Sri Ashoke Kumar Pal, President
The matrix of the instant complainant case in a nut shell is that with the intention to purchase a flat the complainant booked a flat measuring about 650 Sq. ft. in the 3rd floor of Apartment A/20/0103, Room No.3, Tower-A/20 more fully described in the schedule of he petition of complaint as well as schedule of the agreement dated 03.06.2014 at a valuable consideration of Rs.7,00,000/- (Rupees seven lakhs) only. The complainant paid Rs.7,77,450/- (Rupees seven lakhs seventy seven thousand four hundred and fifty) on different dates and the OPs acknowledged the receipt of the same by issuing money receipt in favour of the complainant. On 03.06.2014 an agreement for sale was executed by and between the parties in respect of the scheduled flat. It was agreed that the delivery of possession of the scheduled flat is to be made to the complainant within 24 months (Term No.6 of the agreement). By letter dated 18.04.2015, the OP intimated the complainant that the Super Built up area of the allotted flat has been revised to 650 Sq.ft. instead of earlier size of 550 Sq.ft. and as such the complainant was to pay Rs.1,273/- only per Sq.ft. of additional area which comes to Rs.8,27,450/- instead of Rs.7,00,000/-. By letter dated 11.04.2019, the OPs intimated the complainant that the final date of possession of the flat will be effected within the year of 2019 and also intimated that in case of failure to make delivery of possession of the flat to the complainant the OP shall make refund of the entire amount received by them. The complainant since May, 2017 tried to get refund of Rs.7,77,450/- but the OPs failed and neglected to pay the same and tried to avoid by this way or that practicing fraud upon the complainant. Subsequently, the complainant came to know that the construction work of the proposed project has not been started and left as abandoned. As the OPs failed to comply with the terms and conditions of the agreement for sale dated 03.06.2014 and also failed to refund the amount to the complainant which the OPs received, the complainant was compelled to file the instant case on the reliefs sought for in the petition of complainant.
The OP Nos. 1 & 2 contested the case by filing W/V. It was contended that the OP Nos. 1 & 2 entered into a development agreement with Dulal Ghosh Choudhury the owner of the land for the purpose of developing the land and to sell his allocation in the said new building. During the construction work said Dulal Ghosh Choudhury restricted the OP No.2 from entering into the property and on several occasions intimated before the local P.S. The owner of the land entered into a settlement after cancelling the development agreement with the OP No.2 and promised to pay an amount of R.50,00,000/- but ultimately paid only Rs.25,00,000/-. It was further contended that the OP intends to pay the amount claimed by the complainant as soon as they receive the balance amount of Rs.25,00,000/- from the owner of the land. The OPs also denied the other material averments of the petition of complainant and ultimately prayed for dismissal of the complainant case with cost.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get reliefs 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 schedule of the petition of complaint as well as agreement for sale dated 03.06.2014 and the OPs agreed to sell the same to the complainant for which the agreement for sale dated 03.06.2014 has been made by and between the parties. The complainant paid Rs.7,77,450/- (Rupees seven lakhs seventy seven thousand four hundred and fifty) only towards the total consideration amount and all other charges on different dates and the OPs acknowledged 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, the 1st point is decided in favour of the complainant and against the OPs.
Point No:2 :
The complainant booked the scheduled flat and entered into an agreement dated 03.06.2014 with the OPs to that effect. The complainant also made full payment of Rs.7,77,450/- only towards consideration money and all other charges on different dates and the OPs acknowledged 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 entire amount by the complainant as per terms of the agreement dated 03.06.2014 the OPs failed and neglected to hand over possession of the scheduled flat to the complainant. The complainant finding no other alternative demanded the refund of Rs.7,77,450/- from the OPs which they have received from him. Therefore, it is clear from the averments of the complainant that the OPs are guilty of deficiency in service and unfair trade practice.
As such, the 2nd point is also decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant booked the scheduled flat more fully described in the schedule of the petition of complaint as well as in the schedule of the agreement for sale dated 03.06.2014 from the OPs and made full payment of the consideration amount along with other charges on different dates. But the OPs violated the terms and conditions of the agreement dated 03.06.2014. Neither the OPS handed over the possession of the scheduled flat as described in the schedule of the petition of complaint and the schedule of the agreement for sale dated 03.06.2014 nor they returned back the amount of Rs.7,77,450/- (Rupees seven lakhs seventy seven thousand four hundred and fifty) only with interest which they received from the complainant as per terms of agreement for sale dated 03.06.2014. Therefore, as the complainant did not get any positive response from the OPs he was compelled to file the instant complaint case against the OPs 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 OPs did not hand over physical possession of the scheduled flat to the complainant. The complainant failed to get service from the OPs. On the other hand, the complainant was harassed by the OPs by various ways. Therefore, the complainant is entitled to get the relief as prayed for.
Thus the 3rd point is also decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant case be and the same is hereby allowed contest against the OPs with cost of Rs.25,000/- (Rupees twenty five thousand) only.
The OPs are jointly and severally liable and are directed to refund the entire amount of Rs.7,77,450/- (Rupees seven lakhs seventy seven thousand, four hundred and fifty) only along with simple interest @12% p.a. w.e.f. 12.02.2014 (date of first payment of instalment) till the date of final realization, within 60 days from the date of passing this order.
The OPs are jointly and severally liable and are also directed to pay compensation of Rs.1,00,000/- (Rupees one lakh) only for harassment, mental pain and agony, suffered by the complainant and deficiency in service, within 60 days from the date of passing this order.
That the OPs 1 & 2 are jointly and severally liable and are directed to pay the litigation cost of Rs.25,000/- (Rupees twenty five thousand) only, within 60 days from the date of passing this order.
That the complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OPs within 60 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.in.
Dictated and corrected by me.
Ashoke Kumar Paul
President
