-1 will ask for payment. It is the duty of the complainant to perform his part by paying the contractual money but complainant failed to pay the same after payment of Rs.4 lacs towards the earnest money at the time of executing the agreement for sale.
So, it has nakedly proved that complainant has failed to perform his part of contract by paying from time to time the remaining amount. It should be mentioned here that if complainant paid at least some amount then complainant claimed that he has performed his part by paying from time to time and remaining amount will be paid at the time of registration of the deed of conveyance, particularly when there is no specific amount mentioned in the agreement for sale regarding the quantum of amount which will be paid by the complainant from time to time. So, that is definitely a benefit of the complainant but complainant failed to avail all the benefits by paying some quantum of amount within the passage of time at least before filing the case and inevitable did not happen. Now after lapse of so many years complainant by filing this complaint cannot ask for the said flat , particularly when the said flat is in existence or not.
It is to be mentioned here that O.P has stated in para 10 that subject flat is still vacant in his possession in an incomplete condition and also stated that complainant defaulted in payment of arrear consideration money in terms of the agreement for sale. So, developer could not complete the flat in all respect ,though major portion of the construction work has been made and accepting that contention it must be stated that there is no deficiency in service on the part of the O.Ps since payment was not made by the complainant during this passage of time and in this passage of time the cost of building materials including cement, rod, sand are already in hike ,for which it is very difficult to ask the O.P, particularly when O.P-1 had and has no fault and complainant failed to pay the remaining amount from time to time keeping some amount at the time of registration and delivery of possession in terms of the agreement. Complainant only paid Rs.4 lacs at the time of development agreement in the last part of 2012 which is admitted. Thus we must have to say that in view of the judgment of the Hon’ble National Commission, complainant is not entitled to get any relief , particularly when privities of contract came to an end the moment either of the parties failed to comply the same. Herein, complainant has failed to comply his part of obligation which we have stated above in terms of the agreement for sale.
Accordingly, it is
Ordered
That the complaint case is allowed in part on contest against O.P-1 and in exparte against O.P nos.2 and 3 without cost.
The O.P-1 is hereby directed only to refund the earnest money in terms of the agreement for sale para 16 page no.6 within 30 days from the date of this order, in default complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the complaint case is allowed on contest against O.P-1 and in exparte against O.P nos.2 and 3 without cost.
The O.P-1 is hereby directed to refund the earnest money in terms of the agreement for sale para 16 page no.6 within 30 days from the date of this order, in default complainant is at liberty to execute the order through this Forum.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.
Member President
