DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 76/2021

Date of Filing      Date of Admission                Date of  Final Disposal

17.03.2023          24.03.2023                             20.09.2023

P R E S E N T               :-  Monisha Shaw.…………………Member.

                                       :- Sri.  Abhijit Basu………………. Member.

Complainant filed  this case u/s 34,35,36 and 39 of the Consumer Protection Act, 2019.

          The brief facts of the case is complainant and the O.P signed an agreement on 09.11.2020 for salt for 2BHK flat on the 2^nd floor, being No.5 for sale for measuring about 949.ft  (  North west side) at premises N0.38/A, S.P Mukhuerj Road,Belgharia , Kolkata-700056 as the O.P constructing a multi storied building thereon with10% down payment (i. e.2.20 Lakhs ) and 30 days of time was given to deposit remain consideration  amount.

          The O.P offered to help the complainant and her husband to secure housing loan from Bank of Baroda. But the complainant and her husband were disagreed and complainant submitted  application for housing loan before S.B.I. It is alleged that the opposite parties intentionally did not cooperate with the SBI lawyers for their searching the property for kill the 30 days time. The loan from S.B.I was rejected for unavailability of sufficient documents by developer. It was alleged by the complainant that the O.P was getting another customer who were ready to pay him more for purchase the same property. However, to non co-operation by the developer the loan application was cancelled by S.B.I. Thereafter the complainant shows the paper to couple of lawyers to seek their

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advise and they says that the paper are not in order and that can cause problem in future if the complainant go with this property. After observing everything and as for non cooperate with the advocate of SBI by O.P, the petitioner has no choice but to cancel the agreement. As soon as the complainant cancel the agreement and demanded return of the earnest money paid, the O.P refunded earnest money after deducting 15% of earnest. The complainant filed this complaint for refund the said 15% i.e. Rs. 33,000/- and other reliefs as the O.P did not provide their service properly by non-supply of documents. The opposite parties appeared and filed written version and contested the case.The O.P stated in their W/V and BNA that in the agreement for sale it is specifically states that ‘purchasers has taken inspection of the said premises No-38/A, S.P. Mukherjee Road, P.S. Belgharia, Kolkata-700056, and also taken inspection of the abstract of file relating to said premises and had made him fully conversant with the contents of the conveyance and abstract of title and has fully satisfied himself as to the title thereof’. It is also stated by the O.P in W/V and BNAthat there were several buyers who purchased flat from the opposite parties by providing same documents as given to the complainant and her husband but they did not face any problem in securing house building loan from Banks /Financial Institutions like Bank of Baroda, Syndicate Bank, SBI, HDFC, DHFL and the LIC. It is admitted by the O.P that the complainant and the O.P made an agreement and  signed the said agreement for sale for said flat on 19.11.2020, the complainant and her husband and O.P signed the said agreement for sale for a consideration of Rs. 21,35,200/-. It is also admitted that a sum of Rs.2,20,000/- was paid by the complainant as earnest money. It was paid by the complainant as earnest money. It was agreed that within 30 days the deed of conveyance would be made. The O.P also stated in W/V and BNA that the complainant and her husband decided not to further proceed with agreement for sale and cancel the same on their own will and volition. As soon as the complainant cancel the agreement and demanded return of earnest money paid, the opposite parties refunded the said earnest money after deducting 15% from the earnest money through an A/C payee cheque being No.583415 dated 17/12/2020 drawn on Indusind Bank, Dunlop Branch amounting to Rs.1,87,000/.The husband of the complainant received the said cheque on behalf of him and complainant without any objection. The cheque was cleared from the Bank and earnest money was returned  as per stipulation contained in agreement for sale. The O.P also stated that the husband of the complainant is required a necessary party. It is also admitted by the O.P that the O.P offered to help the complainant and her husband to secure housing loan from Bank of Baroda. The O.P stated that as the complainant and her husband were unable to

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secure house building loan from any Bank /Financial institution hence they unable to pay the residual portion of consideration price, hence they cancel the agreement and O.P return earnest money after deducting 15% as per agreement.

                   Issue framed for the purpose of decision

1. Whether the case is maintainable or not?
2. Whether the complainant is entitled to get relief or reliefs in this case or not?

Decision with reasons

          Considering the facts and circumstances as well as well as nature and character of this cae all the points are interlinked with each other and as much all the points of consideration are taken up together for the sake of brevity and convenience.

          we perused all the documents along with supporting affidavit reatated documents and argument of both the parties.

          The case is within territorial and pecuniary jurisdiction of this commission. Hence this commission has ample power to try this case.

          In the instant case complainant paid the earnest money as part of consideration money so he is a consumer and the opposite party is service provider.

          It was agreed between the parties in point No.3 of the agreement that ‘in   case the purchaser commits default in observing the covenant herein with 30 days from the date of execution of this agreement in such event the agreement shall stand terminated and all rights and claims of the purchaser against the Landowner and developer hereunder shall be forfeited and the land owner / developer shall be entitled to enjoy and /or transfer all rights and interest forfeited as aforesaid in its own favour and the amount paid by the purchaser shall be refunded after deducting 15% of deposited amount as damage and the said amount shall be refunded after booking of said flat to the other purchaser/s’. The agreement should not be for one point absolutely. As per

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record it revealed that the Advocate for SBI send notice to the Promoter for produce the original deed of conveyance but the O.P did not produce the same as such the advocate for SBI sent letter on 28.11.2020 to the Asst. General Manager SBI RACPC Bidhannagar that ‘the mother deeds of scheduled land executed in the year 1978, 1980 and 1982 in the name of Smt. Gita Rani but there is no parcha in the name of Gita Rani Saha as well as in the name of present land owner. More so, the final sanctioned of building plan has been done 10.01.2015but till now the developer did not get completion /occupancy certificate from the concerning authority regarding schedule building. It is mentioned here that the scheduled flat is from land owner’s allocation but there is no possession letter regarding the scheduled flat in the name of the landowners. Therefore, in this circumstance I am returning the file’. On 07.12.2020 the Ld. Advocate for SBI sent letter to Assistant Manager of SBI that he called the developer for original documents for verification even developer did not receive the call and not submit the original documents for verification hence he could not submit TIR.

          In this respect it is the latches of the opposite parties to provide good service on the part of the opposite parties. The O.Ps required to produce or show the original documents/ conveyance before the advocate of SBI. As the O.P developer did not produce the original deed of conveyance and did not replied the explanation (if any) regarding the non produce of original deed of conveyance for sanctioning loan to the complainant from the SBI authority therefore it would be treated as deficiency in service on the part of the opposite parties. As the O.P did not produce the original Deed of conveyance before the Advocate of SBI hence the loan was not sanctioned by the SBI authority as such the complainant could not pay the balance consideration money which was happened for non-cooperation on the part of opposite parties which will be treated as deficiency in service on the part of the opposite parties. The complainant proves her case as much she is entitled to get relief. As O.P did not cooperate to the complainant for obtaining loan from SBI, as stated above. So, O.P could not deduct 15% from the earnest money which paid by the complainant.

Hence,

it is ordered

that the case being No. 76/2021be and the same is allowed on contest.

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The opposite parties are directed to refund the amount of Rs. 33,000/- to the complainant  with 6% interest from the date of received  till recover within two month from the date of this judgement.

Failing which the complainant has liberty to file execution case as per law.

Let a plain copy of this be given to the parties free of cost as per CPR 2005.

Dictated and corrected by me

Member                                                                         Member

Member