DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __107_ _ OF ___2018
DATE OF FILING :_24.9.2018 DATE OF PASSING JUDGEMENT: 18.11.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad & Jagdish Chandra Barman
COMPLAINANT : Soumendra Nath Mondal , son of late Santosh Kr. Mondal of Flat no.16, Prathama Apartment, Balia Main Road, Garia, Kolkata- 84.
O.P/O.Ps : Build-O-Tech Construction represented by Smt. Santa Chakraborty, of 1/9/4A, Bijoygarh, Kolkata- 32.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
About more than 20 years after delivery of possession of the flat to the complainant, the complainant has filed the instant case against the O.P developer, alleging deficiency in service.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
One sale agreement was executed by and between the complainant and the O.P on 19.9.1995 and thereby the O.P agreed to sell a self contained flat on 3rd floor of the project building to the complainant for consideration price of Rs.2 lac. Rs.50,000/- was paid by the complainant to the O.P on 19.9.1995 i.e on the very date of sale agreement. Possession of the flat was handed over to the complainant on 19.2.1998. But registration is yet to be completed. Without getting the flat registered, the complainant went in slumber for more than 20 years and now he has woke up and has filed the instant case, praying for registration of his flat on payment of balance consideration price to the O.P and also for compensation etc. Hence, this case.
The O.P filed written version to contest the case and thereafter she has not turned up to file any evidence in support of her contention. Her main contention as made out in the written version is that the complainant was childhood friend of her husband. He paid Rs.50,000/- to the O.P as application fee . Possession was delivered to the complainant on humanitarian ground ,although he did not make payment of the entire consideration price. Time was made the essence of contract and the complainant has committed breach in terms of the agreement by not making payment of balance consideration price to the O.P within the agreed time and, therefore, the agreement has become void and the complainant is not entitled to get any relief as prayed for. So, to her, the complaint should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the O.P guilty of deficiency in service for not causing registration of the flat in favour of the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant vide his petition dated 17.12.2018. No evidence whatsoever is led by the O.P.
DECISION WITH REASONS
Point no.1 & 2 :
It is admitted fact that the complainant is in possession of the flat which the O.P agreed to sell to the complainant. Also admitted is the fact that the complainant has paid only Rs.50,000/- towards the consideration price of the flat and Rs.1,50,000/- is yet to be paid to the O.P by the complainant . It has been contended in the written version by the O.P that agreement is void as because the complainant has not performed the terms of the agreement within the stipulated period.
To her, the agreement provides specific terms in Clause 1 thereof
that the payment of consideration price is to be made within the time prescribed therein. The complainant has not made the payment of the consideration money within the specified time and, therefore, the agreement has become automatically void. The complainant is, therefore, not entitled to get any remedy.
On perusal of the agreement, it is found that there is a time schedule laid down under clause 1 thereof for payment of the consideration price of the flat by the complainant. In clause 4 thereof , it is laid down that in no circumstances, the purchaser can obtain possession of the finished flat until and unless all amounts i.e the consideration price is finally paid by the purchaser to the developer.
Now to see whether all these clauses of the agreement implied that the parties intended to make the time essence of the contract. Intention of the parties is the acid test to ascertain whether the time is made the essence of the contract or not and such intention is tobe gathered with reference to the nature of the property sold or agreed to be sold , conduct of the parties and concomitant circumstances at or before the contract.
Coming to the facts of the instant case, it is found that the consideration money has not been entirely paid to the O.P by the complainant within the prescribed time. Clause 4 of the agreement lays down that possession of the flat will not be made over to the purchaser until and unless the entire consideration price is paid to the developer in accordance with the schedule laid down in clause 1 of the agreement. Clause 5 of the agreement lays down that the developer shall have right to cancel the agreement if the purchaser fails to pay the consideration price as mentioned in clause 1 of the agreement.
But, in the instant case, possession of the flat has been delivered to the complainant by the O.P inspite of non-payment of consideration price by the complainant to the O.P. What does it imply? It implies and implies only that a departure is made by the O.P from what is laid down in the agreement. Had this departure not been made by the O.P, the O.P would have stuck to the terms and conditions of the agreement , he would not have delivered the possession of the flat to the complainant without getting payment of entire consideration price from him. So, it is found that the O.P has impliedly extended the time for payment of consideration price and, therefore, she has made departure from clause 4 of the agreement which provides that in no case, possession of the flat will be delivered to the purchaser until and unless full payment of consideration price is made to the O.P. The intention of the parties is made clear from these circumstances.
That apart, the O.P has not yet filed any case for cancellation of the agreement, although it is well-known to her that the complainant has violated the terms of the agreement. Regards being had to all these including the nature of property which is immovable one, we feel no hesitation whatsoever to hold that the intention of the parties was not to make the time as essence of the contract and this being so, it can never be said that the contract became void due to non-payment of entire consideration price to the O.P .
Even assuming for a moment that the time was made the essence of the contract in the agreement, it can never be said that the contract is void. Section 55 of Indian Contract Act lays down the effect of breach of the time which is made the essence of the contract. It lays down that in case of breach of time which is made the essence of the contract, the contract becomes voidable and not void . So, regard being had to this provision of law, we would again say that the contract executed by and between the parties herein is still a valid one and, therefore, the complainant is entitled to get relief or reliefs which is granted as hereunder.
The complainant has prayed for compensation for not effecting registration of the flat in his favour by the O.P. But it is crystal clear on record that the complainant slept for more than 20 years after having got delivery of possession of the flat from the O.P. This inordinate delay has not been explained by the complainant. Regards being had to this inordinate and unexplained delay, we are of the opinion that the complainant is not entitled to any compensation from the O.P for delay caused in effecting registration of the flat in his favour.
Now, there arises another thing which requires consideration. In the instant case, the total value of the flat was Rs.2 lac and the complainant has paid Rs.50,000/- only. He is required to pay Rs.1,50,000/- as balance consideration price to the O.P. The possession of the flat was delivered to the complainant on 19.2.1998. As a part of fair play of justice, we are of the opinion that the complainant should pay interest at simple rate of interest upon the balance consideration price to the O.P.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.5,000/- .
The O.P is directed to register the deed of conveyance in respect of the subject flat in favour of the complainant within a month of this order.
At the same time, the complainant is directed to make payment of balance consideration price of Rs.1,50,000/- to the O.P with interest @6% p.a from 19.2.1998 till the date of full payment to the O.P.
It is further laid down herein that complainant will not be entitled to get registration of his flat in his favour unless and until the consideration price with interest thereon as referred to above is either paid to the O.P or deposited before the Forum.
The registration is to be effected at the cost of the complainant. n
Let a certified copy of this order be given to the parties concerned free of cost at once by the Register-In-Charge of this Forum..
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
.
ORDERED
That the complaint case be and the same is decreed exparte against the O.Ps with a cost of Rs.10,000/- .
Both the O.Ps, who will remain jointly and severally liable for making payment, are directed to return Rs.3,13,375/- to the complainant and also to pay a sum of Rs.30,000/- as compensation to the complainant for harassment and mental agony caused to him ,within a month of this order ,failing which, the refund amount and the compensation amount along with the amount of cost as referred to above, will bear interest @10% p.a till full realization thereof.
Let a certified copy of this order be given to the parties concerned free of cost at once by the Register-In-Charge of this Forum..
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