SHRI REYAZUDDIN KHAN,MEMBER
This is an application U/s.35 of the C.P. Act, 2019.
The fact of the case in brief is that the Complainants was looking for residential flat and at the same time the complainants came in contact with the OP1 and expressed their willingness to purchase a residential apartment being Unit No.A3 having super built up area of about 1835 Sq.ft on the third floor of Block-03 along with balcony,garden and one demarcated car parking space in the Zone named “Terrace Height” in the project of OP1 called”Green Tech City” situated under Rajarhat,P.S ,Chandpur Panchayat,Bidhannagar (SaltLake)District,24-Parganas(North) West Bengal .Accordingly, the complainants executed an agreement for sale on 18.12.2014 at the total consideration amount of Rs,58,46,750/ through OP2 a marketing agent of OP1.The complainants stated that as per said agreement the possession of the flat to be delivered within 24months from the date of the execution of the sale deed ie,18.12.2014 subjects to the construction linked payments schedule provided by OP1.The complainants obtained the housing loan provided by OP3 through sanctioned letter BR:CR:2014-15/297 dated 21.11.2014 under the Direct Housing Finance Scheme to the tune of Rs,45 lakhs and as per the sale agreement the loan amount was to be disbursed directly to the account of the OP1.The arrangement of finance was made by the OP3 at the instance of OP1 through their marketing agent OP2 against the security of mortgaged of the proposed flat purchased by the complainants at a floating rate of interest.The complainants submitted that they paid total amount of Rs,19,31,932/ out of which Rs,8,57,725/ was paid on diverse dates by the complainants from their own resources and Rs,10,74,207/ was paid through the Home loan account No.3928882589 directly to OP1’s account.It was alleged by the complainants that in-spite of payments to the OP1 in due time the construction work not started till December,2017 though the flat was scheduled to be delivered within 24 months from the date of the execution of the sale deed dated 18.12.2014.
The complainants stated that due to the latches and failure of the OP1 to complete and deliver possession of the said flat to the complainants in accordance with the said agreement for sale and the increasing Bank’s penal rate on the aforesaid home loan the complainants compelled to take decision of cancellation of the said agreement by communicating to OP1 vide email and letter both dated 23.01.2018.At the instance of OP2 a negotiation and cancellation of agreement took place dated 14.06.2018 by and between the complainants and OP1and further, OP1 agreed to refund the entire amount of Rs,19,31,932/ including the amount paid by OP3.It was also agreed in the said negotiation that OP1 would borne the interest on the said home loan till the loan was closed and the said agreement was communicated by the OP1 to OP3 vide letter dated 14.06.2018.The complainants further stated that in-spite of all negotiations and agreement the OP1 and OP2 only refunded Rs,8,57,725/ (Rupees Eight Lakh Fifty Seven Thousand Seven hundred Twenty five)Only and Rs,10,74,207 (Rupees Ten Lakh Seventy Four Thousand Two hundred Seven) only remains unpaid.OPs failed to take any effective step towards payment of the said loan due amount.So,The complainants wrote a letter through their Ld.Advocate dated 19/20 October,2021 to the OP1 but it remained unattended.On 14.02.2022 OP3 issued by their advocate demanded an arbitrary and unjustified amount of Rs,17,26,285.50/ from the complainants on account of the said loan account no.3928882589 instead of demanding from OP1 and OP2.The complainants denied through the letter dated 28.03.2022
The complainants submitted that the deliberate failure on the part of OPs for payment of the due amounts is a willful negligence and deficiency in service.They have not refunded the said sum of Rs,10,74,207/ to OP3 any money towards interest on the said home loan stand at Rs,17,26,285.50 as on 14.02.2022 which also amounted to deficiency in service and unfair trade practice. The complainants further stated that the acts and conducts of the OPs confirm the deficiency in service and the complainants are entitled to get the reliefs in terms of the prayers of the complainants mentioned in complaint petition.
OP 1 filed their WV on 07.11.2022. No WV has been filed by OP3.It appears from the record that the notices have been served for filling WV on 14.07.2022.Stipulated period for filling WV by the OP1 & OP3 have already been elapsed and the case do proceed ex-parte against the OP1 & OP3.
OP2 filed their WV on 08.08.2022.It is stated in the WV that the OP2 was mererly an introducer to the project of the developer. There is no legal relationship or privity of contract between complainants and the OP2 at any point of time.All the payments have been made by the complainants in the name and account of the developer,ie OP1.It is submitted by the OP2 that OP has not provided any services to the complainants or any other allottees in lieu of any consideration to be paid by the complainants. Hence,
Allegations made against the OP2 are false ,incorrect and unsustainable and bad in law and facts.The complainants are not entitled to get any relief against the OP2 and this complaint must be dismissed with heavy costs.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs is deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainants are entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainants have filed his Evidence supported by affidavit. The complainants have executed an agreement for sale on 18.12.2014 with the OP1 for purchase of a residential flat and car parking space being unit No.A3 on the 3rd floor in block 03 in the Zone named “Terrace Height” constructed by OP1 in their project “Green Tech City”situated under Rajarhat,P.S ,Chandpur Panchayat,Bidhannagar (SaltLake)District,24-Parganas(North) West Bengal measuring about a super built up area of 1835 sq.ft.with demarcated car parking space for a consolidated consideration amount of Rs,58,46,750/(Rupees Fifty Eight Lakhs Forty six Thousand Seven Hundred Fifty)only.As per the construction linked payment plan of the OP1,the complainants availed a Home loan finanace of Rs,45 Lakhs /- (Rupees Forty Five Lakhs)only from the OP3 against security of mortgage of the said proposed flat.The complainants have paid a total amount of Rs,19,31,932//- (Rupees Nineteen Lakhs Thirty one thousand Nine hundred Thirty two) only till 05.03.2015 to the OPs out of which a loan from of Rs,8,57,725/ was paid to the OP1from their own resources and Rs,10,74,207/ as disbursed by OP3 directly to the account of OP1on account of purchase of the said flat where the OPs were oblige to bear the payment schedule as per the progress of construction till the possession of the flat is handed over to the complainants. But the OPs have not started the construction of the subject flat citing several reasons after elapsed of the stipulated period of 24 months being effective date 18.12.2014 and the flat was scheduled to be delivered by 18.12.2016 in terms of agreement for sale.
From the conduct and intention of the OPs regarding the completion of the project in due time and negligence attitude on the part of the OPs,the complainants requested the OPs through emails,letters for cancelation of sale agreement and refund of their deposited money as because of the interest at the increasing panel rate on the complainants home loan and circumstances led to financial crisis compelled the complainants to take such decision.
It is admitted fact that OP1 refunded a sum if Rs,8,57,725/ to the complainants out of the said amount of Rs,19,31,932/
It is also admitted by OP1 through the letter dated 14.06.2018 to the The Manager Central Bank,Bhowanipur Branch with reference of MOU dated 14th June 2018 the interest against the loan amount of the complainant would be borne by the OP1(Developer) till the loan get closed.
From the letter dated 14th June 2018 from Green Tech IT City Pvt.Ltd it is crystal clear that the OP1 accepted that they would pay the interest against the loan amount of Mr.Gautam Mukherjee till the loan get closed.So demanding the loan amount along with interest from the complainants is not justified and it also amounted the deficiency of service on the part of OP3.As the loan was issued against the mortgaged of the said flat in question so,the Bank have every right to demand/recover the balance with interest amount from OP1.
So far the involvement of OP2 is concerned who is the marketing representative of OP1 was involved in all affairs right from the booking of the said flat till the cancellation of the agreement.OP2 took active part in all the communications with the complainants. So OP2 cannot be escaped from their liability and deficiency of service with OP1.
As per Fortune Infrastructure and Anr,Vs Trevor D’Lima and Ors (2018) 5 SCC 442 where it was held by the Hon’ble Supreme Court that:-
“It must be noted that the law is well settled in this regard.Whenever the Builder has refused to perform the contract without valid justification,the buyer is entitled for compensation as he has been deprived of price escalation of the flat.Every breach of contract gives rise to an action for damages.Such amount of damages must be proved with reasonable certinity.
“In another Judgement The Hon’ble Supreme Court in Kolkata West International City Pvt.Ltd Vs Devasis Rudra in Civil Appeal No.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd.Vs Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725 has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid redressal”.
Thus, it stands proved that despite of having received of Rs,19,31,932/ the OPs have refunded only the complainants part of Rs,8,57,725/ which paid from their own resources and failed to refund the Bank’s loan amount with interest which they committed . In absence of any explanation for failure to comply with the stipulation of refund of deposited amount, we have no hesitation in concluding that the OPs have committed deficiency in service and also has indulged in unfair trade practice
Keeping in view of the above cited Judgments and based on the fact and circumstances of the present case,we are of the considered opinion that the Complainants have established the case against the OPs.
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case be and the same is allowed contested against the OP2 and Ex-parte against OP1 & OP3.
1.OP1 is directed to refund the balance amount along with interest as full and final settement by way of construction linked payment plan in respect to the said Home loan Account No.3928882589 as provided under the said agreement 18.12.2014 to OP3 Bank
2. The OP1 & OP2 are further directed to pay jointly or severely Rs.50,000/- (Rupees Fifty Thousand )only to the complainants as compensation for causing harassment and mental agony
3. OP3 is directed to recover the dues amount from OP1 as per the letter dated14.06.2018.
4.OP1 & OP2 are directed to pay jointly or severely Rs. 15,000/- (Rupees Fifteen thousand) only as litigation cost.
Complainant put the order into execution, if the OPs transgresses to comply the order according to Consumer Protection Act, 2019 after the expiry of 60 days.
