The present complaint case is filed by one Sri Tapan Chatterjee against M/s G.R.S.V. Projects and one Sri Ashish Guha, praying for a direction upon the OP No. 1 to return Rs. 30,000/- as paid by the Complainant to it, and also to pay a sum of Rs. 50,000/- as compensation together with all costs and incidentals of the present complaint case.
Case of the Complainant, in brief, is that, with a view to purchase a flat measuring about 400 sq. ft. super built up area consisting of one bed room, one dining-cum-open kitchen, one toilet-cum-bath on the ground floor of Premises No. 112, Roybahadur Road at a total consideration of Rs. 14,00,000/-, he entered into an Agreement for Sale with the OPs and made an advance of Rs. 50,000/- for this purpose at the time of execution of the Agreement for Sale. Afterwards, the Complainant, from time to time, paid another sum of Rs. 30,000/- to the OP No. 1 against proper receipts. Thereafter, with a view to obtain loan, the Complainant requested the OP to handover all the relevant documents as regards the right, title, and interest of the owner in respect of the said land. But, in spite of repeated requests and demands, OP No. 1 did not handover requisite documents to the Complainants. Accordingly, the Complainant disclosed his inability to purchase the said flat and at that juncture, the OP No. 1 asked him to cancel the said agreement by accepting the advance consideration money paid by him to it. Left with no other choice, the Complainant agreed to such proposal. It is stated that at the time of cancellation of said Agreement for Sale, the OP No. 1 did not pay any money to him, but issued seven post dated cheques, all of which eventually bounced. So, the Complainant sent notice through his Ld. Advocate. Thereafter, the OP No. 1 though returned Rs. 50,000/- to the Complainant, it is yet to clear the residual amount of Rs. 30,000/-. Since severe perseverance of the matter with the OP No. 1 yielded no positive result, Complainant filed this case.
OP No. 1 contested the case by filing WV, whereby it denied all the material allegations of the complaint. It is stated by this OP that the Complainant remained lackadaisical towards making payment of consideration money on the plea that he had filed loan application before his banker. It is asserted by the OP that he accommodated such delayed payment to the extent possible, but as the Complainant could not secure the loan from the bank, he pressed for cancellation of the Agreement for Sale. Strongly refuting the allegation of non-delivery of required documents, it is pointed out by this OP that the Complainant himself annexed photocopies of Agreement for Sale, Joint Development Agreement, general Power of Attorney along with his petition of complaint. The Complainant also mentioned the sanctioned plan no. of the building in paragraph 4 of his petition of complaint. All these nullify the allegation of the Complainant as to non-receipt of requisite documents. As regards the allegation of non-payment of Rs. 30,000/-, it is stated by the OP that 25% of the total paid up amount, i.e., Rs. 20,000/- was anyway deductable as liquidated damages in terms of the Agreement for Sale upon cancellation of the Agreement at the instance of the purchaser. It is further asserted by this OP that it has done some additional works, such as, prayer place (mandir), box grill, wall patty, aluminium sliding window for which it had to incur Rs. 90,000/-. So, after adjustment of residual amount of Rs. 10,000/-, the Complainant is required to pay a sum of Rs. 80,000/- to the OP No. 1. Accordingly, this OP prayed for dismissal of the case.
Point for determination is whether the Complainant is entitled to the relief as prayed for, or not.
Decision with reasons
Undisputedly, an Agreement for Sale was executed in between the parties for the purpose of selling/purchasing a 400 sq. ft. flat at the schedule premises. It is alleged by the Complainant that the said Agreement for Sale was cancelled over failure on the part of the OP No. 1 to provide all the requisite documents as per the demand of the bank. To this, OP No. 1 denied any lapses on its part stating inter alia that it had furnished all the relevant documents to the Complainant to facilitate securing bank loan and insofar as the Agreement for Sale was cancelled at the behest of the Complainant, in terms of the Agreement for Sale, it deducted 25% of the deposited amount or Rs. 20,000/- and balance Rs. 10,000/- was adjusted against some extra works done by it in respect of the flat in question. In fact, it is claimed by the OP No. 1 that the Complainant owed it an amount of Rs. 80,000/- for such additional works.
We have given our thoughtful consideration to the averments made by the respective parties. We have also carefully scanned through the documents on record.
On a closer scrutiny of the materials on record, it appears that the said Agreement for Sale was mutually cancelled by executing another agreement on 23-03-2014. Thus, the very Agreement for Sale, banking on which the OP No. 1 justified withholding 25% of the deposited amount, i.e., Rs. 20,000/-, appears to be misnomer. As because the Agreement for Sale in question ceased to exist over cancellation of the same by the parties concerned mutually, it is futile to stake any claim based on such cancelled agreement. Thus, we find no rationale in the contention of the OP No. 1 that it withheld Rs. 20,000/- over cancellation of the Agreement for Sale by the Complainant himself.
Above all, it appears from the Agreement for Sale, now ceased to exist, that had the purchaser intended to cancel the same suo motu, then only the OP No. 1 could withheld 25% of the deposited money. A careful reading in between the lines of the Agreement dated 23-03-2014 reveals that the Agreement for Sale in question was cancelled at the behest of the OP No. 1 and not at the insistence of the Complainant. Such findings clearly prove the OP No. 1 wrong. In spite of that, we fail to understand, on what basis the OP No. 1 sought to invoke the provision of a null and void Agreement for Sale. We are afraid, this cannot be allowed.
Now coming to the issue of supply of relevant documents, it is asserted by the OP No. 1 that it provided all the requisite documents to the Complainant. However, it appears from the agreement dated 23-03-2014 that due to non-availability of proper documents regarding the title of the said property, the parties thereto mutually agreed to recind the principal agreement or Agreement for Sale. The tall claim of the OP No. 1 clearly falls flat on the face of it.
What is worse, simply by uttering some unproven rhetoric, not only the OP No. 1 made a desperate attempt to justify its decision to hold back Rs. 30,000/- that he promised to refund to the Complainant by entering into an agreement with the Complainant, without furnishing any corroborative document in support of its contention, OP No. 1 has claimed that the Complainant need to pay Rs. 80,000/- to it. Further, it transpires that the OP No. 1 issued two cheques bearing nos. 000039 dated 20-04-2014 for Rs. 10,000/- and 000041 dated 23-06-2014 for Rs. 20,000/-, both of which eventually bounced. This gives rise to the question, if the OP No. 1 was indeed certain about its right to withhold Rs. 30,000/-, why it at all issued the said cheques.
All these, unfortunately, do not speak high of the sincerity of purpose of the OP No. 1. We find no justification whatsoever in respect of any of the claims of the OP No. 1. In fact, documents of on record clearly show that the OP No. 1 has not come up with clean hands before this Forum. Accordingly, we have no qualms holding that the OP No. 1 is liable to return Rs. 30,000/- to the Complainant.
Hence,
O R D E R E D
that CC/46/2016 be and the same is allowed in part against the OP No. 1 on contest and dismissed against the OP No. 2. OP No. 1 is directed to refund Rs. 30,000/- to the Complainant within two months from this day, i.d., the amount shall carry interest @ 10% per amount after two months till full and final payment is made.
