Date of Hearing the 15th Day of October, 2015
Date of Judgment Wednesday, the 4th Day of November, 2015
JUDGMENT
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred as the ‘Act’) is at the instance of Opposite Party Nos.1 to 7 to impeach the Judgment/Final Order dated 15.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (In short, Ld. DCDRF) in Consumer Complaint No.264 of 2014.
The Respondent herein Sri Ganesh Chandra Biswas has initiated the Consumer Complaint u/s. 12 of the Act alleging that on 26.02.2012 he has entered into an Agreement for Sale with the Opposite Party Nos.1 to 7 in respect of a flat measuring a super built-up area of 950 sq. ft. more or less at the second floor at the building known as ‘Rajlakshmi Apartment’ lying and situated at Mouja Salua, P.S. Airport within the local limits of Rajarhat-Gopalpur Municipality, District North 24 Parganas at a consideration price of Rs.18,76,250/-. On the date of Agreement of Sale the Complainant has paid a lump-sum of Rs.15,000/- and subsequently, on diverse dates he has paid the entire consideration money. In spite of completion of entire construction works the Opposite Party Nos.1 to 7 did not hand over the possession of the flat in question. Hence, the Complaint with following prayers, viz. – (a) an Order directing of the Opposite Parties to execute and register the Deed of Conveyance after delivery of physical possession in respect of the flat in question or (b) alternatively an Order directing the Opposite Parties to refund the earnest money amounting to Rs.18,76,250/-; (c) compensation of Rs.1,00,000/- on account of harassment and mental agony, costs of litigation etc.
The Opposite Party Nos.1 to 7 by filing a joint Written Version have defended that the Complaint has paid a sum of Rs.6,00,000/- out of total consideration of Rs.18,76,250/- and the balance amount of Rs.12,76,250/- is still unpaid. They have requested the Complainant to make payment of unpaid amount of Rs.12,76.250/-. The Complainant refused to pay the same as the flat in question in his possession.
Basing upon the materials on record including evidence adduced by the Parties coupled with documentary evidence the Ld. DCDRF by the impugned Order allowed the Consumer Complaint against Opposite Party Nos.1 to 7 with costs of Rs.7,000/- and ex-parte against the Opposite Party No.8 without any Order as to cost directing the Opposite Party jointly and severally to execute and register the Deed of Conveyance in respect of the flat already possessed by the Complainant within 1(one) month from the date or to refund Rs.18,76,250/- together with interest thereon @ 10% per annum, to pay Rs.10,000/- as compensation for harassment and mental agony etc. which prompted the Opposite Party Nos.1 to 7 to prefer this appeal.
We have scrutinised the materials on record and also considered the submission advanced by the Ld. Advocates appearing for the Parties.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record it emerges that the Opposite Party is a partnership firm of which Opposite Party Nos.2 to 7 are partners and the Opposite Party No.8 is the land owner. It remains undisputed that on 26.02.2012 the Complainant had entered into an Agreement for purchasing the residential flat measuring super built-up area of 950 sq. ft. more or less being flat No.B-1 on the second floor lying and situated at R.S. Plot Nos.488/595,495 within Mouja Salua under P.S. Airport within Rajarha-Gopalpur Municipality, District North 24 Parganas at a consideration of Rs.18,76,250/-.
The Complainant has alleged that he has paid the entire consideration money of Rs.18,76,250/- and requested the Opposite Parties to hand over the vacant possession. The Opposite Party Nos.1 to 7 promised to hand over a copy of completion certificate but they are not keeping their words. On the other hand, on behalf contested Opposite Parties it is contended that the Complainant has paid the amount of Rs.6,00,000/- out of total consideration amount of Rs.18,76,250/- and as such an amount of Rs.12,76,250/- is still due and payable by the Complainants.
The materials on record indicate that the Money Receipt available with the record indicates that the Complainant has paid Rs.15,000/-, Rs,3,50,000/- and Rs.1,00,000/- on 20.02.2012, 26.02.2012 and 05.03.2012 aggregating Rs.4,65,000/- on behalf of the Opposite Party it has been contended that an amount of Rs.6,00,000/- have been paid by the Complainant in favour of them. However, the Opposite Party Nos.1 to 7 has failed to substantiate how the balance amount of Rs.1,35,000/- paid by the Complainant. In this regard, a document executed by the Opposite Party No.3, Mr. Debasish Ghosh is a pointer, who on behalf of the Opposite Party No.1 (Partnership Firm) received Rs.1,00,000/- on 12.08.2012 as full and final payment except electric connection. Though the Opposite Party tried to establish that the Complainant did not make the payment of balance amount but it is quite clear that the Complainant along with his wife have possessed one S.B. Account with IDBI Bank. There are documents to show that the Complainants had paid the amount through banking transactions. The facts and circumstances of the case indicate that the Complainant has paid the entire consideration amount and on being satisfied the Opposite Party No.3 on behalf of the Opposite Party No.1 has received the full and final payment of Rs.1,00,000/- on 12.08.2012.
Needless to say, after receipt of consideration amount the developer is bound to execute the Sale Deed in favour of the Consumer. In Bhikhubhai alias Vishal Bhai Ishwar Bhai Desai – Vs. – Hirabhai Kikabhai Patel and Another, reported in 2015 (2) CPR 310 (NC) it has been observed that a Builder is bound to execute the Sale Deed after accepting consideration from the Buyer. The Opposite Party No.8 who is the land owner did not stand in the way and practically, Opposite Party Nos.1 to 7 are adopting dilly delaying tactics only on the ground of non-payment of consideration amount which appears to us fragile in appearance.
In course of advancing his submission, Ld. Advocate appearing for the Appellant has submitted that the Complainant/Respondent No.1 is a person of ill-reputed character who suppressing his first marriage, married for the second time to one Smt. Poushali Biswas and the said Poushali Biswas lodged a complaint against her husband at Airport P.S. The submission advanced by the Ld. Advocate for the Appellant appears to us is an irrelevant consideration because a Consumer Court has been created for a limited purpose to consider whether a relation of Consumer-Service Provider exists between the Complainant and the Opposite Parties and if so, whether there was any deficiency of service on the part of the Opposite Parties. The materials on record make it abundantly clear that the Complainant being a Consumer within the meaning under Section 2(1)(d) of the Act was deprived of required service from the Opposite Party Nos.1 to 7 in spite of payment of entire consideration amount.
In that perspective, we do not find any reason to interfere with the Order impugned. As a result, the appeal is liable to be dismissed. In fact, the Respondent Nos.1 to 7 had no occasion to prefer this appeal and the appeal being a harassing one it should be dismissed with costs of Rs.7,000/-.
For the reasons aforesaid, the appeal is dismissed on contest with costs of Rs.7,000/- to be paid by the Appellants in favour of Respondent No.1 i.e. Complainant of the case.
The Judgment/Final Order dated 15.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in Consumer Complaint No.264 of 2014 is hereby affirmed.
