SAMIKSHA BHATTACHARYA, MEMBER
The Complainant has filed the instant case U/S 17 of C.P.Act, 1986 alleging deficiency in service against the OPs.
The facts of the case, in brief, are that OP No. 1 is the absolute owner in respect of the land measuring about 4 cotthas one chhittaks 39 sq.ft. more of less situated at 23/11 Naktala Road, P.S. Jadavpur, now Netaji Nagar, Kolkata – 700 047, KMC Ward No. 100, comprising in Dag No. 150 & 151, appertaining to Khatian No. 206, mouza Naktala, J.L. No. 32, R.S. No. 24, touzi No. 56 district South 24 Parganas. The OPs No. 2 to 4 are the developers . The OP No. 1 being the landowner entered into a development agreement with the Ops No. 2 to 4 on 1.12.2010 for construction of a multi-storied building over the said plot of land. OP No. 1 also executed and registered power of attorney on the same date in favour of OP No. 3 & 4 being the Developers. OPs No. 2 to 4 entered into an agreement for sale with the complainant on 16.09.2011 for sale and transfer in respect of a flat measuring about 950 sq.ft. more or less on the 1st floor north east facing being flat no. 2 alongwith one car parking space together with undivided proportionate share of land and building at a total consideration of Rs. 23,00,000/-. The complainant paid Rs. 4,60,000/- at the time of execution of sale agreement. The complainant has applied for a home loan to SBI, Banshdroni Branch /OP No. 5 for Rs. 18,40,000/- for purchasing the flat and car parking space. On 30.03.2012 the load was sanctioned and Rs. 18,00,000/- has been disbursed in the account of developers. The complainant is paying EMI @ Rs. 18928/- p.m. against the loan amount to OP No. 5. The original sale agreement dated 16.09.2011 is lying with SBI, RACPC, South Kolkata Branch. In terms of the said agreement complainant has paid Rs. 22,60,000/- by paying the booking amount on 13.04.2011 and 16.09.2011. Thereafter, on 05.10.2015 , the OPs 3 & 4 requested the complainant to pay Rs. 3,00,000/- as stamp duty , registration fees, advocate fees, and conveyance charges for execution of the final Deed of Conveyance and the developers promised that they would hand over the possession and execute the final Deed of Conveyance in favour of complainant within 7 days. On good faith complainant paid Rs 3,00,000/- on 07.10.2015 for the purpose of registration. Thereafter on several occasions complainant requested the OPs 2 to 4 to handover the possession of flat and car parking space in favour of the complainant but the OP 2 to 4 failed and neglected to handover the possession and did not register the Deed of Conveyance. In the first week of May, 2016 complainant again requested the OPs 2 to 4 for same but the Ops 2 to 4 took the plea that the completion certificate of the building is in process before the KMC and the Ops 2 to 4 again undertook to hand over the possession and execute the final Deed of Conveyance in favour of complainant within December, 2016.
On 02.01.2017 the Complainant visited the office of the Developer and the Developer promised the Complainant to handover the possession of the flat and execute the Deed of Conveyance in favour of the Complainant within May 2017 positively. On 04.05.2017 the Complainant first time came to learn that the OPs No. 2, 3 & 4 have transferred Rs. 50,000/- by Money Transfer in the loan account of the complainant lying with SBI, Bansdroni Branch/ OP No. 5 without intimating the Complainant. Then the Complainant came to know that the OPs No. 2, 3 & 4 transferred the second schedule flat and car parking space in favour of Third Party illegally and arbitrarily. When the Complainant visited the office of the Developers/ OPs No. 2, 3 & 4 the Developer told the Complainant that they have transferred the second schedule flat and car parking space to Third Party with higher value. After a long discussion the OPs No. 2, 3 & 4 have agreed to compensate some amount to the Complainant and issued a cheque amounting to Rs. 35 lacs in favour of the Complainant in the following manner :
- Cheque No.920308 dated 05.05.2017 drawn on SBI amounting to Rs. 9 lacs
- Cheque No. 920309 dated 20.05.2017 drawn on SBI amounting to Rs. 9 lacs
- Cheque No.920310 dated 16.06.2017 drawn on SBI amounting to Rs. 9 lacs
- Cheque No.920311 dated 30.06.2017 drawn on SBI amounting to Rs. 8 lacs
At that time OPs No. 3 & 4 told the Complainant they have insufficient fund in their bank account and requested the Complainant to drop the cheque when they would inform. The OPs No. 3 & 4 assured the Complainant that the cheques would be cleared within July 2017. The Complainant hoped that he would get alternative flats in the same premises and did not deposit the cheque for encashment and waited to get a flat. Again on 30.10.2017 the OPs No. 3 & 4 transferred Rs. 50,000/- in the SBI Account of the Complainant. Again the OPs No. 3 & 4 assured that they would transfer the rest amount in the Complainant’s account within two days and Complainant need not to deposit the aforesaid cheques. The Developers also agreed to receive the paid amount at the time of delivery of the alternative flat. Since the Developers failed to arrange alternative flat to the Complainant or refund the money the Complainant lodged a written complaint dated 06.01.2017 against the Developer at the local police station, Commissioner of Police and Deputy Commissioner of Police. The Developers further transferred Rs. 50,000/- and Rs.50,000/- on 16.11.2017 and 22.11.2017 to the Complainant’s SBI Account at Mecheda. Complainant filed a complaint being No.1070 of 2017 u/s 156(3) of CRPC on 16.11.2017 before the Ld. ACJM at Alipore and Ld. ACJM allowed the same and accordingly Jadavpur Police Station lodged FIR being No. 375 dated 13.12.2017 u/s 406 /417/420 /506/34 IPC against the Developers. The said case is still pending before the ACJM at Alipore. The Developers further transferred Rs.2,00,000/- each of Rs.50,000/- on 17.01.2018, on 01.102.2018, on 21.02.2018 and on 21.05.2018 in the SBI, Mecheda Branch Account of the Complainant without taking the consent from the complainant. After repeated request lastly on 30.01.2018 the Complainant requested the Developers either to deliver the alternative flat or refund the balance amount of Rs. 21,60,000/- in favour of the Complainant. But the Developers did not pay any heed. The Complainant is paying Rs.18,928/- p.m. to the Bank for Home Loan instead of enjoying and occupying the flat and car parking space. The Complainant has been suffering mental pain and agony with his family members for which he is entitled to adequate compensation to the tune of Rs.10,00,000/-. Finding no other alternative, the Complainant filed the instant complaint praying for direction upon OPs to deliver alternative flat in the same premises with same specification of earlier flat and car parking space after receipt of refund amount of Rs.4,00,000/- from the Complainant and execute the Deed of Conveyance in favour of the Complainant. In default, to refund the balance consideration of Rs. 21,60,000/- along with interest @ 18% p.a. to the Complainant within a specified period of time. Complainant also prayed for direction upon OPs to pay Rs.10,00,000/- as compensation and to pay EMI amount of Rs. 12,11,392/- ( Rs. 18, 928/- x 64 months ) already paid by the Complainant to the Home Loan Account till February 2019 and interest thereon at the rate 18% p.a. and litigation cost of Rs.50,000/-.
None appeared on behalf of OP No. 1 and OPs No. 2,3 & 4. Therefore, the case was heard against Ops NO. 1,2 3 & 4.
Only OP No. 5 /Bank appeared before this Commission and filed their written version. In their written version OP No. 5 stated that the Bank has been impleded as Proforma Opposite Party and no relief has been prayed from them. It is true that the complainant took a house building loan from SBI for the purpose of purchasing a flat and complainant has undertaken to create equitable mortgage of the said flat by delivering the original title deed after registration of the said flat as primary security against the said loan. Complainant deposited the original sale agreement date 16.09.2011 with the Bank but till date the original sale deed has not been deposited by the Complainant to the Bank. The OP No. 5 already disbursed the load amount in favour of the developers as per the instruction of the complainant and thus the OP has taken charge over the said flat measuring about 950 sq.ft. situated at 23/11 Naktala Road, P.S. Jadavpur, now Netaji Nagar, Kolkata – 700 047, KMC Ward No. 100, comprising in Dag No. 150 & 151, appertaining to Khatian No. 206, mouza Naktala, J.L. No. 32, R.S. No. 24, touzi No. 56 District South 24 Parganas. OP No. 5 is a nationalized bank and the loan amount is granted to the complainant is public money which he is repaying, if the prayer of the complainant is allowed by the Commission this Proforma OP has no objection to the extent that the parties be directed to create the equitable mortgage of the flat which the developer would register and deliver possession in favour of the complainant. Registration should be carried out in the presence of the bank officials with further direction to deliver the original IGR/Sale deed in favour of the bank and if the developers are directed to refund the entire consideration to the complainant , in that case the parties be directed to first clear the outstanding dues of the bank against the loan facility sanctioned and then to give the remaining to the complainant.
On the date of final hearing, only the Learned Advocates on behalf of the complainant and OP No. 5 were present before this Commission. Ld. Advocate for the complainant has submitted that complainant entered into an agreement with the OPs No. 2, 3 & 4 /developer and OP No. 1 being the land owner to purchase a flat being no. 2 along with one car parking space from the OPs 2,3 & 4. The complainant has annexed the agreement for sale as running page 32 with the petition of complaint. The complainant has annexed all the money receipts issued by the OPs No. 1,2 & 3 to purchase the flat in question. The complainant has stated that he has paid Rs. 21,60,000/- to the OPs No. 2, 3 & 4.
Ld. Counsel for the OP No. 5 has submitted that there is no dispute that the complaint has availed the bank loan from them and accordingly complainant deposited the original sale agreement before the bank. The original sale deed has not been deposited since it has not been registered till date. OP No. 5 has been made as proforma OP and no relief has been sought from them. OP No. 5 has also submitted the complainant is paying the EMI regularly against his housing loan for the flat in question.
Upon submission of the Ld. Advocates for the complainant and OP No. 5 and on perusal of the record , it is evident that complainant entered into an agreement for sale with the OP No. 1 and OPs No. 2,3 & 4 on 16.09.2011. At the time of executing the Agreement for Sale the complainant paid Rs. 4,60,000/-. Upon submission of the Ld. Counsel on behalf of the OP No. 5, there is no dispute that the complainant availed the bank loan from OP No. 5 and the bank has disbursed Rs.18,00,000/- in favour of OPs No. 2,3 &4 for the flat in question for which the complainant entered into the agreement with the OPs 1,2,3 & 4. The complainant has waited a long for his dream home but the OPs only assured him to give the alternative flat and took several pleas such that complainant can wait for a long. But ultimately OPs No. 2,3 & 4 neither delivered the flat nor refunded the amount taken from the complainant. So, there is gross negligence and deficiency in service on the part of the OPs no. 2,3, & 4 being the Developing Company and its Developers. The complainant is paying EMIs regularly but the deliver and registration of the office flat never comes into reality for which the complainant is suffering a lot. The evidence on affidavit has not been challenged by the developer company and the developers i.e. OPs No. 2,3 & 4. Due to unchallenged testimony we have nothing to disbelief the documents filed by the complainant. In the case of Fortune Infrastructure & Anr. Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442 the Hon’ble Apex Court has clearly held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and he can seek refund along with compensation. In the case of Bangalore Development Authority Vs. Syndicate Bank 2007 (6) SCC 711, the Hon’ble Supreme Court also held that when possession is not delivered within the specified time, allottee is entitled for refund of the amount with reasonable interest from the date of payment till refund. In the instant case the OPs 2,3 & 4 not only delivered the flat in question but surprisingly they have refunded the amount to the tune of Rs.4,00,000/- to the complainant’s account without intimating the complainant. Moreover, OPs 2,3 & 4 gave the assurance that they would give the alternative flat to the complainant since the flat in question, for which they entered into the agreement for sale with complainant, was sold to the third party. The complainant has waited the long for getting the alternative flat. The Developers never offered any possession to the complainant rather hold a lump sum amount of the complainant without assigning any definite reason for years after years. The complainant has stated in para No. 12 that on 4.5.17 Developers have transferred in his home loan account lying with SBI, Bansdroni Branch by money transfer. Thereafter, the complainant has stated in para 15 that on 30/10/2017 Developers have again transferred Rs.15,000/- in his account. In para 17 complainant has mentioned that Developers have further transferred Rs.1,00,000/- each of Rs.50,000/- on 16/11/2017 and on 22/11/2017 in his account lying with SBI, Mecheda Branch. In para 19 of the petition of complaint complainant has stated that the Developers have further transferred Rs.2,00,000/- each of Rs.50,000/- on 17/01/2018, 01/02/2018, 21/05/2018 & on 21/05/2018. Therefore, out of paid amount of Rs.22,60,000/- by the complainant the Developers have refunded only Rs.4,00,000/-.
Now the question is whether the OP No. 1 is liable to refund any amount to the complainant. Since, OP No. 1 is the land owner and complainant has not paid any amount to him he is not liable to refund any amount. The OP No. 1 has been impleded as a party since he is the landowner and in case of registration he would be necessary party. Here, the OP No. 3 & 4 received all the amount from the complainant on behalf of the OP No. 2, therefore, OPs No. 2, 3 & 4 are liable to refund the amount to the complainant. The bank loan has been disbursed in favour OPs No. 2,3 & 4. Therefore, the complainant is entitled to get relief from Ops No. 2,3 & 4.
As a result, the complaint succeeds.
Hence,
ORDERD
The Complaint being No. CC/133/2019 is allowed ex parte against OPs No. 2,3 & 4 with cost and dismissed against OP No. 1 ex parte and dismissed against OP No. 5 on contest.
OPs No. 2,3 & 4 are directed to refund Rs. 18,60,000/- ( Rupees eighteen lakh sixty thousand) only along with interest @ 8% per annum in the form of compensation from the date of respective payment till the date of realization to the complainant within 60 days from the date of order.
OPs No. 2, 3& 4 are also directed to pay litigation cost of Rs. 10,000/- (Rupees ten thousand)only within the aforesaid stipulated period.
If OPs No. 2,3 & 4 fail to comply with the aforesaid order, the complainant is at liberty to put the decree into execution.
The complaint case is disposed of accordingly.
