Consumer Complaint No.103 of 2015
Date of filing: 17.04.2015 Date of disposal:25.11.2016
Complainant: Manoranjan Sinha, S/o. Sri Krishna Prasad Sinha, resident of 18/3 Ranapratap
Road, A-Zone, Sub-division & PS-Durgapur, Dist.-Burdwan, Pin-713204, W.B.
-VERSUS-
Opposite Party: 1. Durgapur Real Estate Pvt. Ltd., having its office at NH-2, G.T.Road,
Muchipara, Durgapur-713212, District-Burdwan.
2. Subodh Kumar Dutta, Director of Durgapur Real Estate Pvt. Ltd., having its
office at NH-2, G.T. Road, Muchipara, Durgapur-713212, Dist.-Burdwan.
Present : Hon’ble President: Sri Asoke Kr. Mandal
Hon’ble Member : Smt. Silpi Majumder
Appeared for the Complainant: Ld. Advocate, Sougata Dey.
Appeared for the Opposite Party: Ld. Advocate, Debjyoti Banerjee.
JUDGEMENT
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs after cancelling the allotment in respect of the flat in question did not take any initiative to refund the amount as paid by him towards consideration of the respective flat as per the terms and condition of the agreement for sale along with interest.
The brief fact of the case of the Complainant is that being attracted with the advertisement of the OPs in the newspaper and internet he approached before the OP-2 expressing his desire to purchase a flat. Being satisfied with the conversation he agreed to purchase a flat from the OPs. Accordingly both parties have entered into an agreement for sale in the year 2010 and the OPs promised to sell the respective flat as described in the schedule-A of this complaint against payment of consideration amount of Rs.16,70,070/-. As per the agreement the Complainant started to pay the monthly installments for the said flat to the OPs and after making payment of Rs.11,50,000/- he expressed his willing to the OP-2 to purchase a flat on the 7th floor of the same building, which is better according to him than the earlier. Be it mentioned that earlier he booked the flat on the 3rd floor of the same building. The OP-2 consented and promised the Complainant to change the agreement and ultimately the same was changed and fresh and new agreement was executed in respect of the flat situated on the 7th floor of the same building instead of the 3rd floor. The OP-2 also kept his promise to allot one flat on the 7th floor in front of one Mr. Rabishankar Bose. It was further promised by the OP-2 that he will deliver a copy of the new and fresh agreement for sale along with all necessary documents to him after fulfilling legal formalities. But after lapse of several months the Complainant got some fishy smell in the behavior of the OP-2 as he neither supplied any documents in respect of the flat situated on the 7th floor of the building nor transfer the said flat to him. The Complainant requested the OPs on several occasions and as they did not take any initiative as aforementioned he stopped the payment of outstanding amount to the OPs and wanted to know their clarification regarding non-supply of the copy of the agreement for sale in respect of the flat on the 7th floor along with other necessary documents, but no reply were given by the OPs to him. The Complainant sent several e-mail on 03.06.2014, 11.06.2014 and 23.06.2914, but to no effect. Surprisingly the OPs sent a cancellation letter through e-mail on 27.05.2013 through one Rajesh Roy of Sonar Bangla, Durgapur Real Estate and according to the Complainant the cancellation was made illegally inspite of knowing the fact that the Complainant had already paid a sum of Rs.11,50,000/- to the OPs. Thereafter the Complainant on several occasions requested the OPs either to refund the amount as paid by him or provide him the flat on the 7th floor of the said building, but the OPs did not pay any heed to his request. The Complainant sent legal notices to the Ops through his Ld. Advocate, but the OPs did not bother to reply the same till filing of this complaint. At this juncture the copy of the new and fresh agreement regarding the 7th floor is in the custody of the OP-2 and he is not providing the same to him inspite of several requests. As his grievance have not been redressed by the OPs, hence finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to refund him the amount of Rs.11,50,000/- as paid by him towards consideration of the flat value, Rs.3,00,000/- due to harassment, Rs.3,00,000/- for loss incurred for non-delivery of the flat, Rs.1,20,000/- as charges for mental agony and litigation cost of Rs.30,000/- to him.
The petition of complaint have been contested by the OPs by filing written version contending that the Complainant had initially applied for a flat at the third floor of the concerned apartment on 29.01.2010 and deposited the application money of Rs.51,000/- on that date. Subsequently he changed his option and preferred for the flat at 7th floor of the self same apartment. The change was noted down in the self same application form subsequently. According to the consent, approval and acceptance of the Complainant a back dated provisional allotment was issued to him with the date conquering with the provisional allotment of the flat at the third floor i.e. 10.02.2010. The sale agreement was also accordingly converted as per the knowledge, consent approval and acceptance of the Complainant dated 21.05.2010 with the signature of the Complainant as also the OPs. A copy of the said agreement was provided to the Complainant. On 21.05.2010 the Complainant agreed to pay a sum of Rs.2,74,080/- and in August a sum of Rs.1,37,041/- The construction work was going on as per schedule and not only that it reached its respective stages of structure even in advance date. But the Complainant only paid a sum of Rs.2,74,000/- in the first installment on 24.08.2010, but did not pay the amount of Rs.1,37,041 in the month of August as per agreement. He paid a sum of Rs.2,50,000/- in the month of November, 2011. Thereafter he made further payment of Rs.1,21,000/- on the last part of November, 2011, Rs.3,00,000/- at the end of 2011. In this manner up to 27.02.2012 he paid a sum of Rs.11,50,562/- in total and thereafter no payment was made by the Complainant. On 04.08.2011 the Complainant sent a letter to the OPs requesting for some modifications in the size of the windows in the bed rooms and living rooms. In the said letter reference was mentioned of the flat of the 7th floor measuring 1074 sq.ft. and provisional allotment dated 10.02.2010. On 15.08.2012 the OPs invited all the allottees in a lunch at the said said complex and at that point of time excepting some finishing works the entire apartment was fully constructed. The OPs started to provide possession to the purchasers in their respective flats after execution of the deed of conveyance in their favour. After completion of minor balance works completion certificate was also issued. In the lunch/function the OPs requested the allottees, who attended, to make payment of their respective balance amount and finalize the process of sale and take delivery of possession. Subsequently demand notices were also issued to the allottees having dues. The OPs sent demand notice to the Complainant for making payment of the balance amount of Rs.6,19,508/-. The demand notices were sent to him on 17.08.2012, 03.11.2012, 17.01.2013 and 08.02.2013. Though the notices were issued at the address of the Complainant given and mentioned by him in the application letter, but those were returned as unserved. For a long period of about 15 months from 27.02.2012 the Complainant did not make any contact with the OPs and also did not pay any further amount. For this reason on 27.05.2013 the allotment of the Complainant was cancelled. The cancellation was duly through an e-mail to the Complainant on 27.05.2013 and the same was also notified by affixing at the gate of the Sonar Bangla complex. Thereafter the Complainant took the plea that due to non-supply of the copy of the agreement; he did not make any payment. The Complainant has further alleged that the flat had some deficiency and for this reason also he stopped payment. He had made allegation that as there was no completion certificate in respect of the said project the terms and conditions of the said allotment is void. Mentioning such allegations the Complainant issued an e-mail on 27.05.2013 after receipt of the e-mail of the OPs. The OPs have stated that such allegations made by the Complainant were out and out false and the OPs immediately denied the allegations of the Complainant through a return e-mail, which was sent on 28.05.2013. The OPs have categorically denied the allegation of non-supply of the copy of the agreement for sale to the Complainant and for the first time the Complainant had alleged any deficiency in service in respect of the allotted flat. The Complainant was requested by the OPs to visit the office of the OPs on the next date, but the Complainant answered that he was out of station and made a plea that the OPs should send a draft copy of the sale agreement so that he may make necessary correction and then only he will visit the office of the OPs. The Complainant also took exception to the notification of cancellation on the gate of the Sonar Bangla Premises and threatened that he will take legal action against the OPs. Thereafter the Complainant went on sending several e-mails thereby pretending that he will make payment and finalized the deal but as a matter of fact he did not make any payment at all and even did not take any positive step. Though the Complainant had failed to abide by the terms and conditions of the agreement, the OPs waited for a long period. As the terms and conditions were within the knowledge of the Complainant and he did not make payment of the due installments, the OPs finding no other alternative cancelled the allotment of the Complainant in respect of the questioned flat. After cancellation the Complainant had never prayed for refund of the deposited amount, rather he showed his gesture that he is willing to get the said flat upon making payment of the balance payment, but actually he did not take any step after 27.02.2013. The OPs have further mentioned that the OPs have already invested the entire money and the flat was completed long ago. The capital was lying blocked. Market price is hiking day by day. Commitments made by the OPs for payment to the persons from whom they procured men and materials etc failed, which affected the goodwill and reputation of the OPs. Ultimately the OPs have transferred the concerned flat as well as the car parking space to one Shimanta Mitra and Arpita Mitra vide sale deed in the month of March, 2015. The OPs have ascertained that the Complainant had also purchased a flat in the second floor of the self floor of the self same apartment from it owner about one year and six months ago. According to the terms and conditions of the agreement for sale of the concerned flat which was duly signed by the Complainant and which were within the knowledge of him, the OPs are entitled to get 5% of the sale value of the concerned flat after cancellation and also 18% as late payment. The OPs are also entitled to claim interest on the due amount @18% p.a. for not only up to two months delay from the respective due date but also beyond that date if the delay continues. Moreover due to business loss, capital blockage, loss of goodwill, litigation cost and other accounts the OPs have suffered loss. The Complainant has filed this complaint with a view to grab some money from the OPs through an illegal manner. Between the provisional allotment of the flat to the Complainant and the ultimate sale of the flat to some other parties in March, 2014, there is long gap of 4 years. Between the last payment made by the Complainant and the cancellation of allotment there is gap of 15 months and between cancellation of allotment and sale to the third party there is gap of 8 months. The cost of construction of the flat is more than what the Complainant paid at every stage. Moreover, due to such legal proceedings the OPs had to incur further expenses. Taking into account all the parameters including the terms and conditions of the sale agreement and also the general law of the land and loss suffered by the OPs due to the Complainant, the Complainant is not entitled to get any refund or any relief as sought for. As there was no deficiency in service as well as unfair trade practice of the OPs, the OPs are not liable to pay any amount towards compensation as claimed by the Complainant. According to the OPs the instant complaint is liable to be dismissed.
The Complainant has adduced evidence on affidavit along with some papers and documents in support of his contention. The OPs have prayed for treating their written version as their evidence and in our view as the written version of the OPs is supported by affidavit; the same is treated as their evidence. The Complainant has filed written notes of argument. So the Complainant did not advance any oral argument. Prayer was made by the Complainant to treat his WNA as his argument. The OPs have submitted some documents by way of firisty. The Ld. Counsel for the OPs has placed reliance on some Rulings. As during argument the Ld. Counsel for the Complainant was not available, copy of the same could not be served upon him by the OPs.
We have carefully perused the entire record; documents and papers submitted by the contesting parties in support of their respective contentions, considered the WNA filed by the Complainant and heard argument at length advanced by the Ld. Counsel for the OPs. It is seen by us that there are some admitted facts in the case in hand i.e. The Complainant applied for a flat at the third floor of the concerned apartment namely Sonar Bangla Premises on 29.01.2010, he deposited the application money of Rs.51,000/- on the said date, he entered into an agreement for sale with the OPs for purchasing the said flat on the third floor, subsequently he changed his option from third floor to seventh floor of the same apartment and building, new and fresh agreement for sale was executed by and between the Complainant and the OPs, there are some terms and conditions in the sale agreement, both parties have accepted the same by putting their respective signatures and hence are bound to abide by the same entirely, the value of the said flat was for Rs.16,70,070/-, out of which the Complainant paid a sum of Rs.11,50,000/- through several installments, as per the agreement for sale the Complainant was under obligation to make payment of the installments within due period, it is mentioned in the terms of the agreement that in case of delay payment of any installments the OPs are empowered to charge penal interest @18% p.a., after making payment of some installments the Complainant stopped to make any payment towards installments, the OPs have made written correspondences with the Complainant requesting and directing him to make payment, the Complainant did not pay any heed to such request, the Complainant did not make any contact with the OPs, till 27.02.2012 the Complainant paid the aforementioned amount of Rs.11,50,000/- and after 27.02.2012 till filing of this complaint or 27.05.2012 no payment was made by him towards consideration amount, ultimately and having no other alternative the OPs cancelled the allotment of the Complainant in the respective flat on 27.05.2013, the said information was duly intimated to the Complainant by the OPs on the same date through an e-mail, inspite of such cancellation the OPs have requested the Complainant to visit their office, but the Complainant did not bother to hear the same on flimsy pretext, ultimately the said flat along with the car parking space has been transferred by the OPs to the third party after executing the deed of conveyance in their names. The allegation of the Complainant is that inspite of cancellation of the allotment on 27.05.2013 the OPs did not take any step to refund the amount as paid by him to the tune of Rs.11,50,000/-towards the consideration amount partly till filing of this complaint inspite of making repeated requests through written correspondences. As the OPs have miserably failed to redress his grievance before coming to the Court of Law, hence this complaint has been filed seeking for certain reliefs.
The contention of the OPs is that as the Complainant had failed to abide by the terms and conditions of the agreement for sale and became a defaulter in making payment of the due installments towards the value of the flat for a prolonged period inspite of making written correspondences with him, having no alternative they have cancelled the allotment of the Complainant. Further contention of the OPs is that due to such action and failure to maintain commitment by the Complainant the OPs have to face pecuniary loss to a great extent and ultimately they are facing several litigation, for this reason they are entitled to get some amount from the Complainant and along with deduction of the 5% of the sale value they are also entitled to get interest @18% p.a. for late payment charge from the Complainant. The ld. Counsel for the OPs has attracted our notice stating that this complaint is hopelessly barred by pecuniary jurisdiction of this Ld. Forum as in view of Section-11 (1) of the Consumer Protection Act, 1986, the value of the questioned flat and the compensation as sought for by the Complainant exceeds the pecuniary jurisdiction of this Ld. Forum. According to the OPs this complaint does not bear any merit at all.
Now at the very outset it is to be adjudicated upon as to whether this complaint is actually barred by pecuniary jurisdiction of this Ld. Forum or not. It is seen by us that admittedly the value of the questioned flat is of Rs.16,70,070/- and the Complainant has prayed for harassment charges for Rs.3,00,000/-, Rs.3,00,000/- for loss incurred due to non-delivery of the flat and charges for mental agony to the tune of Rs.1,20,000/-. Therefore, if we clubbed the compensation amount for Rs.7,20,000/- with the value of the questioned flat then obviously the jurisdiction of this Forum will be outs in respect of pecuniary jurisdiction i.e. Rs.16,70,070/-+Rs.7,20,000/-= Rs.23,90.070/-. But in view of the Section 11(1) of the Consumer Protection Act, 1986 the District Forum shall have jurisdiction to entertain complaint where the value of the goods or services and compensation, if any, claimed does not exceed rupees twenty lakhs. So it is apparent from the petition of complaint that the complaint is related with the claim amounting to Rs.23,90,070/-. Therefore in view of the abovementioned Section of the Consumer Protection Act, this complaint exceeds the pecuniary jurisdiction of this ld. Forum. In this respect the Ld. Counsel for the OPs has relied on a very recent judgment passed by the Hon’ble NCDRC on 07.10.2016 in the First Appeal No-166/2016 along with other appeals. In the said judgment the Hon’ble NCDRC was pleased to mention in the Paragraph No-14 (Reference order dated 11.8.2016, Issue No-i), which runs as follows:-
14. ‘It is evident from a bare perusal of Section-21,17 and 11 of the Consumer Protection Act that it is the value of the goods or services and compensation, if any, claimed which determined the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the service hired or availed of by a consumer, when added to compensation, if any, claimed in the complaint by him exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint………………’ On 07.10.2016 the Larger Bench of the Hon’ble NCDRC was pleased to pass another judgment in the case of Ambrish Kumar Shukla & Others vs. Ferrous Infrastructure Private Limited, CC no-97/2016 holding the same view.
Therefore, having regard to the abovementioned Larger Bench decision of the Hon’ble NCDRC we are of the view that as in the case in hand the total of the value of the flat and compensation sought for exceeds the pecuniary limit of this Ld. Forum, hence, in our view this complaint is not maintainable before this Ld. Forum being barred by pecuniary jurisdiction. As the complaint hits the pecuniary jurisdiction of this Ld. Forum, we are not inclined to enter into the merit of the complaint. Though the Ld. Counsel for the OPs has relied on some Rulings based on the fact of the complaint, but as the complaint being not maintainable for aforementioned reason, we are not inclined to discuss on those Rulings.
Going by the foregoing discussion hence it is ordered that the complaint is dismissed on contest, however considering the facts and circumstances of the complaint there is no order as to cost. The Complainant is at liberty to approach the appropriate Forum/Court, if not barred otherwise.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
