Order No. 44 dt. 15/05/2017
The case of the complainants in brief is that the complainants entered into an agreement with o.ps. for purchasing a flat and the amount was fixed at Rs.11,44,000/-. The complainants in order to purchase the flat an agreement was entered into between the complainants and o.p. no.1. The complainants in order to purchase the flat approached the SBI, Delhi for loan. The loan was sanctioned by the said bank and the bank sent an agreement which was sent to o.ps. for putting signature and also obeying the terms and conditions of the said agreement. But o.ps. did not comply the said request of the complainants and accordingly the SBI informed the complainants that they are unable to disburse the amount to the complainants. Subsequently the complainants received a letter from o.ps. informing that the allotment of apartment no.B3A, Poorvi Shirstinagar, New Asansole has been cancelled. In order to avoid their responsibility to comply the request of the complainants the o.ps. deducted an amount of Rs.1,14,400/- towards the service charge @ 10% of total price of the flat. Because of such wrongful act on the part of o.ps. the complainants suffered financial loss for which the complainants filed this case praying for direction upon the o.ps. to rescind withdraw or cancel the letter of cancellation and handover the necessary documents required for disbursement of loan and handover the possession of the flat after receiving the balance consideration money with adjustment of the wrongful deducted amount of Rs.1,14,400/-.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainants applied for allotment of an apartment and provisional allotment of 2 BDR apartment no. B3A, Poorvi Shirstinagar, New Asansole and the price was fixed at Rs.11,44,000/- and car parking fee nil and down payment of Rs.1,71,600/- was made by the complainants and the rest amount was scheduled to be paid as per terms and conditions of the allotment letter dt.9.2.09. In the agreement itself it was mentioned that o.ps. have a standardized govt. approved tripartite agreement which needs to be entered into by the intending purchaser, the company and the bank and the said fact was made clear to the complainants at the time of application for allotment of said unit. No deviation could be accepted in the matter of tripartite agreement and as such, the question of signing different tripartite agreement other than the standard agreement followed by the company could not be entertained as desired by the complainants and the same was communicated to the complainants.
The complainants made a payment by cheque of Rs.57,400/- and a money receipt dt.11.11.09 was issued by o.ps. towards the partial payment of the consideration amount. The allotment of the said apartment was cancelled for non compliance of the payment norms by the complainants. As per the terms and conditions of the agreement it was specifically stated that 10% deducted service charge would be made and which was accepted by the complainants, therefore the question of refund of Rs.1,14,400/- does not arise. Since the complainants are not consumers as per Sec 2(d) of the C.P. Act, therefore the case does not lie and accordingly o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainants entered into an agreement with o.ps. for purchasing a flat.
- Whether the complainants paid installment as per the terms and conditions of the agreement.
- Whether there was any deficiency in service on the part of o.ps.
- Whether the complainants will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that in order to purchase a flat the complainants entered into an agreement with o.ps. and in order to secure the loan from the bank and as per the desire of bank the complainants forwarded the agreement to o.ps. for fulfillment of the requirement of the bank and the complainants requested the o.ps. to make all queries as sought for by the bank and an agreement has to be made between the parties to that effect. The o.ps. did not comply the requirement of the bank and therefore SBI, Delhi did not sanction the loan. Subsequently with the forwarding of the sanction of the loan by the complainants to SBI, Asansole Branch, the bank also sought for the agreement with o.ps. but o.ps. did not comply the same. Subsequently o.ps. deducted a sum of Rs.1,14,400/- towards the service charge, as such, the complainants filed this case praying for direction upon the o.ps. for execution of the deed of sale in respect of the flat in favour of the complainants on payment of the balance consideration money after adjustment of the deducted amount of Rs.1,14,400/- which was taken by o.ps. towards the service charge and also the complainants prayed for compensation and other reliefs.
Ld. lawyer for the o.ps. argued that the complainants entered into an agreement with o.ps. and in the said agreement it was specifically stated the terms and conditions for allotment of flat in favour of the complainants. The complainants failed to pay the installment and as per the terms and conditions of the agreement the flat was not provided to the complainants. There was no deficiency in service on the part of o.ps. The complainants falsely started this case against the o.ps. for which o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainants entered into an agreement with o.ps. for purchasing a flat and the consideration price was fixed at Rs.1,44,000/-. Out of the said consideration price it appears from the evidence on record that the complainants paid an amount of Rs.2,29,000/-. Since o.ps. failed to provide the necessary documents to the complainants for securing loan from SBI the complainants had to forward the agreement to o.ps. for entering into the agreement with the bank but o.ps. did not comply the said request of the complainants, on the contrary it appears from the materials on record that o.ps. deducted a sum of Rs.1,14,400/- towards the service charge and cancelled the agreement suomoto without giving any opportunity to the complainants to explain their views before cancellation of the said flat in question. In view of such evidence on record since the agreement was entered into between the parties and in compliance of the terms and conditions of the agreement the complainants paid an amount of Rs.2,29,000/- and if the complainants would have failed to pay the balance amount as per the stipulation made in the agreement o.ps. could have asked the complainants to comply the terms and conditions of the said agreement. But instead of giving any opportunity to the complainants to explain their position the cancellation was made by o.ps. whimsically. Therefore we hold that there was gross deficiency in service on the part of o.ps. and the complainants will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.299/2010 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to give possession and register and execute the deed of conveyance in respect of the flat in question in favour of the complainants after receiving the balance amount including adjustment of the illegally deducted amount of Rs.1,14,400/- and after adjustment of the said amount with the balance amount that will be paid by the complainants and are also directed to pay to the complainant compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
