DATE OF FILING: 5.12.2013
DATE OF DISPOSAL: 12.4.2016.
Miss S.L.Pattnaik, President:
The complainant namely Krushna Chandra Patro has filed the present complaint case for compensation and other reliefs against the Opposite Parties) in short O.Ps) thereby alleging unfair trade practice, deficiency in service in respect of a transaction entered in to between the parties through a written agreement for the purpose of purchase of a flat by the complainant from the O.Ps for valuable consideration.
2. Briefly stated, the case of the complainant is that in pursuance to an advertisement made by the O.Ps No.1 being the owner of the schedule property for selling of flats under the name and style of “Green India Infra Projects Ltd”, the complainant became interested and agreed to purchase a flat as intended by the opposite partes to sell independent flats by constructing multi storied building to the interested purchasers as per given in the schedule carpet area @ Rs.877/- per sq.ft. to a total area of 1097 sqft. Amounting to total consideration of Rs.9,62,069/- for a flat on 2nd floor, Wing-4, Block-B, Flat No. 212. Accordingly the complainant paid a sum of Rs.9,60,000/- on different dates in shape of Bankers cheque bearing No. 128732 dated 19.11.2010 of SBI for Rs.1,00,000/- cheque No. 12833 dated 15.12.10 for Rs.2,00,000/- cheque No. 128734 dated 12.1.2011 of SBI of Rs.1,00,000/-, Cheque bearing No.050044 dated 15.8.2011 of ICICI Bank for Rs.3,00,000/- and cheque bearing No.128735 dated 26.8.2011 of SBI for Rs.1,60,000/- towards the sale consideration of land and building with an assurance by the O.P.No.2 that the flat will be handed over by his company, after the completion of construction and the deed of registration will be executed for the same.
Accordingly an agreement was executed by the O.P.No.2 as the M.D. of the O.P.No.1 Company with the complainant on 15th September 2011 by incorporating terms and conditions, in which condition No.4 has been specified that the Opposite party, after completion of the building in question shall grant convey, assign and transfer the importable, proportionate share in respect of the land in favour of the complainant with all rights for possession and enjoyment. It is alleged by the complainant that when the matter was remained as such he could come to know that the O.P.No.1, 2, 3 fraudulently and dishonestly sold the said land by O.P.No.3 to the O.P.No.4 behind his back by cheating and causing pecuniary loss and depriving him from his legitimate right of getting the flat to live his retirement life comfortably.
3. The complainant further alleged that since the O.P.Nos. 1, 2, 3 have received huge amount from the complainant with a promise to sale the flat but he has not adhered to the contract provision as such they have violated the terms of the contract. The op no. 1, 2, 3 but intentionally didn’t construct the flats as agreed and on the other hand sold the land in question to the op no. 4 in gross violation of the terms and conditions of the contract. As a result the complainant is put into huge pecuniary loss and damage and mental agony for losing his money as well as the flat which he was intended to purchase from the O.P.No.1, 2, 3. The complainant after being failed to get his assured flat from the O.Ps reported the matter against the O.P.No.2 before the B.Town Police Station on 4.8.2013 and the same was registered by the police vide P.S. case No. 152 dated 4.8.2013 Under Section 420/506 IPC and the investigation is in progress. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P no. 1, 2, 3 to handover the flat completed in every respect as detailed in the contract to the complainant by the O.P.Nos 1, 2, 3 or in the alternative to refund Rs. 9,60,000/- together with interest @12% per annum which was received by the complainant from O.P 1, 2, 3 and compensation of Rs.2,00,000/- for mental agony in the best interest of justice.
4. The complainant in support of his case filed the following documents.
(A) Xerox copy of construction agreement bearing No. B 819035
(B) Xerox copy of land agreement bearing No. B 795118
(C ) Xerox copy of sale deed.
(D) Xerox copy of money receipts.
(E) Xerox copy of F.I.R.
5. Notices were issued against the O.Ps 1 to 4 but the notices were not served upon them and returned with endorsement “Left and office closed since long time “respectively. But after publication of notice through paper on 14.2.2014 in daily Samaj the O.P.No. 1, 2, 3 appeared on dated 11.3.2014 through their advocate and prayed for time to file written version which was allowed by the Forum. Since publication of notice in paper the O.P.No.4 did not appeared, hence he was declared as set exparte on dated 3.12.2015 although sufficient time was allowed by the Forum. Although O.P. Nos 1,2,3 appeared but did not filed any written version, hence they are declared as set exparte on dated 9.2.2016.
6. On perusal of records it reveals that memorandum of construction agreement and memorandum of land agreement were executed between O.P.No.2 namely Green India Infra Projects ltd. represented through its Managing Director Sri Pradeep Singh, s/o late Rajendra Singh resident of Somanathnagar, Berhampur herein after called the “Builder/promoter as 1st party and the complainant as a second party intending flat owner in presence of witness, on dated 15th day of September 2011 in respect of the land covered under plot No. 2217 to 2219, 2221, 2223 to 2237 of khata No. 983 in Mauza Haladiapadar of district Ganjam where the party of the second part has acquired an indefeasible right to construct an apartment at his cost for the purpose of residential accommodation over the land in question in the proposed multistoried housing complex in the name and style of “GREEN PARADISE” and under scheme of the aforesaid agreement, the owner has vested the right upon the party of the second part to erect and construct the apartment through the builder (party of the first part) in consonance with the plan/plans, sanctioned/approved by the Berhampur Development Authority.
In the said construction agreement bearing heading “This agreement witnesses as follows:-
(i)That, the intending flat owner (Party of second party) hereby appoints the party of the first part as Builder/promoter to construct a Flat/Apartment on his behalf having a super built-up area of 1097 sqft on 2nd floor, Wing-A, Block-B, Flat No. 212 the proposed multistoried residential housing complex in the name and style of ‘GREEN PARADISE” over the land in question.
(ii)That, the builder hereby undertakes to construct the building as agreed between the parties on behalf of the intending flat owner of the Apartments for residential establishment having an approximate supper built area of 1097 sqft in the 2nd floor, Wing-A, Block-B, assigned Apartment No. 212.
(iii) That, the intending flat owner has paid the sale consideration stated of the Apartments to the party of the first part-land owner/Builder herein. The construction cost of the Apartment is for the super built up area of the flat which includes the construction cost of plinth “1” watchman room common passage.
(iv) That, upon completion of the construction of the Apartment as well as the common areas and facilities, the builder shall execute a document in writing, delivering possession and evidencing the fact that the entire construction cost of the Apartments has been paid by the intending flat owner to the builder. For the purpose as aforesaid, the builder is not required to execute any registered conveyance.
(v) That, it is mutually agreed upon that after delivery of possession is given to the intending flat owner upon his paying the total construction cost as agreed upon, he shall have the right to enjoy the Apartment peaceable as absolute owner thereof without disturbing or impairing the rights of other occupants/owners.
(vi) That, the promoters will indemnity the intending flat owner against any loss, damage, etc. due to the defect in the title of the premises.
7. On perusal of the Bankers cheque bearing No. 128732 dated 19
.11.2010 of SBI for Rs.1,00,000/-, Cheque No. 12833 dt.15.12.2010 for Rs.2,00,000/-, Cheque No.128734 dt.12.1.2011, of S.B.I for Rs.1,00,000/-, Cheque No.050044 dt.15.8.2011, of ICICI Bank for Rs.3,00,000, Cheque bearing no. 050046, dt. 15.08.2011, of ICICI Bank, for Rs. 1,00,000 and cheque bearing no. 128735, dt. 26.08.2011, of S.B.I for Rs. 1,60,000 towards the sale consideration of land and building.
8. Further on perusal of the money receipts bearing No.1811 dated 26.08.2011 of Rs.1,60,000/-, money receipt bearing no. 1805 dated 15.08.11money receipt bearing no. 4732, dt. 12.01.2011 of Rs. 1,00,000/-, money receipt bearing no. 4650, dt. 15.12.2010 of Rs. 2,00,000/-, money receipt bearing no. 4690, of Rs.1,00,000/- respectively in total of Rs. 9,60,000 as per the memorandum of agreement issued by Green India Proprietors pvt. Ltd. Reveals that the said receipts have been issued by opposite parties in favour of the complainant towards purchase of flat proves in support of the grievance of the complainant, that the O.Ps received money from the complainant. Further regarding the allegation of complainant the ops 1, 2, 3 although appear but didn’t appeared but didn’t filed any written version nor choose to contest the case to counter through any cogent and convincing evidence which given weight age to the grievance of the complainant.
9. We have gone through the case in detail, perused the documents filed by the complainant and heard the learned counsel appearing for the complainant at a length. From the above facts, it is clear that the complainant has deposited a sum of Rs.9,60,000/- to purchase a flat from the Opposite Parties. Thus, in our opinion, in the present circumstances, there is no escape of the O.Ps, as the Opposite parties neither allot any flat in his favour nor make any correspondence with the complainant after receipt of a lump sum.
10. In this perspective we also hold that in the present society there are innumerable instances like that of the present case where a person is allured by different advertisements at the instance of the construction companies thereby assuring different kinds of amenities annexed to the housing complex and under such circumstances, individuals are attracted to the fanciful allotment and fall pray at the hands of the promoters and/or builders. The complainants are consumers in the true sense of the consumer Protection Act and that there is deficiency and unfair trade practice at the instance of the O.Ps as claimed by the complainant. In this respect the two decisions filed by the complainant holds good to the instant case.
In view of our fore going discussions, we allow the case of the complainant and direct the Opposite Parties 1, 2 and 3 as per the prayer of the complainant who are jointly and severally liable to refund Rs.9,60,000/- (Rupees Nine lakhs and sixth thousand ) only to the complainant together with interest thereof at the rate of 6% ( six percent) per annum from the date of filing of this case i.e. on 5.12.2013 till its actual payment. The Opposite Parties 1, 2 and 3 are also directed to pay a sum of Rs.2000/- (Rupees two thousand) only towards cost of litigation to the complainant. The above amount have to be paid by the O.P. Nos 1,2 and 3 within 60 days from the date of receipt of this order failing which the entire amount shall carry interest at the rate of 9% (Nine percent) per annum thereafter. Since in this dispute as discussed above, there is no specific prayer of the complainant, against O.P.No.4, the case is dismissed against him. The case is disposed of accordingly.
Order is pronounced in the open Forum today on 12th April 2016.
Copy of the order be furnished to the parties free of cost.
