PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer.Case No.- 49/2015

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member

Smt. Nujhat Jahan Khan,

W/O- Late S.F.Khan

R/O-Flat No. FF-1, 4^th Floor, Varun Plaza Complex,

PO -Ainthapali, Dist-Sambalpur-768004, Odisha.                 …………..Complainant

Vrs.

1. Gopal Agrawal, Director,

Varun Developers Pvt. Ltd.

75, Indumati Niwas, Opp. L.O.C., S.M. Road,

Antop Hill, Wadala, Mumbai-400037.

2. Rumeet Agrawal, Director

Varun Developers Pvt. Ltd.

Agrawal Nagar Dr. Ambedkar Road,

Matunga(E), Mumbai-400037                              ……….….Opp. Parties

Counsels:-

1. For the Complainant    :-            Sri. P.P.Panigrahi, Advocate
2. For the O.P                    :-            Sri. U.C.Pradhan, Advocate & Associates.

DATE OF HEARING :04.07.2022 DATE OF JUDGEMENT : 02.08.2022

Presented by Dr. Ramakanta Satapathy, PRESIDENT:

1. The case of the Complainant is that the O.Ps agreed to provide a flat with super built-up area 1300sq.ft for a consideration of Rs. 11,90,500/-. The price consideration of flat fixed at Rs. 11,55,000/- and Rs. 35, 500/- for transformer installation, electric meter expenses, legal fees etc. The following payments are made by the Complainant to the O.Ps and the cash payment to Bikash Goel, Asst. Manager of O.Ps.

Rs. 12,00,499/- payment was made against fixed price of flat Rs. 11,90,500/- price from the Complainant.

The Complainant was allotted flat No. FF-1 in the 4^th floor of Varun Plaza, Ainthapali. The O.Ps assured at the time of booking that the booking amount will be adjusted.

The O.Ps defaulted in timely delivery of the possession of the flat. The day of delivery was 15.07.2008, whereas actual possession was given on 30.09.2009, a delay of 13 and half month.

The O.Ps not executed the sale deed which amounts to deficiency in service.

Being aggrieved, the Complainant a pardanashin lady preferred this complaint.

2. After appearance in the version the O.Ps stated that the complaint is not maintainable on the ground of limitation as the case is filed after lapse of 7 years of cause of action. This forum/Commission lacks jurisdiction. All the allegations of the Complainant are denied. The value of the flat fixed was Rs. 11,90,500/- which excludes the stamp duties, registration charges, interest on delayed payment received by the O.Ps are through cheques. As per clause ‘g’ of allotment letter the payee is to pay through Account cheques or Demant Draft. No cash has been received nor excess amount received by the O.Ps.

The O.Ps have never assured to adjust the booking amount. Further there is no any such cash payment of Rs. 2,60,000/- before booking by the Complainant.

There is no any delay in delivery of the flat. As per terms and conditions of agreement for sale was 20.07.2008 with a grace period of 60 days after receiving the balance sale price of Rs. 9,76,425/-. Before 15.07.2008, the complainant failed to clear the pay, and on good faith temporary possession of the flat was given on 30.09.2008 after receiving an amount of Rs. 6,78,575/-

05.07.2008      Rs. 1,78,575/-

12.08.2008       Rs.3,00,000/-

19.08.2008       Rs. 2,00,000/-

The Complainant failed to pay Rs. 14,57,898/- excluding further interest of 24% P.A. as per agreement for which the sale deed has not been executed. The Complainant has suppressed material facts and accordingly the complaint is liable to be dismissed.

3. The Complainant has filed a petition before the forum that son of O.P. No.1 namely Ankit Agrawal has obtained a loan of Rs. 8,46,000/- on 20.05.2006 vide loan A/C No. 12096004108 against allotted flat of the Complainant before Utkal Gramya Bank, Sakhipada Branch, and the loan amount has not been cleared up.

Utkal Gramya Bank, Sakhipada in its report submitted that Smt. Aruna agrawal W/O- Gopal agrawal availed a housing loan for rs. 7,28,000/- on 10.05.2006 against unit no. 14, Danipali Khata No. 73/2493 plot No. 275 having super build up area 1238Sq. ft. on the fourth floor in Varun Plaza. The loan account was closed on 02.04.2015. Perused the loan documents filed by the Bank.

The allegation of the complainant is found false. Learned Advocate for the Complainant submitted that the B.M. has not submitted the loan documents of Ankit Agrawal.

4. After perusal of the documents filed by the complainant and O.Ps the following issued are framed:
103606587.  

1. Whether the Complaint is barred by limitation and not maintainable?
2. Whether the Complainant has cleared up the agreed amount and the O.Ps have received excess amount of Rs. 10,499/- from the Complainant?
3. Whether the O.Ps delivered the possession of the alleged flat within time to the Complainant?
4. Is there any deficiency in service on the part of the O.Ps and the O.Ps actions are unfair trade practice in dealing the property?
5. What relief the Complainant is entitled to get?

Issue No.1 Whether the Complaint is barred by limitation and not maintainable?

          Perused the case record and found that several times point of limitation was raised by the learned Advocate for O.Ps and under different circumstances the mode of complaint has changed and limitation part has not been decided.

          The allegation of the Complainant is that the O.Ps promised to deliver delivered on 30.09.2009. The O.Ps in their version stated  the Complainant has not paid by the Complainant which is Rs. 14,57,898/- as on 30.09.2015. From the aforesaid statement of the parties it is clear that there was dispute relating to payment. The Complaint was filed on 25.08.2015 and the O.Ps entered to complaint on 25.09.2015. The calculation of dues as alleged by O.Ps is made till 30.09.2015. From this it is clear that prior to filing of the complaint the complainant insisted for execution of sale deed and on the other side the O.Ps demanded the outstanding amount from the Complainant.

          The Complainant cited Rukmini Yamma & others Vs. Kirloskar investment Finance Ltd. decided by Hon’ble National Commission in original Petition No. 29/1998. As the contract of sale is not complete it is a continuing one. The cause of action continued even after delivery of possession on each and every day as the sale deed not executed by the O.Ps.

          Accordingly, the complaint is within the period of limitation. The issue is answered accordingly.

Issue No. 2 & 3  2)Whether the Complainant has cleared up the agreed amount and the O.Ps have received excess amount of Rs. 10,499/- from the Complainant?

3) Whether the O.Ps delivered the possession of the alleged flat within time to the Complainant?

          An Agreement for sale was executed between the O.Ps and the Complainant on 28.06.2008 where in the Varun Plaza, flat No. FF-1, the price of the flat has been fixed Rs. 11,55,000/- and Rs. 1,781575/- earnest money has been acknowledged by the O.Ps. The Complainant had to pay on or before 15.07.2008. The purchaser is to bear and pay all applicable expenses such as stamp duty for registration of sale/conveyance deed. The O.Ps agreed to give possession of the flat before 20^th July 2008 with a grace period of 60 days on payment of the full sale price. The Complainant also agreed to pay Rs. 10,000/- legal charges Rs. 1000/- for formation of registered society/Association , Rs. 6000/- for maintenances, Rs. 7000/- for installation of electric meter and Rs. 20,500/- for transformer totaling Rs. 44,500/- before delivery of possession.

          The O.Ps have filed a calculation sheet claiming interest @ 2% per month. In the said stamen admitted the receipts amount and cheques

             The O.Ps are not admitting the amount paid through case on 21.06.2008 by the Complainant, where as the Complainant has filed a money receipt dated 21.06.2008. One Bokash Goel received Rs. 2,60,000/- for booking of “Flat No. FF-1 on Varun Plaza” The argument made by O.Ps that as per terms and condition of the agreement all payments to be made through cheques/demand drafts and denied the receipt through case by the Manger. The O.Ps not denied that Bikash Goel was not their manager.

Another point of consideration is that he O.Ps agreed and admitted the receipt of cheque dated 05.07.2008 for an amount of Rs. 1,78,575/- in the version. The agreement was executed on 28.06.2008 where in the O.Ps acknowledged the receipt of Rs. 1,78,575. Nowhere in the pleading any post dated cheque payment has been made by the O.Ps, from the aforesaid discussion it is clear that Asst. Manager Biksh Goel received Rs. 2,60,000/- on 21.06.2008 for advance booking of the flat No. FF-1.

The Complainant has filed the complaint with affidavit, whereas the facts discussed are not rebutted by the O.Ps through affidavit nor Vikash Goel has been examined by the O.Ps.

Accordingly, Payment made by the Complainant to the O.Ps is Rs. 12,00,449/- for the booked flat in Varun Palza.

Another point of consideration is that at para-9 of the version the O.Ps stated,    the O.Ps in good faith has delivered the temporary possession of the flat in favour of the Complainant on 30.09.2008, after receiving an amount. And a post dated cheque of Rs. 2,61,924/- of dated 11.10.2008 with a further assurance that the Complainant will clear all the balance outstanding amount with interest as per agreement for sale on or before 31.12.2008.

The O.Ps neither submitted the post dated cheque before the Forum/Commission nor any documentary evidence regarding bouncing of cheque. Further the O.Ps have not submitted the occupancy certificate in this regard and admitting the fact of delivery of possession.

Ass. Manager, Barun Goel has granted receipt dated 12.08.2008 and 19.08.2008 also.

As per admission of O.Ps the due date of delivery of possession was 20.07.2008 and in pleading the date of delivering of possession given is 30.09.2008. The O.Ps have violated the agreement.

Accordingly the issue No. 2 & 3 are answered in favour of the Complainant and the O.Ps have taken excess price of Rs. 9999/- from the Complainant (Rs.12,00,499/- devided by Rs. 11,90,500/- eqaul to Rs. 9999/-) and not delivered the flat in time if grace period of two months is deducted also.

Issue No.4 Is there any deficiency in service on the part of the O.Ps and the O.Ps actions are unfair trade practice in dealing the property?

          Receiving excess price of Rs. 9999/- not delivering the possession of the flat in time to the Complainant, reflecting in the agreement(Cover Page) pride of Sambalpur, promise to execute the sale deed after payment of full consideration and not executing the sale deed are coming within the ambit of deficiency in service and unfair trade practice.

          Non execution of sale deed after delivery of possession of the flat to the Complainant is sufficient to establish that the O.Ps are involved in unfair trade practice.

          The issue is answered against the O.Ps

Issue No.5 What relief the Complainant is entitled to get?

          From the aforesaid discussion it is crystal clear that as the Complainant paid consideration for the flat the O.Ps failed to perform their part of contract, there by deprieved a consumer from his/her rights. Accordingly, the Complaint is entitled for relief.

          It is ordered:

ORDER

          The complaint is allowed on contest. The O.Ps are directed to execute the sale deed in favour of Complainant within one month from the day of receipt of this order.

          The O.Ps are directed to refund Rs. 9999/- with 12% P.A. w.e.f. 28.06.2008 till the day of realisation for the excessive charges taken.

          The O.Ps are to pay a compensation of Rs. 2.00 lakhs within one month failing which the amount will carry 12% P.A. from the realisation.

          The O.Ps are warned not to practice unfair trade practice in future and directed to pay litigation expenses of Rs. 25,000/-

          Order pronounced in open court on this 2^nd day of August 2022.

          Supply free copies to the parties.