Order-17.
Date-30/10/2015.
In this complaint Complainant Gagan Ray by filing this complaint has submitted that op nos. 4 & 5 is the absolute owner in respect of the property which was subsequently amalgamated in one premises and the now the two premises amalgamated in one i.e. 7E, Kamardanga Road, P.S.-Entally, Kolkata -700046.
Op Nos. 1, 2 & 3 are the partners of a partnership firm under name and style of M/s. Dream Builder’s who are the developers.Op nos. 1, 2 & 3 entered into an Agreement for Development with op nos. 4 & 5 on 17.02.2006 and on 20.04.2007 respectively to develop and construction of residential building on the said land and the op nos. 4 & 5 also gave a General Power of Attorney dated 17.02.2006 and 20.04.2007 respectively to op nos. 1, 2 & 3 for developing the land which is situated at 7E, Kamardanga Road, P.S.-Entally, Kolkata-700046.
On receipt of the Sanctioned Plan by the KMC Authority vide Plan No.23009070169 dated 12.10.2009 through Borough No. VII, ops started the construction on the aforesaid land.As per the said Agreement for Sale, ops developer No. 1, 2 & 3 were agreed to sale out a self-contained flat measuring more or less 850 sq. ft. including 20 percent super-built-up area consisting of two bed rooms, one kitchen-cum dinning, two bath & privy at a consideration amount of Rs. 18,70,000/- at the rate of Rs.2,200/- per sq. ft. on ownership basis in the newly constructed G+3 storied building situated on the South West Portion of the second floor of the premises being No. 7E, Kamardanga Road, P.S.- Entally, Kolkata-700046.
According to the said Agreement for sale, complainant paid the total sum of Rs.10,00,000/- to the ops developer Nos. 1, 2 & 3 against the said Agreement for Sale out of total consideration amount of Rs. 18,70,000/-.
Accordingly to the said Agreement for Sale the developers were suppose to handover the said flat within 12 months from the date of the said Agreement i.e. on 01.08.2012.But thereafter Developers after completion of the stipulated period of the construction of the building, op fails to handover the possession of the said flat, when the complainant asked the developers for the possession of the said flat,.But op nos. 1, 2 & 3 on several ground ignored the complainant’s request with a plea that they will provide the possession of the flat very soon in the newly constructed building but all were in vain.
According to the said agreement for sale clause No.7, op shall have to hand over the Xerox copy of the title deed and other relevant documents/papers to the complainant for verification and to prepare Deed of Sale.But op with an intention to cheat the complainant neglected to handover the said document and also neglected to handover the possession of the said flat and by that way ops are violated the terms and conditions of the Agreement for Sale and urgent need of suitable accommodation of the complainant.
After long discussion and several meetings and understanding, op and complainant mutually agreed to pay and accept Rs. 14,00,00,000/- as settled amount against the said flat.Op developer no.2 issued 4 cheques in the name of the complainant and out of 4 cheques, 2 cheques total amounting to Rs. 3,00,000/- were encashed by the complainant but remaining of two cheques of Rs. 3,10,000/- and another Rs. 2,00,000/- were not encashed by the complainant vide cheque No. 001672 dated 24.07.2013 amounting to Rs. 3,10,000/- and cheque No. 017802 dated 21.10.2013 amounting to Rs. 2,00,000/- respectively were requested by the ops to the complainant not to deposit the said cheques until further instructions but till date the ops never gave any instruction to deposit the said cheques to the complainant and as a result the cheques were expired.
Recently vide a letter dated 11.04.2014 when the complainant asked the op for the fresh cheques for the rest of the due amount with interest as per practical norms from ops but all were in vain.
In spite of repeated requests made by the complainant to give the remaining balance amount along with interest as per practical norms but op did not pay any heed to that and ops till date have not given any amount except Rs. 3,00,000/-.
In the above circumstances, for the negligent and deficient manner of service and for deceiving the complainant in such a manner and also for adopting unfair trade practice, complainant prayed for proper relief and also for compensation etc. as prayed for.
On the other hand op nos. 1 to 5 by filing written statement admitted that the execution of the said Agreement to Sale received of Rs. 10,00,000/- out of Rs. 18,70,000/- and also admitted that he already refunded Rs. 3,00,000/-.But his case is that he had paid Rs. 8,10,000/-.So, complainant is entitled to get back Rs. 1,90,000/-.But complainant has claimed a false claim for which the present complaint is not maintainable and in fact complainant is not entitled for any compensation when he willfully took advance money of Rs. 1,10,000/- out of advance Rs. 10,00,000/- and in the above circumstances, the present complaint is not maintainable.
Further op nos. 1 to 5 submitted that there is no question of paying any amount of Rs.11,00,000/- as agreed amount of settlement etc. and all the other allegations of the complainant is false and prayed for dismissal of this case.
Decision with reasons
On proper evaluation of the complaint and the written version and also considering the argument as advanced by the Ld. Lawyers of both the parties and further considering the written version of the ops, it is undisputed fact that there was an Agreement for Sale in between the parties and that Agreement was executed by the ops on 01.08.2012 and as per said Agreement admittedly ops received Rs. 10,00,000/- out of total consideration money of Rs. 18,70,000/-.
It is also admitted fact that op failed to hand over the said flat within the time as per Agreement and so op no. issued 4b cheques to pay of Rs. 8,10,000/-. But it is proved that out of the 4 cheques, 2 cheques were encashed by the complainant for a total amount of Rs. 3,00,000/-. But two other cheques being No. 001672 dated 24.07.2013 amounting to Rs. 3,10,000/- and another cheque No. 017802 dated 21.10.2013 amounting to Rs. 2,00,000/- had not yet been encahsed as op instructed the complainant not to deposit without his further instruction.
Fact remains that ops have admitted that they issued 4 cheques but their case is that complainant encahsed the 4 cheques but anyhow op has failed to prove that cheqaue being nos. 001672 and No. 017802 were encashed by the complainant. But anyhow ops have admitted that they are liable to pay the balance amount but as per their contention the balance amount is only Rs. 1,90,000/-. But anyhow it is proved beyond any manner of doubt that ops have adopted unfair trade practices. They actually paid Rs. 3,00,000/- and in respect of cheque No. 001672 dated 24.07.2013 amounting to Rs. 3,10,000/- and another cheque No.017802 dated 21.10.2013 amounting to Rs.2,00,000/- had not been encashed by the complainant.
So, apparently complainant is entitled to get back Rs.7,00,000/- out of Rs. 10,00,000/- because already Rs. 3,00,000/- have been paid to the complainant. At the same time it is proved that complainant took back the refund amount that means he was not willing to implement the Agreement because he was disgusted for the negative attitude of the developer/owners i.e. ops.
Truth is that as per Agreement ops failed to handover the possession of the flat. It is also undisputed fact that from 31.07.2011 to 15.09.2012, complainant in total paid Rs. 10,00,000/- and that has been admitted by the ops. Truth is that in the meantime in the year 2013 complainant got back Rs. 3,00,000/- from the op. So, balance Rs.7,00,000/- is still unpaid since Sept. 2012. So, invariably complainant has suffered huge financial loss and practically op by adopting unfair practice sold the same to other persons at a high rate by deceiving the complainant in such a manner and not only that they issued 4 cheques out of which 2 cheques are encashed and balance of two cheques are not encashed which is also proved by any execution bank statement that 2 cheques of Rs. 5,20,000/- had been encahsed by the complainant.
Considering all the above fact and circumstances, we are convinced to hold that those ops by adopting unfair trade practice and deceived the complainant in so many manner for which no doubt complainant is entitled to some compensation also along with refund of money that is Rs.7,00,000/- along with interest at the rate of 9 percent p.a. w.e.f. 16.09.2012 over the same till full payment of the same by the ops. But anyhow the complainant is not entitled to get any other such relief for getting possession of the flat etc. because he has already received back part amount of total refund of Rs.10,00,000/- i.e. only Rs. 3,00,000/-.
But on overall assessment of the entire materials on record, we find that since execution of the Agreement to Sale by the ops on 01.08.2012 they have been harassing the complainant in so many manner and at the same time the hope of the complainant for purchasing of flat of the so called cheat promoter/developer/owner who adopted unfair trade practice and for which the present complaint bears a truthful story regarding negligent and deficient manner of service on the part of the ops and also their conduct and unfair trade practice as adopted in dealing with the present business with the complainant.
But it is proved beyond any manner of doubt for the negative attitude of the op and also for deficient manner of service, complainant has been harassed and he has suffered a huge financial loss.
In the result, this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the ops with cost of Rs. 10,000/-.
Ops jointly and severally are hereby directed to refund the entire amount of Rs. 7,00,000/- along with 9 percent interest p.a. over the same w.e.f. 16.09.2012 till its full payment to the complainant and also for harassing the complainant in such a manner and for deceiving the complainant in such a manner and also for adopting unfair trade practice, ops jointly and severally shall have to pay compensation of Rs. 1,00,000/- to the complainant.
For adopting such sort of unfair trade practice and deceitful trade with the consumers by the ops and also for checking their such sort of activities in future to protect the interest of the consumer punitive damages of Rs. 50,000/- is imposed and op nos. 1 to 3 jointly and severally and they shall have to pay the same before this Forum.
Ops particularly op nos. 1 to 3 shall have to comply this order within one month from the date of this order, failing which for non-compliance and disobeyance of the Forum’s order, ops shall have to pay penal interest at the rate of Rs.300/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.
Even if it is found that ops are reluctant to comply the order, in that case penal proceeding u/s 25 read with 27 of C.P. Act 1986 shall be started for which further penalty and fine shall be imposed upon all the ops.
