Date of filing: 11/09/2018
Judgment: Dt. 01/11/2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Smt. Sharmistha Dey U/s. 12 of the Consumers Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) alleging deficiency in service on their part.
The case of the complaint in short is that an agreement dated 24/04/2013 was entered into between the complainant and the opposite parties which was notarized on 16/05/2013 in respect of purchase of a flat as described in Schedule ‘B’ of the said agreement at a total consideration price of Rs. 12,50,000/-. Out of which complainant has already paid a sum of Rs. 10,00,000/- to the opposite parties. As per the agreement, the flat was to be handed over to the complainant within 30/08/2013 by opposite parties. But inspite of receiving 90% agreed consideration price, the OPs have not completed the flat neither handed over the same to the complainant. Opposite parties subsequently sent a letter to the complainant on 18/02/2017 asking her to choose some other flat in place of agreed flat since it was not possible for them to deliver the same citing some unforeseen circumstances. Complainant lodged a complaint before the local Police Station on 10/042018 but as no action was taken, the present complaint has been filed praying for directing the opposite parties to deliver the flat in question and to execute and register the Deed of Conveyance, in alternatively, to return the sum paid by the complainant alongwith interest from the date of the agreement @ 10% p.a., to pay compensation of Rs. 2,00,000/- and to pay litigation cost of Rs. 50,000/-.
On receipt of the notice, OP No. 2 only has entered appearance and filed a written version contending inter-alia that the OP has already refunded the sum of Rs. 9,00,000/- to the complainant. It is also contended that in effect he had taken loan of Rs. 10,00,000/- from the complainant and the agreement to sell the flat was only as security for the said loan amount. So the OP has prayed for dismissal of the case.
No steps have been taken by the OP No. 3 & 4, so the case has been directed to proceed exparte against them.
During the trial of the case, parties filed their respective examination-in-chief on affidavit followed by filing of questionnaire and reply thereto and ultimately arguments has been advanced. Brief notes of arguments has also been filed on behalf of the complainant and on behalf of the OP No. 2. So the following points require determination
- Whether there has been deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the relief as prayed for?
Decision with Reasons
In order to substantiate her claim, complainant has filed agreement for sale entered into between the parties on 24/04/2013 wherefrom it appears OP No. 2 being the proprietor of OP No. 1 and constituted Attorney of OP No. 3 & 4 the owners, agreed to sale the flat as described in the schedule ‘B’ of the said agreement at a settled price of Rs. 12,50,000/-. According to the case of the complainant, she has already paid Rs. 10,00,000/- out of the total sum of Rs. 12,50,000/- towards the purchase of the said agreed flat. On perusal of the written version it appears that OP has not disputed and denied the payment of Rs. 10,00,000/- by the complainant. Neither he has denied about the execution of the agreement dated 24/04/2013. The only contention which has been raised by the OP No. 2 is that he had taken loan from the complainant and towards the security, agreed to sell the said flat in favour of the complainant and thus accordingly an agreement was executed. It is also contended that he has already refunded the sum of Rs. 9,00,000/-. But in this context it may be pointed out that no documents has been filed by the opposite parties in order to substantiate his claim that he has already paid back Rs. 9,00,000/-. There is absolutely no material before this commission that such payment has been made by the opposite parties. Neither there is any material to show that the agreement was entered into between the parties as security towards the alleged loan taken by the complainant. On the contrary a letter has been filed by the complainant dated 18/02/2017 sent by the OP No. 2 as proprietor of the OP No. 1 to the complainant intimating that he was unable to handover the possession of the flat as per agreement to the complainant and he was ready to handover the flat to her in some other project. So the said letter clearly belies the case of the OP that the loan was taken or the sale of flat was just a security. In such a situation as admittedly neither the flat has been handed over to the complainant nor the money has been refunded, complainant is entitled to the relief as prayed for. She is also entitled to the compensation in case of refund of the sum in the form of interest which is the alternative prayer of the complainant.
Hence
Ordered
CC/548/2018 is allowed on contest against OP Nos. 1 & 2 and exparte against OP Nos. 3 & 4. OP Nos. 1 & 2 are directed to handover the possession of the subject flat as per agreement dated 24/04/2013 on payment of balance consideration price of Rs. 2,50,000/- by the complainant and all the OPs are directed to execute and register the Deed of Conveyance in favour of the complainant, within two months from this date. In alternatively OP Nos. 1 & 2 are directed to refund the sum of Rs. 10,00,000/- to the complainant alongwith interest on the said sum @ 10% p.a. from the date of last payment by the complainant i.e. 19/07/2013 to till this date within two months from this date failing which the entire sum shall carry further interest @ 10% till its realization.
The opposite parties No. 1 & 2 are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months.
