For the O.P.Nos. 1, 2&3: None.
For the O.P.No.4: None.
DATE OF FILING: 5.12.2013
DATE OF DISPOSAL:12.4.2016.
Miss S.L.Pattnaik, President:
The complainant namely N. Vimsi Krishna, 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 Opposite parties to sell independent flats by constructing multi storied building to the interested purchasers as per given in the schedule Second floor for Rs.8,46,750/- to an extent 1129 sq.ft. Wing-B, Block-C, Flat No.207. Accordingly the complainant paid a sum of Rs.5,00,000/- on different dates in shape of Bankers cheque bearing No.948135 dated 6.9.2010 of SBI for Rs.2,00,000/-, Cheque No.903138 dated 14.9.2010 for Rs.2,00,000/- and a cash of Rs.1,00,000/- 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 16th September 2010 by incorporating terms and conditions, in which condition No.4 has been specified that the O.P. 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 O.P.No.1,2,3 but intentionally did not construct the flats as agreed and on the other hand sold the land in question to the O.P.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.Ps 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. 5,00,000/- together with interest @12% per annum which was received by the complainant from O.Ps 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 Indenture is made and executed at Berhampur bearing No. C 60267.
(B ) Xerox copy of sale deed.
(D) Xerox copy of money receipts.
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 was 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 16th day of September 2010 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.
The said construction agreement discloses as follows:-
- WHERE AS, the owner has prepared a scheme for development of the land by construction of high rise multi storied building, comprising of independent flats, for and on behalf of the intending flat owners and as step in that direction of the owner has entered, into an agreement with M/s. GREEN INDIA INFRA PROJECTS LIMITED, Berhampur conferring power and authority on developer to construct multistoried apartment complex for the benefit of several intending flat owners.
- WHEREAS, the first party will raise the proposed multistoried building in the name and style of M/s. GREEN INDIA INFRA PROJECTS LIMITED. Berhampur and the second party here in expressed his desire to purchase the undivided and impartable share consisting of Flat No. 207, Wing – B, Block – C of an extent 1129 Sqft. Of Second Floor for a sum of Rs. 8,46,750/- (Rupees Eight Lakhs Forty Six Thousand Seven Hundred and Fifty)only.
- WHEREAS, the first party being the landowner and expressed his intention to transfer and convey the proportionate impartibly undivided share in favour of the second party for & consideration amount of Rs. 8,46,750/- (Rupees Eight Lakhs Forty Six Thousand Seven Hundred and Fifty) and the second party having accepted the offer, an concluded contract has culminated, several terms and conditions pertaining to the contract has been agreed upon and settled by and between the parties.
- WHEREAS, on mutual and bilateral negotiations and discussions held between both the parties and finaly the sale consideration of Rs. 8,46,750/- (Rupees Eight Lakhs Forty Six Thousand Seven Hundred and Fifty) has been fixed and concluded for the property fully described in Para-III below being the prevailing market price and have entered in to this written Agreement in acknowledgment of the terms and conditions set forth herein.
- WHEREAS, the second party has paid an earnest/advance sum of Rs. 5,00,000/- (Rupees Five Lakhs) to the first party in shape of Bankers Cheque bearing No. 948135 of S.B.I, Dt. 06/09/2010, of Rs. 2,00,000/- (Rupees Two Lakhs). Bankers cheque bearing No. 903138 of S.B.I. dated 14.9.2010 of Rs.2,00,000/- (Rupes two lakhs , and Rs.1,00,000/- (Rupees One Lakh) Cash, thus in total of Rs. 5,00,000/- (Rupees Five Lakhs) in the presence of the witnesses out of the total sale consideration and the first party has acknowledged the receipt of the same.
- WHEREAS, the second party shall pay anther sum of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand) out of the sale consideration within 45 days from the execution of this document to the first party and the second party shall pay the rest amount of Rs. 96,750/- (Rupees Ninety Six Thousand Seven Hundred Fifty) out of the sale consideration to the first party at the time of Registration of the Sale Deed/Deeds.
- WHEREAS, after payment of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand) by the second party to the first party, the first party shall execute separate Land/Construction Agreement in favour of the second party as stated in clause No. 8 of this Agreement.
- WHEREAS, the first party has agreed with that of the second party to execute and register the sale Deed/Deeds in favour of the second party or his nominee/nominees and the second party shall make payment of the balance sale consideration to the first party at the time of execution and registration of the sale Deed/Deeds.
7. On perusal the indenture is made and executed between the parties complainant paid a sum of Rs.5,00,000/- on different dates in shape of Bankers cheque bearing No.948135 dated 6.9.2010 of SBI for Rs.2,00,000/-, Cheque No.903138 dated 14.9.2010 for Rs.2,00,000/- and a cash of Rs.1,00,000/- towards the sale consideration of land and building.
8. 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.5,00,000/- 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.
11. In view of our fare 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.5,00,000/- (Rupees Five lakhs ) 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 disputes 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.
