Sri Ashoke Kumar Pal, President
The matrix of the instant complaint case in short is that the complainant booked a flat measuring about 740 Sq. ft. in the 2nd Floor of Block-A being Flat No. B-2 more fully described in the schedule-C of the agreement for sale (Annexure-A) dated 10.04.2014 at a valuable consideration of Rs. 18,50,000/- (Rupees eighteen lakh and fifty thousand) only. The complainant paid Rs.7,86,000/- (Rupees Seven lakh eighty six thousand) only out of the total consideration amount of Rs. 18,50,000/- (Rupees eighteen lakh and fifty thousand) only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts(Annexure-B). The complainant also entered into supplementary agreement dated 15.12.2014 for garage. The O.Ps. violated the terms and conditions of the agreement and failed to deliver the possession of the scheduled flat with garage to the complainant despite payment of considerable amount. The O.Ps. also failed to execute and register a proper deed of conveyance in respect of the scheduled flat with garage in favour of the complainant receiving the balance consideration amount despite repeated requests by the complainant. The complainant approached the O.Ps. several times to deliver the peaceful possession of the scheduled flat with garage in favour of the complainant and / or to refund the earnest money with interest which has been paid by the complainant to the O.Ps. But the O.Ps. on all occasions gave assurance to the complainant. But ultimately failed to deliver peaceful possession of the scheduled flat with garage in favour of the complainant and also failed to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainant which prompted the complainant to file the instant complaint case on the reliefs sought for in the petition of complaint.
O.P. No. 1 contested the case by filing W.V. contending inter-alia that the claims of the complainant are all false. Subsequently, the case of the O.P. No. 1 is that the instant complaint case is not maintainable in law and as such liable to be dismissed. It was also contended that the O.P. Nos. 2 and 3, the land owners already filed Title Suit being No. 121 of 2016 before the Ld. Second Court of Civil Judge (Junior Division) at Baruipur and the same is pending for disposal. Moreover, another proceeding is also pending before the Hon’ble High Court, Calcutta. It was also contended by the O.P. No. 1 that some of the co-owners are creating objection and hindrances in the construction work and moreover the development agreement and power of attorney has been illegally cancelled for which the O.P. No. 1 could not complete the construction work. O.P. No. 1 also denied the other materials averments of the petition of complaint para wise and prayed for dismissal of the instant complaint case with cost.
O.P. Nos. 2 and 3 although did not file any W.V. and subsequently filed evidence on affidavit on 09.09.2022 contending inter-alia that after making prayer before the Ld. Commission for a fresh power of attorney the same has been granted by the O.P. Nos. 2 and 3. O.P. No. 1 could not complete the project on different pretext and excuse even after issuing fresh power of attorney. It was also contended that the O.P. No. 1 did not pay the money to the O.P. Nos. 2 and 3 as per development agreement. It was also contended by the O.P. Nos. 2 and 3 that they are contemplating to cancel the development agreement and power of attorney to avoid the necessary litigation.
Points for Decision :-
- Is the complainant a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with Reasons :-
Point No.1:-
On perusal of the case record along with copies of documents, it appears that the complainant was willing to purchase the scheduled flat more fully described in the agreement for sale and supplementary agreement for sale dated 10.04.2014 and 15.12.2014 respectively and the O.Ps. agreed to sell the same to the complainant for which the agreement for sale and supplementary agreement for sale dated 10.04.2014 and 15.12.2014 have been made by and between the parties. The complainant paid Rs. 7.86 lakh only out of the total consideration amount of Rs. 18.50 lakh only on different dates and the O.Ps. acknowledged the receipt of the same by issuing money receipts. Therefore, the complainant is a consumer as defined U/S 2(7) of the Consumer Protection Act, 2019.
As such, Point No.1 is decided in favour of the complainant and against the O.Ps.
Point No: 2:-
The complainant booked the scheduled flat and entered into an agreement for sale and a supplementary agreement for sale dated 10.04.2014 and 15.12.2014 respectively with the O.Ps. to that effect. The complainant also made part payment of Rs. 7.86 lakh only out of the total consideration amount of Rs. 18.50 lakh only and the O.Ps. acknowledged the receipt of the same by issuing money receipts from which it appears that all the payments have been properly made. On the other hand, despite payment of the considerable amount by the complainant as per terms of the agreement for sale and supplementary agreement for sale dated 10.04.2014 and 15.12.2014 respectively, the O.Ps. failed and neglected to hand over the possession of the scheduled flat to the complainant receiving balance consideration amount. The complainant finding no other alternative requested the O.Ps. to deliver possession of the scheduled flat along with garage as promised by them. But the O.Ps. are very much reluctant and paid no heed thereof. Therefore, it is clear from the averments of the complainant that the O.Ps. are guilty of deficiency in service and unfair trade practice.
As such, Point No. 2 is also decided in favour of the complainant and against the O.Ps.
Point No. 03:-
The complainant booked the scheduled flat along with garage more fully described in the agreement for sale and the supplementary agreement for sale dated 10.04.2014 and 15.12.2014 respectively from the O.Ps. and made payment of a considerable amount of Rs. 7.86 lakh only out of the total consideration amount of Rs. 18.50 lakh. But the O.Ps. violated the terms and conditions of the agreement for sale dated 10.04.2014 and the supplementary agreement for sale dated 15.12.2014. Neither the O.Ps. handed over the scheduled flat with garage as described in the schedule of the agreement for sale and supplementary agreement for sale dated 10.04.2014 and 15.12.2014 nor they returned back the amount of Rs. 7.86 lakh only with interest which they received from the complainant as per terms of the agreement for sale and supplementary agreement for sale dated 10.04.2014 and 15.12.2014. Therefore, as the complainant did not get any positive response from the O.Ps., he was compelled to file the instant complaint case against the O.Ps. on the reliefs sought for in the petition of complaint. As such, there is no hesitation to hold that the complainant is entitled to get the reliefs as prayed for as the O.Ps. did not hand over the scheduled flat with garage to the complainant. The complainant failed to get service from the O.Ps. On the other hand, the complainant was harassed by the O.Ps. by various ways. Therefore, the complainant is entitled to get the reliefs as prayed for.
Thus, the Point No. 3 is also decided in favour of the complainant and against the O.Ps.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed on contest against the O.Ps. with cost of Rs. 25,000/- (Rupees twenty five thousand) only.
The O.Ps. are jointly and/or severally liable and are directed to deliver vacant and peaceful possession of the scheduled flat with garage to the complainant and to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainant within 45 days from the date of passing this Order.
Alternatively, the O.Ps. are jointly and/or severally liable and are directed to refund the entire earnest money of Rs. 7.86 lakh along with simple interest @ 12% p.a. w.e.f. 10.04.2014(date of agreement for sale) to the complainant till the date of final realization thereof, within 45 days from the date of passing this Order.
That the O.Ps. are jointly and/or severally liable and are also directed to pay compensation to the tune of Rs. 50,000/- (Rupees fifty thousand) only for mental pain and agony, deficiency in service, unfair trade practice, harassment and inconvenience suffered by the complainant, within 45 days from the date of passing this Order.
That the O.Ps. are jointly and/or severally liable and are also directed to pay litigation cost of Rs. 25,000/- (Rupees twenty five thousand) only within 45 days from the date of passing this Order.
That the complainant is at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the O.Ps. within 45 days from the date of passing this Order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Ashoke Kumar Pal
President
