Order-14.
Date-24/06/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant and his father Late Nitya Ranjan Sen are/were the joint signatories/operators of the agreement for sale dated 26-05-2010 and the father of the complainant expired on 18-12-2013 and the mother of the complainant also expired on 30-05-2014, so, there is no other beneficiary or Legal heirs than the complainant himself.
Fact remains complainant and his father booked a flat on payment of Rs.50,000/- to the developer M/s. Anytime Construction who is OP1 and the OPs 2,3 and 4 are the owner of the premises No.25B, Ghosh Lane, P.S. Amherst Street, Kolkata – 700 006.
A joint venture agreement dated 15-04-2009 was signed by the developer with the landowners of premises, inter alia, to develop the said premises to a multi-storied building and sell the flats to the intending purchasers.
Complainant entered into an agreement for sale dated 26-05-2010 with the developer, being OP1 and the owners being OPs 2, 3 and 4 and total value of the flat was fixed at Rs.11 lakhs measuring a covered area of 550 sq. ft. on the 4th Floor, Western side of the proposed multi-storied building at premises No.25B, Ghosh Lane, Kolkata – 700 006 and it was agreed by the developer to provide and sell the said Flat consisting of 2 bedrooms, one dining space, one kitchen, two bathrooms(one with privy) with proportionate share of land together with common areas pertaining to OPs 2, 3 and 4 and in the said agreement for sale dated 26-05-2010 that the developer, i.e. OP1 shall complete the construction of the said flat within one year from the date of signing the agreement for sale dated 26-05-2010 in finished and complete condition and also agreed to handover the possession and register the sale deed in favour of the complainant within the said period on receiving the balance consideration of Rs.6 lakhs at the time and date of Registration.
In the meantime complainant paid total sum of Rs.5 lakhs to the developer being Rs.50,000/- by A/c. Payee cheque bearing no.619695 dated 24-05-2010 drawn on SBI Nager Bazar Branch and Rs.4,50,000/- by A/c. Payee cheque bearing No.621896 dated 26-05-2010 drawn on SBI Nager Bazar Branch, Kolkata.
As per agreement in the event of failure to perform the terms of the said agreement and on failure to handover the possession of the said flat in finished condition in all respect and also on developer’s failure to register the sale deed in favour of the complainant and the developer shall be bound to refund back the total moneys received by him along with 18 percent interest by the way of liquidated damages.
Developer OP1 could not complete the construction of the said flat and to handover the possession of the same within the period as stipulated in the agreement for sale dated 26-05-2010 and the in the said agreement OP1 is supposed to provide all necessary documents to the complainant including the sanctioned building plan of Kolkata Municipal Corporation.
But most interesting factor is that OP1 killed time and finally in the month of November, 2013 OP1 failed to obtain sanctioned building plan from KMC for construction of the said premises. So, question of providing sanctioned building plan is nothing but hoax one and OP also failed to deliver the flat in terms of the agreement and failed to obtain sanctioned plan and in the above circumstances, for valid reason complainant was compelled to cancel the said agreement dated 26-05-2010 and the cancellation shall be subject to the encashment of the amount agreed to be paid by the developer i.e. OP1 to the complainant to the complainant towards the refund of the total money received by the developer i.e. OP1 along with liquidated damages as stated in the agreement or MOU dated 31-07-2014. Developer OP1 in the mean time signed agreement/(MOU) dated 31-07-2014 with the complainant that the OP1 would pay Rs.10,50,000/- to the complainant for his failure to perform the terms of the said agreement for sale dated 26-05-2010 and to deliver the said flat within stipulated period and that in terms of the said agreement/MOU dated 31-07-2014 and in order to discharge the legal obligations and liabilities towards the complainant, the developer OP1 issued a cheque in his personal capacity as the proprietor of M/s. Anytime Construction, of an amount of Rs.5,00,000/- being cheque no.000192 dated 10-09-2014 drawn on Bank of Baroda, Shyambazar Branch, in favour of the complainant towards the part payment of the above stated agreed consideration of Rs.10,50,000/- and also undertaken to pay the balance sum of Rs.5,50,000/- within 15-09-2014 but in utter surprise complainant deposited the said cheque but it was dishonoured due to insufficient fund which leads to unfair trade practice and for such deceptive tactics adopted by the developer OP1 complainant filed a case u/s.138 of the N.I. Act, 1881 before the Ld. Additional Chief Metropolitan Magistrate, Kolkata being case No.419451 of 2014 but in spite of taking all the necessary measures developer OP1 did not come forward to refund of the said amount and practically for his negligent and deficient manner of service and also for adopting unfair trade practice complainant is suffering much for which complainant has filed this complaint praying for redressal.
On the other hand OP by filing written statement submitted that the entire complaint is false and fabricated and fact remains the complainant filed this complaint after filing a complaint against the OP for dishonouring the cheque and the present complaint is not maintainable in view of the fact it is a simple money suit and there is no relationship of consumer and service provider in between the parties and further submitted that as per relief as claimed by the complainant it is nothing but for directing the OP for refund the amount but not for implementation of any agreement to sale and in fact, complainant filed this complaint for the purpose of gaining more money and in fact OP1 developer has signed the agreement or MOU dated 31-07-2014 that he shall pay Rs.10,000/- for violation of the terms for sale dated 26-05-2010 and not for delivering the said flat within stipulated time. In the above circumstances, the present complaint is not maintainable and present complaint should be dismissed.
Decision with Reasons
After comparative study of the complaint and the written version and also considering the argument/MOU dated 31-07-2014 and further overall evaluation of the same and relying upon the argument of the OP it is undisputed fact that complainant entered into an agreement to sale with the OPs for purchasing a flat on the basis of agreement to sale dated 26-05-2010 and as per said agreement to sale the total amount was fixed Rs.11 lakhs and the developer admittedly received Rs.5 lakhs and as per said agreement it was specifically mentioned that if developer fails to handover possession of the said property in all respect finished condition within the specified time of one year from the date of execution of the said agreement to sale and failed to register the same in favour of the purchaser of the specified and stipulated period developer shall be bound to refund back the total moneys received by him from the purchaser along with 18 percent interest by way of liquidated damages forthwith on demand of the purchaser. Admittedly, OP developer has failed to construct the said building and also failed to secure any sanctioned plan that means no construction has been made as yet. Though agreement to sale was executed on 26-05-2010 so apparently OP1 the developer failed to discharge his liability as per agreement to sale dated 26-05-2010 and he also failed to handover possession within stipulated period of one year that is within 26-05-2011. Thereafter, complainant has been loitering in the field for getting back the said amount when OP himself entered into a MOU and when failed to get the said flat in time and also failed to get the said amount this agreement was executed by the OP including the complainant and OP admitted that the agreement dated 26-05-2010 shall stand cancel and purchasers have no claim or right on the said flat only after encashment of the above payment and OP1 admitted that he shall have to return Rs.10,50,000/- because there was such clause over the amount 18 percent shall be assessed and when OP has admitted in writing that he is willing to return Rs.10,50,000/- to the complainant as on 31-07-2014 then this agreement cannot be treated as a fresh one in view of the fact it is the continuation or admission of the OP that both agreement the agreement to sale dated 26-05-2010 is cancelled and OP agreed to refund the entire amount including interest that is Rs.10,50,000/- so, this MOU dated 31-07-2014 was executed by the OP and the complainant in continuation of the agreement to sale in between parties dated 26-05-2010 and by that agreement the previous agreement was cancelled on the ground of OP’s failure to construct the building by taking the sanctioned plan and to handover possession by 26-05-2011, so, under any circumstances, this MOU dated 31-05-2014 cannot be treated separately but it is nothing but a declaration on the part of the developer with the said agreement to sale deed dated 26-05-2010 which is cancelled and he is willing to refund Rs.10,50,000/- to the complainant.
Admitted fact is that the OP1 is a cheat developer because he failed to give possession within one year. As OP has no desire to construct the building he did not take sanctioned plan from the KMC for starting and in such a manner he harassed the complainant from 26-05-2010 to 31-07-2014 till the date when OP declared that by that MOU the previous agreement to sale dated 26-05-2010 is cancelled and he shall have to pay the amount as agreed that is Rs.10,50,000/- and under any circumstances, this MOU dated 31-07-2014 cannot be considered as a separate agreement but it is a declaration by the OP for non-compliance on his part to hand over possession within one year and not starting the said construction as per agreement. So, we are convinced to hold that this amount of Rs.10,50,000/- would be agreed to pay to the complainant for not any other purpose but as per agreement it was agreed by the OP to pay the same along with interest and that amount was fixed at Rs.10,50,000/- and that was agreed by the OP and truth is that complainant paid Rs.5 lakhs out of fixed consideration of the flat Rs.11 lakhs OP used that amount may provide for years together for four years till today but complainant did not get the flat or the amount as agreed to be paid by the OP is no doubt deficient manner of service but only for failure on his part not to discharge his liabilities or responsibilities as developer as per agreement to sale dated 26-05-2010 OP ultimately executed MOU.
Ld. Lawyer for the OP tried to convince that it is a separate agreement for refund of money the specific word refund Of money is related to agreement. But we find that as per clause of the agreement to sale dated 26-05-2010 and practically MOU of 31-07-2014 was made as per terms and condition as laid down in the para 3 and 4 of the agreement to sale dated 26-05-2010 and it is nothing but a declaration of both the parties that is the said agreement is cancelled and refund would be made by the OP but nothing more. It is not a separate agreement but it is a declaration on behalf of both the parties and particularly vital part of the declaration is made by the OP as per agreement to sale dated 26-05-2010 so MOU is the part and parcel of this agreement and when it is the fact then complainant is no doubt a consumer under the OP. Anyhow in the complaint this matter has not been properly explained and, in fact, legal proposition has not been discussed in the complaint for which apparently it is found that the case is filed on the basis of agreement to sale. Fact remains due to poor drafting of the complaint complainant cannot suffer and practically in most of the cases we have gathered that the drafting of the complainant is so poor that sometimes many Fora are rejecting the complaint and that is not our expression but it is often found in no other Fora and if investigation is made it would be found that most of the cases are rejected at initial stage or complaint is dismissed for defect etc. regularly by many Fora what we have observed, but this Forum has no such desire to reject the complaint but to dispose of the case on merit to increase the faith of consumer but if Fora cannot give relief then there is no necessity of Fora here and there to give proper relief to the complainant for which the complaint is filed and technicalities must be brushed aside and truth is that for poor knowledge of the complainant about the legal formation of a complaint sometimes complainant cannot get such relief from many Fora but this Forum has always the surveillance in this regard and this Forum is ready to see whether relief can be granted and whether there is material to grant relief even poor drafting is considered by this Forum and for poor drafting complaint cannot be dismissed and that is the principle of law and Hon’ble Supreme Court has already observed that Consumer Forum must not have to consider the technicalities but must have to see that there is ground for granting relief. So, considering all the above facts and circumstances, we are convinced to hold that this is a MOU it is not a new agreement but it was a MOU dated 31-07-2014 was executed in continuation of the close chapter of agreement to sale dated 26-05-2010 as per clause 3 and 4 of the said agreement. So, it is nothing but a declaration that the said agreement is cancelled and he is willing to refund the said amount.
Considering that fact it is found that complaint is maintainable and the present complainant is no doubt a consumer as per agreement and OP agreed to refund the said amount of Rs.10,50,000/- along with all interest which he is bound to pay as per agreement to sale and also consider OP’s own fault this OP agreed to refund Rs.10,50,000/- but this MOU cannot be treated as a separate agreement but this matter ought to have been written in the back side of the agreement to sale dated 26-05-2010 but in the present case that was not done in the separate paper only so, this paper shall be treated as part of that agreement that means it is a declaration of the parties after cancellation of the agreement to sale and by that MOU the agreement to sale is cancelled and it is a voucher or declaration part of the OP for which he shall have to pay Rs.10,50,000/-. Truth is that vide that MOU OP admitted his failure to give possession and that is breach of agreement so, he is a cheat developer. Truth is that most of the developer in West Bengal are cheat, dishonest and they have adopted unfair trade practice and acquired huge amount from the public and have been harassing the public in such a manner like this complainant. But most interesting factor is that these cheat developers are getting relief in the Forum by not paying compensation etc. and for which the cheat developers are very much trying to deceive the customers (intending purchaser) in such a fashion. It is to be mentioned in this regard in one disposed case of this Forum National Commission observed that till possession is delivered per month Rs.25,000/- compensation shall be paid to the intending purchaser and in that case developer was compelled to pay Rs.2,25,000/- as compensation and thereafter, possession was delivered and that order was no doubt as per spirit of the C.P. Act but such type of order is never received by this Forum from any higher Fora but that order was/is no doubt a positive step against the defaulting and cheat developer properly. Practically developers have extended their hands more to deceive the intended purchaser like the complainant.
On overall evaluation of the entire materials on record we are convinced to hold that complainant is no doubt a consumer under the OP and OP is bound to refund the said amount as agreed when agreement to sale has been cancelled by him also and MOU is nothing but a declaration of both the parties and truth is that MOU was executed by both the parties on 31-07-2014 and cheque was issued by the OP and even then it was dishonoured that means till today OP is in habit of deceiving the complainant and that is the deceitful manner of act on the part of said developer and for which such sort of practice continuously for 4 to 5 years complainant is being harassed b the OP and he has been suffering much and he has faced financial crisis and practically he has not been able to purchase such a flat by paying such amount which shall be paid by the OP as agreed upon by OP on the basis of the MOU dated 31-07-2014.
In the result, deficiency, negligence and adopting unfair trade practice and deceitful manner of practice is well proved for which the complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP1 and same is dismissed against OPs 2, 3 and 4.
OP1 is hereby directed to refund the agreed amount of Rs.10,50,000/- within one month from the date of this order failing which on expiry of the stipulated period of time OP1 shall have to pay 10 percent over the said amount till full satisfaction of the decree.
For adopting unfair trade practice and deceiving the complainant in such a manner and to check such sort of activities on the part of the OP1 and to save the intended purchaser from the hands of such unfair trade practitioner, developer a sum of Rs.30,000/- is imposed by this Forum and OP1 shall have to pay the same within one month from the date of this order.
Even if it is found that the OP is reluctant to comply this order in that case OP shall be prosecuted u/s.27 of the C.P. Act for which further penalty and fine shall be imposed.
