DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 20_ OF ___2016
DATE OF FILING : 1.3.2016 DATE OF PASSING JUDGEMENT: 14.03.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Swapan Kumar Saha, son of late Ramkrishna Saha
2. Soma Saha, wife of Swapan Kumar Saha.
3. Ranit Saha, son of Swapan Kumar Saha ,
All of Flat no.E-1, Ground Floor, P.O Garia, Garia Station Road, behind Harimati Girls Schools, P.S Sonarpur, DIST> South 24-Parganas, Kol-84.
O.P/O.Ps : 1. Sri Sasanka Sekhar Mondal, son of late Sudhannya Kumar Mondal.
2. Smt. Rita Mondal, wife of Sasanka Sekhar Mondal, both are Partners of Damini Associates, 9, Garfa 4th Lane, Kolkata – 75.
3. Smt. Tanushree Chatterjee, wife of late Kalyani Chatterjee of 36B, Palloisri, P.S Jadavpur, Kolkata -92.
4. Smt. Anushree Guha, wife of Sri Sekhar Guha of Nivedita Road, Konnagar, District-Hooghly.
5. Md. Mahabubur Rahman, son of Malek Rahaman of Village- Brahmbangram, Uttar Bagursar Street, Bagnan-I, Uluberia, Howrah, P.S Bagnan, P.O Kalyanpur, Pin-711303.
6. The Authorised Officer, Sundaram BNP Paribas Home Finance Limited, Sundaram Tower, 46, Whites Road, Chennai-600014.
7. The Manager, Sundaram BNP Paribas Home Finance Limited,Krishna Building, Room no.715, 7th floor, 224, AJC Bose Road, Kolkata – 17.
8. The Inspector-In-Charge, Sonarpur P.S, Sonarpur,Kolkata-150.
9. The Inspector-In-Charge, Garfa Police Station, Garfa, Kolkata- 75.
10. The Senior Manager, United Bank of india, Garia Station Road, Branch, Kolkata -84.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
The quintessential facts of the petition of complaint are that the complainants intending to purchase a flat near Calcutta entered into an agreement for sale on 9.6.2013 with O.P nos. 1 and 2 for a consideration price of Rs.17 lacs. The flat is succinctly described in the petition of complaint and also in the schedule to the agreement dated 9.6.2013. Rs.11.5 lac was paid by the complainants to the developers i.e O.P nos. 1 and 2 . O.P nos. 3 and 4 are the land owners. Development Agreement was effected on 13. 7.2009 between the land owners and the developers. In pursuance of the agreement dated 9.6.2013 physical possession of the flat was handed over to the complainant on 14.8.2014 and possession certificate was issued in favour of them on 10.3.2014. But no sale deed was effected by the O.P nos. 1 and 2 in favour of the complainants inspite of repeated requests on behalf of the complainants to that effect. To their utter surprise, on 18.12.2014 the complainants found the O.P-1 to ask them to vacate the flat in favour of one Md. Mahabubur Rahaman (O.P-5) to whom the flat was said to have been sold by the O.P nos. 1 and 2. The complainants on enquiry also came to know that a registered deed was effected in favour of O.P-5 on 3.4.2014 by O.P nos. 1 and 2. Now, therefore, the complainants have come up before this Forum with the filing of the instant case ,praying for issuing a direction upon the O.P nos. 1 and 2 for registration of the flat in favour of them and also for payment of compensation and litigation cost etc. Hence, this case.
The O.P nos. 1 and 2 have been contesting the case by filing written statement , wherein they have admitted that the consideration price of the flat was fixed at Rs.17 lac , that the Sale Agreement was also executed by them on 9.6.2013 and that they received Rs.16,15000/- as consideration price from the complainants. It is also averred by them that the possession of the flat was made over to the complainants on 10.3.2014 i.e within a period of 9 months from the date of agreement. According to them, market price of the flat was roaring high and many offers came to them for purchase of the flat. So, they requested the complainants to cancel the agreement with them and the complainants also agreed to their proposal, but on the very day of registration of the flat in favour of the O.P-5, complainants did not turn up. To them, they are still ready and willing to return the money received by them from the complainants with interest and compensation, provided the complainants cancel their agreement.
One written statement is also filed by the O.P-10 i.e the U.B.I Bank and it is stated by the Bank that loan was advanced to the complainants after having observed due formalities for the purpose of purchasing the flat and that unless the flat is registered by O.P nos. 1 and 2 in favour of the complainants, their mortgage will fail.
Upon the averments of both sides, following points are formulated for consideration in this case.
POINTS FOR DETERMINATION
- Are the O.P nos. 1 and 2 guilty of deficiency in service as alleged by the complainant ?
- Are the complainants entitled to get reliefs as prayed for?
Evidence of the Parties:
Both the complainants and the O.P nos. 1 and 2 have filed their affidavits-in- chief as evidences. Questionnaire and replies and also the Brief Notes of Arguments(BNA) filed by them are also kept in the record for consideration.
DECISION WITH REASONS
Point nos. 1 and 2 :-
Already heard the submissions of Ld. Lawyers. Perused the petition of complaint, the written statement filed by the O.Ps, their evidences on record and also the Brief Notes of Argument filed on their behalf.
Considered all these.
On perusal of the petition of complaint and the written statement filed by the O.P nos. 1 and 2 it is found that most of the allegations of the complaint are admitted by the O.Ps. The Agreement for Sale between the complainants and the O.P nos. 1 and 2 is admitted. Payment of Rs.16,15000/- is also admitted by the said O.Ps. According to the O.Ps, the complainants agreed to cancel their sale agreement having received back the consideration price paid to them by the complainant ; but, ultimately they did not turn up to cancel the said agreement on the date of registration of the flat in favour of O.P-5.
Let us see now whether there is any grain of truth in the aforesaid version of the O.P nos. 1 and 2.
There is no documents produced by the said O.Ps to prove that the complainants agreed to cancel the said agreement executed in between them and the O.P nos. 1 and 2. We know very well that circumstantial evidence does never lie. Let us make an evaluation of circumstantial evidence in order to ascertain whether the aforesaid version of the O.Ps carries any truth with it.
The complainants paid Rs.16,15000/- to the O.P nos. 1 and 2 out of the total consideration price of Rs.17 lac. Out of the amounts paid to the O.P nos. 1 and 2 i.e Rs.16,15,000/-, the complainants paid Rs.5 lac from their pocket and Rs.11.5 lac was paid by the Bank i.e O.P-10. The complainants made application for house loan before the Bank i.e O.P-10 and the Bank granted the loan after having conducted proper enquiry. These facts are admitted ones and all these facts go a long way to prove the bonafide activity of the complainants. It is also admitted fact that the complainants have no space for accommodation anywhere in or around Calcutta. Regards being had to these aspects which are revealed by the conduct of the complainants , and which stands undisputed, we are compelled to say that a prudent and reasonable man under such circumstances would not feel any urge to cancel their agreement for sale. The complainants did not agree to cancel their agreement for sale and the averments of the O.P nos. 1 and 2 that the complainants agreed to cancel the agreement for sale is nothing but a figment of fertile imagination and, therefore, this averment of the said O.Ps is strongly discarded.
It has been stated by the complainants that the O.P nos. 1 and 2 have not effected any deed of conveyance in respect of the subject flat in favour of them inspite of their repeated demands to that effect. The act of not effecting deed of conveyance in favour of the purchaser by the developers is deficiency in service and the developers will have to effect such registration of the flat in favour of the complainants. That apart, it is also an unfair trade practice on the part of the said developers. To effect a sale deed in favour of O.P-5, after the execution of sale agreement with the complainants, O.P nos. 1 and 2 have adopted such unfair trade practice in order to make easy money and , therefore, they will have to pay compensation to the complainants for harassment and mental agony, the complainants have suffered for fraudulent act of the said O.Ps.
Point nos. 1 and 2 are thus answered in favour of the complainants.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against O.P nos. 1 and 2 with cost of Rs.10,000/- and dismissed exparte against the rest of the O.Ps without cost.
The O.P nos. 1 and 2 are directed to effect registration of the deed of conveyance in respect of the subject flat in favour of the complainants , and also to pay Rs.40,000/-as compensation for harassment and mental agony caused to the complainants and Rs.10,000/- as litigation cost as referred to above within a month of this order, failing which, the compensation amount and the amount of cost will bear interest @ 10% p.a till realization.
At the same time, the complainant are also directed to pay to the O.P nos. 1 and 2 or to deposit in the office of the Forum Rs.85000/- as full and final payment of consideration price , as the case may be, within 15 days of this order for the purpose of getting sale deed registered in their favour.
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
