Complainant by filing this complaint has submitted that complainant intended to purchase a flat about 578 Sq. Ft. of Super Built area bearing No. 212 at 2nd floor in an upcoming apartment names Aria Shree at 236, Sasanka Deb Chatterjee Road, Baruipur, District- South 24 Parganas, Kolkata – 700144 constructed by the op nos. 1 to 6 through an Application cum Booking Form S/179 dated 24.09.2013 and as per the conditions of the Developer’s Company, complainant paid Rs. 1,00,000/- through an account payee cheque dated 24.09.2013 bearing No. 225006, against complainant’s Savings A/C No. 0147010115938 at the time of booking for the said flat.
Thereafter op nos. 1 to 6 were silent for some days for furnishing any papers relating to the original money receipt, booking copy, provisional allotment letter etc. So, complainant submitted a letter dated 31.09.2013 to the op no.2 pursuing the letter of the complainant, op no.5 sent a letter dated 05.10.2013 whereby he informed to the complainant that her booking copy or other related documents would not be issued until and unless she would pay up to 20 percent of her booking and agreement amount till then no such document could be issued and the said condition was mentioned neither in Application cum Booking Form S/179 dated 24.09.2013 nor in the Annexure-1 of the said Application cum Booking Form S/179 dated 24.09.2013. But even then complainant was compelledto sign the Application cum Booking Form S/179 without having a clear cut idea about the plan of her booked flat and without taking a look at least on the sanctioned building plan and floor plan and the Agreement for Sale as well.
Op no.6 brought a Memorandum and insisted the complainant and her daughter to sign on the said Memorandum and after repeated insistence made by the said op no.6, so complainant and her daughter were compelled to sign on the said Memorandum and before signing on the same, a letter dated 03.10.2013 by the Ld. Lawyer of the complainant was sent to the Developers for replacing the word ‘Memorandum’ by “Agreement for Sale”. But the Developers did not listen to the request of Ld. Lawyer of complainant.
Subsequently the Developers changed the said Memorandum and made an Agreement for Sale which was signed by the complainant only, when complainant pointed out by a letter dated 16.11.2013 that she should be the sole purchaser and her daughter should be treated as her nominee in the Agreement.
As per conditions of the Developers Company, complainant paid Rs. 2,12,120/- through an Account Payee Cheque dated 15.10.2013 bearing No. 225008, drawn from complainant’s Savings Account No. 0147010115938 in addition to Rs. 1,00,000/- paid on 24.09.2013 at the time of signing the corrected Agreement for Sale for the said flat which constitutes 20 percent of the total amount and received an acknowledgement letter dated 20.11.2013 signed by the op no.3 and money receipt was issued on 26.09.2013 and Provisional Allotment letter was dated 27.09.2013.
It is specifically mentioned that op Company did not provide copy of sanctioned of building plan and floor plan of the said upcoming construction of Aria Shree Apartment, sanctioned by the Baruipur Municipality, neither at the time of booking of the flat No. 212 at 2nd floor in an up-coming apartment nor at the time of entering into the Agreement of Sale for the said flat. Only provided an evasive floor plan cum sketch map of 2nd and third floor, after signing and entering into the corrected Agreement for Sale by complainant. But no such signature of the Developers is there and no such schedule of the land, on which the up-coming apartment has been constructed etc.
Subsequently complainant for the purpose of paying the balance amount for the said flat approached to borrow from the State Bank of India, Jeevandwip Branch with all the documents and papers along with such sketch map of 2nd floor and 3rd floor provided by the op nos. 1 to 6. But the State Bank of India authority asked the complainant to obtain sanctioned building plan and floor plan of the said up-coming construction of Aria Shree Apartment sanctioned by the Baruipur Municipality for sanctioning the loan in favour of complainant.
So, complainant asked the op to supply the sanctioned plan of Baruipur Municipality including floor plan of the said up-coming construction of Aria Shree Apartment. Anyhow op did not supply all those documents including other papers in support of the ownership of the flat. But anyhow complainant collected the Conditional No Objection issued by the op no.7 and a letter for no objection signed by the op no.3 whereby complainant had come to know that the payments of entire proceeds of the said flat No. 212 should be received in the Company’s Loan Account No. 31957644255 at the State Bank of India, SME Branch, New Alipore Branch (12305).
Subsequently complainant came to learn that the flat No. 12 was allotted to complainant and made her understood that the original No. of the said Flat is 212 and as per the unsigned sketch map of the 2nd floor and 3rd floor, flat No.9 is situated besides the Flat No.12 and allotted as an commercial space and another open terrace – II is also situated in front of the balcony of the Flat No. 12. But on 19.12.2013 when complainant suddenly gave a surprise visit to the construction site at the up-coming apartment and approached the op no.6 to make her visited thoroughly to the booked Flat No. 212 and op no.6 did not cooperate with complainant at all and complainant was compelled to visit her said booked flat by herself and she was very much surprised to see that a new construction for residential flat has been constructing in place of the flat No.9 which was initially allotted for a proposed commercial space and situated besides the Flat no.12 as per the unsigned floor plan of 2nd and 3rd floor provided by the op nos. 1 to 6. But actually it is not the flat. But it is a commercial space and when complainant raised objection and met with the ops, they did not pay any heed. So, the complainant sent so many letters to the op no.2 where she expressed and intimated her dissatisfaction to the op no.2 to cancel her booking despite repeated assurance, misrepresentation of fact and deficiency in service and approached to refund the entire booking amount of Rs. 3,12,120/- which she paid in favour of the op no.1 through two account payee cheques vide Nos. 225006 & 225008 along with interest. Subsequently op no.3 issued an account payee cheque of Rs. 2,79,944/- bearing No. 915354 dated 18.01.2014 in favour of complainant and sent the same with a letter dated 18.01.2014 by Speed Post.
When complainant was surprised because it is found that already ops have deducted a sum of Rs. 32,176/- without showing any reasons. But fact remains that ops had no legal ground to deduct any such amount. But subsequently op reported that while the said amount was deducted but fact remains that there was no ground for deducting of any such amount as per contract in view of the fact actually allotment has noted in the Agreement for Sale is hoax one but actually it was a space of commercial portion for which op practically deceived the complainant and for that reason op cannot deduct any amount and in the above circumstances, complainant for adopting unfair trade practice and for negligence and deficient manner of service prayed for redressal before this Forum against the op.
On the contrary ops by filing written version submitted that the entire allegation of the complainant is false and fabricated. Complainant executed the Agreement for Sale being satisfied about the terms and conditions of the policy and knowing fully well of the terms and conditions and after evaluating all the documents in support of the said construction including other papers. But complainant without showing any reasons at her behest prayed for cancellation and accordingly her prayer was considered by the ops and thereafter as per terms and conditions of the said Agreement to Sale and as per clause, cancellation charges 2 percent of the total consideration amount of flat No. 212 on 2nd Floor was Rs. 15,60,000/- and accordingly at the rate of 2 percent of total consideration was deducted and accordingly Rs. 31,212/- was deducted and service tax at the rate3.09 percent over Rs. 31,212/- was deducted that is Rs. 964/- and total Rs. 32,178/- out of total amount of Rs. 3,12,120/- and that was reported to the complainant vide a letter dated 01.02.2014 and complainant encashed the amount.
So, as per terms and conditions of the policy, complainant is not entitled to get any such refund as claimed and deduction as per terms of the policy when cancellation was made by the complainant that agreement is pending upon both the parties. So, complainant cannot get any relief in this case.
It is admitted that Developer Company took loan of Rs. 8,85,000/- from the bank by mortgaging the said property but denied all other allegations as made by the complainant and for which there was no deficiency, negligence on the part of the op and there was no ground to believe that op adopted any unfair trade practice in this regard and in the above circumstances, op prayed for dismissal of this case.
Decision with reasons
On proper consideration of the entire materials on record and also considering the argument as advanced by the Ld. Lawyers of both the parties and further considering the entire materials, it is clear that complainant being dissatisfied about the manner of rendering service in respect of supplying all the material documents in support of the project and the flat concern prayed for cancellation.
Truth is that no document was supplied by the op to the complainant to satisfy herself about the authenticity, legality regarding the ownership and other matter that is related to sanctioned plan etc. Fact remains that complainant prayed for loan to her bankers and banker asked the complainant to submit all the papers related to sanction plan and plan for the up-coming flat No. 212 of 2nd floor. But op did not supply it, later at the time of surprisevisit at the spot, she found that there is no such flat being No. 212 and actually flat No. 12 is allotted which is within the commercial space.
Truth is that complainant reported the matter to the op, but op failed to satisfy the complainant. No sanctioned plan is submitted by the op before this Forum to show that there is a flat being No. 212 in the 2nd floor and that is visible in the sanctioned plan.
Another factor is that the entire project had been mortgaged by the op to a Bank wherefrom op took loan of Rs. 885/- lakhs. Then under any circumstances any other purchaser has any scope to get any relief when the entire project had already been hypothecated or mortgaged in favour of the bank from whom ops took loan then it is clear that this factor had been suppressed by the op to the complainant at the time of Agreement to Sale and fact remains that there was no fault on the part of the complainant to take any loan when already the entire project had been mortgaged to another bank by the op for which they took loan of Rs. 8,85,000/- but that matter was not disclosed in the Agreement to Sale.
Another factor is that the sanctioned plan of Baruipur Municipality was not sent to the complainant. Then how the complainant shall be satisfied which flat she shall have to get. Another factor is that in the Agreement to Sale, it is specifically mentioned the flat No. 212 of 2nd floor. But on the 2nd floor flat no.212 is not found. But in place of that one flat bearing No. 12 was fond in the commercial place. That flat is not for residential purpose that means op with some purpose did not disclose their status of the loan, status of this project that it is mortgaged by the op to one bank etc. and no document in support of the whole project, land and about sanctioned plan was not supplied and for which no doubt rightly complainant prayed for cancellation and it is her right in view of the fact that as per contract, Agreement to Sale, several matters were not complied by the ops.
Truth is that complainant deposited in total Rs. 3,12,120/- and admitted fact on the prayer of the complainant after cancellation of the booking op refunded a sum of Rs. 2,79,944/- deducting Rs. 32,176/-.
In the present case complainant’s claim for refund isfor Rs. 32,176/- which has been deducted by the op as cancellation charges as per Clause-3 of the Annexure-1 of the said executed application cum booking form S/179 at the rate2 percent of total consideration amount of flat No. 212 on 2nd floor that is Rs. 15,60,500/- and also service charge at the rate3.09 percent on Rs. 31,212/-. In this regard it is proved that performance had been performed by the complainant.About status in respect of the said entire project it is fact that the entire project had already been mortgaged to the bank by the opafter taking loan of Rs. 885 lakhs and that matter was not disclosed in the Agreement to Sale. But it is clear that if any project is mortgaged to any bank by the Promoter or Developer after taking a loan for development of the said project, in that case that shall be mentioned in the Agreement to Sale because in respect of any mortgage property, the said property cannot be sold to third person. But in the present case violating the provision of law the op entered into an Agreement to Sale with the complainant. But as per law when the entire project and property had already been mortgaged to the bank by the ops after taking loan, there was no scope on the part of the op to enter into Agreement to Sale with 3rd party like complainant for sale and that can only be done by the Developer after getting such permission from the bank in whose favour property had already been mortgaged by the op.
Initially it is found that Agreement to Sale was executed no doubt by the complainant but during that process complainant was deceived by the op. Fact remains that no sanctioned plan passed by the Baruipur Municipality is filed by the op in this Forum also for which op failed to supply the plan of the flat and considering that fact, it is clear that the Agreement to Sale was executed no doubt by the complainant but being allured by the ops because op did not disclose the status of the property that it is mortgaged property to the bank. So, invariably ops deceived the complainant at the very time of execution of the Agreement to Sale and booking. Though he had no legal authority to enter into such Agreement and in view of the above fact we are convinced to hold that complainant rightly cancelled the booking when she was satisfied that ops have their no legal right or no legal document to sell the property and when the property had already been mortgaged and there is no scope to charge any service charge at the rate3.09 percent and at the same time op cannot charge any cancellation fee at the rate2 percent over the total fixed consideration in view of the fact that ops have no legal right to enter into Agreement to Sale in respect of mortgaged property with complainant without permission of the bank. But in the present caseanyhow op managed to procure this Agreement to Sale executed by the intended purchaser but suppressing all the above fact and considering the above fact and legal position, we are convinced to hold that no doubt op has no legal right to charge any cancellation charge because this cancellation was not made bythe complainant at his own will but he was compelled to cancel when it was known that the entire property of the op had already been mortgaged to the bank by the op and in the eye of law, op has no legal right to enter into Agreement to Sale with any third party without permission of the Bank and in this regard no document has been filed by the op to prove that permission of the bank to the ops to enter into an Agreement to Sale with 3rd party was granted.
So, apparently it is clear that by deceitful manner business is being run by Exhibitor Syndicate no doubt a dishonest promoter for which the complainant has been deceived and for which complainant is entitled to get back a total sum of Rs. 31,000/- out of Rs. 32,176/- because Rs. 1,176/- is given to the op for application form and other processing fees including service tax to Rs. 964/-. But ops are legally bound to pay Rs. 31,000/- and also Rs. 5,000/- for harassing the complainant in such a manner including the cost of Rs. 5,000/- for throwing the complainant to appear before the Forum to get the relief.
Accordingly the complaint succeeds against the ops.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the ops with cost of Rs. 5,000/-.
Ops are jointly and severally hereby directed to refund a sum of Rs. 31,000/- to the complainant and also to pay a sum of Rs. 5,000/- as compensation for harassing the complainant in such a manner and for deceiving the complainant in such a manner as already discussed in the body of the judgement.
For adopting such unfair trade practice by the op and also for deceiving the intended purchasers a sum of Rs. 20,000/- is imposed as penal damages against the ops jointly and severally only to check such sort of practice on the part of the ops in future and said amount shall be deposited to this Forum’s Account.
Ops jointly and severally are hereby directed to comply the order very strictly within 15 days from the date of this order failing which for each day’s delay penal interest at the rateRs. 200/- per day shall be assessed till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum also. But even if it is found that ops are reluctant to comply the order and are found disobeying the Forum’s order in that case penal action shall be started against the ops u/s 27 of C.P. Act 1987 for which they shall have to pay further penalty and fine.
