MRS. FIROZA KHATOON, PRESIDENT
The complainants filed this case against the opposite parties stating that the opposite parties have constructed a multi storied building as developer at Tarakeswar Municipal Bus Terminal-I on land measuring about 42 decimals, Mouza Bhata, R. S. Plot no.681, 682 corresponding to LR plot no. 1104 and LR plot no.1105 under LR Khatian no.3678, JL no.21 under P.S. Tarakeswar, District- Hooghly with a right to dispose of the developed area to the prospective buyer as per the agreement dated 22.02.2013, registered on 27.02.2013 before ADSR Tarakeswar in Book no.I, CD Volume no.2, Pages 2155 to 2198 being no.000477 for the year 2013. The complainant booked a flat being no.68 on the 9th floor in block-‘E’ measuring about 720 sq. ft. including super built up area of the said project on payment of Rs.1,00,000/- + 30,000/- (Rs.15,000/- refundable after final Sale Deed and possession) only in cash against money receipt no.28 dated 18.07.2015. The total consideration amount of the flat was Rs.18,00,000/- (Rupees eighteen lakh) only. The complainant paid the entire consideration amount partly in cash and partly by way of loan to the opposite parties. In receiving the amount the opposite parties executed and registered a Deed of Sale of the said flat in favour of the complainant on 22.02.2021. According to the complainants they have discharged their liability to pay the consideration money but the obligation of the opposite parties is questionable as the liability to deliver a habitable possession of a fully completed flat with proper sanitation has not yet been compiled with. The opposite parties have delivered the possession with damaged damp walls and water seepage on most of the parts of the flat. Subsequently the complainants undertook the repair work for which a sum of Rs.60,000/- (Rupees sixty thousand) only expenses incurred which is lying unpaid by the opposite parties. Moreover, the complainants requested the opposite parties to refund the extra amount of Rs.2,72,500/- (Rupees two lakh seventy two thousand five hundred) only which was paid by the complainants accidentally to the opposite parties but till date the opposite parties deliberately not refunded the same. According to the complainants the opposite parties are liable to refund the extra amount paid by them with interest and compensation due to deficiency in service and incomplete work of the flat and other expenses.
Therefore, the complainants filed this case praying for compensation to the tune of Rs.4,92,500/- (Rupees four lakh ninety two thousand five hundred) only in view of paragraph 15 of the complaint application.
On scrutiny of the record we find that after service of notice the opposite parties appeared on 07.04.2022 through their Advocate but did not care to file any written version in the case.
Point for determination
- Are the complainants consumers in terms of Consumer Protection Act, 2019?
- Have the complainants any cause of action to file the case?
- Are the complainants entitled to get any relief as claimed for?
Decision with reason
In order to proof the case, the complainants have filed affidavit in chief along with documentary evidence. Photo copy of agreement for development between the Tarakeswar Municipality and the opposite parties is marked document-1. Photo copy of the registered Deed of Sale dated 23.02.2021 executed by Tarakeswar Municipality and opposite parties in favour of the complainants is marked document-2. Photo copies of 5 (five) money receipts issued by opposite parties are marked document-3 series collectively.
Point nos.1 to 3
For the sake of brevity and convenience all the above three points are taken up together for convenience and discussion.
The agreement for sale dated 23.04.2020 was signed by opposite party no.2 and complainant no.2 but o specification of the proposed flat to be purchased is mention in the schedule of the agreement for sale dated 23.04.2020. Therefore this agreement for sale dated 23.04.2020 executed between the opposite parties and complainant no.2 cannot be considered as agreement for sale of the flat which is subject matter of this case.
On careful scrutiny of the complaint application as well as evidence and registered Deed of Sale dated 22.02.2021 (document-2), it is crystal clear that the complainants had purchased a flat in a project named ‘Tarakeswar Height’ after completion of its construction. It is evident from the Deed of Sale dated 22.02.2021 that the opposite parties declared to sell a complete flat mention in ‘B’ schedule of the Deed. There is no mention of agreement for sale dated 23.04.2020 in the deed of conveyance dated 22.02.2021. The complainants categorically stated that they have paid the entire consideration amount to the opposite parties and the opposite parties executed the registered Deed of Conveyance on 22.02.2021 in their favour and they are in possession of the said flat.
In view of the above fact, it is crystal clear that at present is no privity of contract is in existence between the parties to the case after the execution of the Deed of Conveyance dated 22.02.2021 and receiving possession of the flat. There is no allegation against the opposite parties that they have not provided with any possession certificate or completion certificate of the building. The only allegation they made in their complaint application that the opposite parties handed over a damped walls flat to them with other deficiency in the work of construction which is contrary to their own document i.e. (document-2). Moreover, the instant case has been filed after receiving possession of the flat and execution of the Deed of Conveyance in favour of the complainants. Moreover, the complainants outright purchased a complete constructed flat as mentioned in the Deed of Conveyance.
Therefore, we do not have any hesitation to hold, under the present facts and circumstances, the complainants are ceased to be Consumers in terms of Consumer Protection Act, 2019. The relief if any of the complainants lies with the Civil Court.
In our considered view the complainants are not Consumers in terms of the Consumer Protection Act, 2019. Therefore they are not entitled to any relief as claim for.
Having considered the discussion made above, we are of the opinion that the complaint case is liable to be dismissed.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed ex-parte without cost.
Dictated by the
…....................
President
