IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD AT BERHAMPORE.
CASE No. CC /175/2014.
Date of Filing: 10.12.2014. Date of Final Order: 05.04.2016.
Complainant: Amitava Kar, S/O Late Dipak Kar, 34/1, Babulbona Road. P.O. Berhampore,
P.O. Berhampore, Dist. Murshidabad.
-Vs-
Opposite Party: 1. Diganta Projects and 9 Others.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 196 praying for refund of Rs.2.40 lacs advance consideration plus interest @ 8% plus Rs.10,000/- process fees for loan for purchasing the flat which was cancelled for laches of OP and Rs.25,000/- towards compensation for mental pain and agony.
The complainant’s case, in brief, is that the complainant paid Rs.10,000/- in c ash on 13.01.14 and Rs.2,30,000/- by Cheque No. 9090 dt. 01.09.14 to the OP for purchasing a flat No. A-3 of the building “Prathan Diganta at a consideration money of Rs.13.70 lacs. Agreement for sale of that flat was executed on 02.09.2014 between the parties. The complaint paid Rs.10,000/- to LICI towards process fees for obtaining loan for the balance consideration money. After completion of construction within the stipulated period which the complainant went to OP for delivery of possession, the OP No.2 disclosed that the possession of the said flat has been delivered to third Party for few days and he assured that within a short period they would deliver the said flat and would be executed a sale deed in favour of the complainant. Thereafter, on 2.11.14 the complainant again requested OP to execute and regd. sale deed and for delivery of possession of the flat but the OP failed to deliver the possession of the said flat as the said flat has already been delivered to their party when the complainant was ready to pay the consideration money. Then, the complainant decided to cancel the agreement and informed the same to the OPs. Thereafter, the complainant informed the same to LIVCI and requested them to s top disbursement of loan in favour of LICI and then LICI deducted Rs.10,000/- towards process fees for laches of the OP. Then the complaint filed this complaint. Hence, the instant complaint case.
The written version filed by the OP, in brief, is that the OP has denied the allegation of the complainant categorically. As agreement for sale between the parties it was settled that the complainant will pay the balance consideration money to the OP within the stipulated period as per agreement dt. 2.09.14 but inspite of request for payment of balance consideration money the complainant did not pay the same and for such non-payment the agreement has been cancelled as per terms of agreement. Then the OP requested the complainant to take the advance price after deduction of 25% of the amount taken as advance as per terms incorporated therein but the complainant refused to accept the same so the claim of the complainant has already been waived and he has no right to claim such amount or to get relief as prayed for. The value of the entire building consisting of flats and garages are more than Rs.5 crores as such this court has no pecuniary jurisdiction to entertain this case. The complaint is liable to be dismissed. Hence, the instant written version.
Considering the pleadings of both parties the following points have been raised for the disposal of the case.
Point for consideration.
- Whether the case is maintainable in law and fact?
- Whether the complainant is barred by principals of waiver, estoppels and acquiescence.
- Whether the case is barred by limitation?
- Whether the complaint is bad for defect of parties?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with reasons.
Point Nos. 1 to 6.
All the points are taken up together for the sake of convenience.
This complaint is for refund of advanced consideration money for Rs.2.4 lacs plus interest plus Rs.10, 000/- process fees for getting loan and compensation of Rs.25, 000/-.
The complainant’s case is that the complainant paid in advance Rs.2.40 lac including Rs.10,000/- in cash booking price for purchasing the scheduled flat at a consideration of Rs.13,70000/- and for payment of balance consideration money the complainant applied for loan amounting to Rs.11,45,000/- and Rs.10,000/- was paid towards process fee. The agreement for sale was executed on 2.09.14. The construction was completed within the stipulated period. But, the possession of the flat was not delivered. As per terms of 6th Schedule the agreement final installments to be paid possession. While the complaint requested for delivery of possession the OP disclosed that the possession of the flat has been delivered to third party for few days and assured that within a short period the OP would deliver possession but ultimate in the 2nd week of November, 14 again the complaint requested the OP for delivery of possession but that OP failed to deliver possession to the complainant.. Then, the complainant decided to cancel the agreement and informed the same to the OP and asked for refund of the advanced amount already paid to OP for purchasing the said flat but in vain. Then, the complainant has filed this complaint.
On the other hand the OP’s case, in brief, is that in spite of OP has denied the allegation of the complainant categorically. As agreement for sale between the parties it was settled that the complainant will pay the balance consideration money to the OP within the stipulated period as per agreement dt. 2.09.14 but inspite of request for payment of balance consideration money the complainant did not pay the same and for such non-payment the agreement has been cancelled as per terms of agreement. Then, the OP requested the complainant to take the advance price after deduction of 25% of the amount taken as advance as per germs incorporated therein but the complainant refused to accept the same so the claim of the complainant has already been waived and he has no right to claim such amount or to get relief as prayed for. The value of the entire building consisting of flats and garages are more than Rs.5 crore as such this court has no pecuniary jurisdiction to entertain this case. The complaint is liable to be dismissed with cost.
This case being only for refund of the consideration money for purchase of a particular flat, the question of lack of pecuniary jurisdiction considering the total value of the building does not arise and as such this case is not barred by pecuniary jurisdiction. According this case is maintainable.
To prove the case complainant has adduced evidence on affidavit along with the relevant documents in support of his case including the Xerox copies of Deed of agreement, document showing approval of loan amounting to Rs.11, 45,000/- , charging process fees of Rs.10, 000/- by LIC Housing Finance Ltd. and money receipts of Diganta Projects showing payment of Rs.10, 000/- and Rs.2, 30,000/- to the OP which were received by R. Bhaduri –OP No.4.
In this particular case both parties are disputing that for non-compliance of the terms of the agreement, the agreement has been cancelled.
According to the complainant possession being not delivered by the OP, the agreement has been cancelled.
On the other hand according to the OP for non-payment of balance consideration money in spite of several requests the agreement has been cancelled and then as per terms of the OP requested the complainant o take the advance price after deduction of 25% of the same but for refusal to accept the same the complainant has waived such claim and for that the complainant is not entitled to get any relief.
In reply to the OP’s case the ld. lawyer for the complainant has advanced argument that there is no question of final payment of balance of consideration money as possession of the flat was not delivered to the complainant.
In this regard the Ld. Lawyer for the complainant has further advanced argument that onus is upon the OP to show that OP tendered possession.
He has advanced argument that no notice for delivery of possession was given by the OP to the complainant.
He has also argued that as possession was not delivered to the complainant, there is no question of further payment of balance consideration money.
On the other hand, the ld. lawyer for the OP has advanced argument that after expiry of scheduled date of competition of construction on 30.09.2014, as per terms of argument for sale, the complainant ought to service noticed showing readiness and willingness for delivery of possession and for registration of sale deed.
In this regard the Ld. Lawyer for the complainant has filed the approved letter of the Bank showing sanction of the loan and process fees paid for Rs.10, 000/- towards such loan transaction.
In this case, both parties have claimed termination of agreement for non-compliance of terms of agreement against each other.
To decide this particular case whether the complainant is entitled to get his claim for refund of the entire amount paid with interest and compensation for non-delivery of possession.
Admittedly, possession of the flat in question as per terms of argument for sale has not been delivered to the complainant.
It is also admitted that the construction of the second scheduled property i.e. the impugned flat of the building “Prathan Diganta” was completed with the statuary period which is 30.09.14 as per Agreement for Sale.
In this case both the parties have adduced evidence on affidavit.
The complainant’s case is that OP has already delivered possession of the impugned flat to a third party.
In this regarded OP has not adduced any evidence rebutting the complainant’s case that the impugned flat is lying vacant.
Admittedly, the total consideration money of the impugned flat is Rs.13.70 lacs and that the complainant purchased paid Rs.2.40 lacs to the OP (Rs.10, 000/- booking money and Rs.2.30 lac the last installment).
Point No. 6 of the Terms of agreement is as under:
“That the balance consideration of the second schedule property shall be paid by the purchaser to the first part as per chart mentioned in Sixth Schedule below” which proves that final installment means the balance consideration money is to be paid on possession.
The terms of payment of balance consideration money as per Sixth Schedule of the Agreement for sale is to be paid on delivery of possession.
In this regard the OP’s case as well as the argument of the Ld. Lawyer for the OP is that the complainant has not paid the balance consideration money in spite of repeated request and for that the question of delivery of possession does not arise and for that non-payment the agreement stands cancelled.
As per sixth schedule of the agreement for sale as to payment of final installment it is clear that payment is to be made on possession which means that both delivery of possession and final payment should take place simultaneously.
There is no document or cogent evidence on the part of the OP to the OP tendered possession of the impugned flat to the complaint for delivery and asked for payment of balance consideration money.
Regarding cancellation of agreement for sale from the side of the OP Partners of the Terms for Agreement for sale provides as under:-
“If the purchaser fails to pay the balance consideration money of the proposed Second Scheduled property as per chart mentioned in Sixth Schedule below then the first part has the liberty to cancel the present agreement by giving one month notice upon the Purchaser and first part will re fund the amount to the purchaser after deduction 25% of the amount already paid and the first part has also the liberty to sell out the proposed second schedule property to anybody at its Sweet Will.
In this case no such notice has been filed by the OP.
On the other hand the complainant has filed the relevant document of LIC HFL showing sanction of Loan amounting to Rs.11.45 lacs and application for such loan before LIC HFL.
Also, the OP has not filed any such document before this Forum to establish their case as to waiver of the claim of refund of money already paid by the complainant deducting 25% of the same as per terms of agreement.
There is no document to show that the OP gave one month notice and also requested the complaint tendering the money amounting to Rs.2.40 lacs deducting 25% of the same.
Mere oral evidence as to repeated request for refund of money already received will not serve the purpose.
On the other hand the complainant has adduced evidence to the effect that possession being not delivered rather delivered to their party he stopped payment of sanctioned loan of Rs.11.45 lacs.
From the unrebutted Xerox copies of money receipts filed by the complainant it is clear that the OP No.4 /R. Bhaduri received Rs.10,000/- and Rs.2.30 lacks from the complaints for booking and installment of consideration money respectively under Diganta Project on behalf of the said Firm.
Considering the above discussion we can safely conclude that the complainant is entitled to get refund of Rs.2.40 lacs plus interest @ 7% and compensation of Rs.5, 000/-.
On the basis of above discussion we find that all these points are disposed of in favour of the complaint in part and as such the complainant will get back Rs.2.40 lacs plus interest @ 7% p.a from the date of payment till realization plus compensation of Rs.5,000/- and all the OPs are jointly and severally liable to refund the money amounting to Rs.2.40 lacs alongwith interest and compensation as awarded.
Hence,
Ordered
that the Consumer Complaint No. 175/2014 be and the same is hereby allowed in part on contest . All the OPs are jointly and severally liable to refund the money amounting to Rs.2.40 lacs being received by OP No.4, the same is to be refund by OP No.4 to the complaint along with compensation.
All the OPs are directed to Pay Rs.2.4 lacs plus interest @ 7% p.a from the date of payment till realization plus compensation of Rs.5, 000/- to the complainant within 60 days from the date of this order, failing which the OPs are to pay Rs.100/- for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER MEMBER PRESIDENT
