HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This complaint case under section 12 of the Consumer Protection Act, 1986 has been filed against the opposite parties praying for the following reliefs : -
“a) For an order directing the opposite parties to complete and/or perform the registration in respect of the said Unit No. B Upper Comprised in Third and Fourth floors of the Block No. DN-02 having a total super built up area of 2326 square feet more or less. Right to park one car at the demarcated space on the spaces located in the front side ground floor and also together with one servants’ quarter. User right of the Roof/Terrace of 767 square feet, under Police Station – Rajarhat, in the district of 24 Parganas North in accordance with the transfer of the right, title and interest of and in terms of the schedule –II of the agreement for sale in respect of the said Unit No.-B of the same morefully and particularly described in schedule ‘B’ herein below written Unto and to the favour of the complainant.
b) From order of permanent injunction restraining the opposite parties their such men and / or agents from creating any third party interest and / or alienating and / or assigning, and / or transferring and / or selling the said schedule ‘B’ herein below in any manner whatsoever to any third party, without the consent of the complainants.
c) For an order of declaration that the complainants / petitioners are entitled to the service as has been committed and / or assured to be rendered in terms of the schedule-II in respect of the agreement for sale of the said Unit No.-B by the opposite parties in respect of the registration and execution of the Deed of sale in regard to and in accordance with the right of transfer and / or sale of the said Unit No.-B described in the Schedule ‘B’ herein below written in terms of the prayer (a).
d) For an order directing the opposite parties to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) only as and by way of compensation as claimed, to the complainant / petitioner.
e) For all costs and advocate’s fees of the litigation as awarded suitably.
f) For other / further relief and / or reliefs the complainant / petitioner is entitled to in law and equity by this Learned Forum.”
2. During the pendency of the case the complainant No. 1 Rajesh Kumar Gupta passed away. After the death of Rajesh Kumar Gupta his sons namely Harsh Gupta and Manthan Gupta were substituted.
3. Briefly stated the complaint case, in short, are that the complainants were looking for an accommodation and desirous to purchase a Duplex Flat / Unit for their family in a good locality and in such circumstances, the complainants met the opposite parties and expressed their desire to purchase a Duplex Flat / Unit. The opposite parties made negotiation with the complainants whereby the opposite parties covenanted declared and agreed to sell of ALL THAT unit at ‘Duplex Natura’, Unit No. ‘B’ upper comprised in 3rd and 4th floors of the Block No. DN-02 having a total super built up area of 2326 sq. ft. more or less under P.S. Rajarhat in the district of North 24 Parganas.
4. Further case of the complainants are that the opposite parties represented themselves as a owner / developer and having a good reputation and goodwill in regard to and in accordance with the construction company and were honest in their dealings and as such there was no possibility of the complainants being duped in any manner whatsoever.
5. Further case of the complainants are that the opposite parties assured the complainants that the sale for the unit being sale of ALL THAT unit at ‘Duplex Natura’, Unit No. ‘B’ at a consideration of Rs.64,43,200/- (Rupees sixty four lakh forty three thousand and two hundred only). Out of the said consideration amount the complainants paid a sum of Rs.62,57,815/- (Rupees sixty two lakh fifty seven thousand eight hundred and fifteen only) to the opposite parties on different dates by obtaining the valid money receipt from the opposite parties. Last date of payment of earnest money was 31/04/2016. On receipt of the said earnest money and acknowledging the same the opposite parties issued valid money receipt in respect of the said unit No. ‘B’.
6. The opposite parties undertake to execute the registered Deed of Conveyance and to deliver possession of the said unit No. ‘B’ in favour of the complainants within 24 months from the effective date of the agreement.
7. Further case of the complainants is that the complainants on several occasions requested the opposite parties to accept the balance consideration amount of Rs.1,85,385/- (Rupees one lakh eighty five thousand three hundred and eighty five only) and to register the said unit No. ‘B’ in favour of the complainants.
8. Further case of the complainants is that the complainants requested several times orally and through phone to the opposite parties to execute and register the Deed of Sale in respect of the said Unit No. B but the opposite parties evading and avoiding and being reluctant to register the Deed of Sale for the reasons best known to them. As such, the complainants sent legal notice on 25/08/2018 upon the opposite parties through their Learned Advocate. But the opposite parties did not comply with the said requirements of the legal notice. As such, the complainants were compelled to file the present case. Hence, this case.
9. Notices were duly served upon the opposite parties. The opposite party Nos. 2,4 & 5 did not appear and did not contest the case. As such, the case was proceeded ex parte against the opposite party Nos. 2,4 & 5.
10. The opposite party Nos. 1 & 3 entered appearance in this case by filing written version denying the material averments of the petition of complaint filed by the complainants. Their specific case is that the agreement for sale dated 21/04/2014 was entered into between the parties. By such agreement the complainants were liable to pay Rs. 64,43,200/- (Rupees sixty four lakh forty three thousand and two hundred only) as the total consideration amount for the purpose of the unit from the opposite parties. The complainant / petitioner has not paid the entire consideration amount to the opposite parties. The complainant has booked the flat for sale for the commercial purpose. As such, the consumer case is not maintainable in law. As such, the opposite party Nos. 1 & 3 have prayed for dismissal of the complaint case. The complainants filed their evidence on affidavit which was challenged by the opposite party No. 1 putting questionnaire. The complainants gave reply to such questionnaire filed by the opposite party No. 1. No questionnaire is filed by the opposite party No. 3. As such, the opportunity for filing questionnaire by the opposite party No. 3 was closed. The opposite party Nos. 1 & 3 did not file any evidence on affidavit in support of their case. Now, the points for considerations are that :
i) Whether the complaint case is maintainable ?
ii) Whether there is any deficiency in service ?
iii) Whether the complainants are entitled to get any relief as prayed for ?
iv) What other relief / reliefs, if any, are the complainants entitled to ?
Decisions with reasons :
All the reasons are taken up together for consideration for their brevity and their interrelatedness.
11. Having heard the Learned Advocate appearing for the complainants and on perusal of the materials available on record and the written version filed by the opposite party Nos. 1 & 3 it appears to me that it is an admitted position that the opposite parties entered into an agreement for sale on 21/04/2014 at Duplex Natura Unit No. B upper comprised in 3rd and 4th floors of the Block No. DN-02 having total super built up area 2326 sq. ft. more or less under police station Rajarhat in the district of North 24 Parganas within the jurisdiction of ADSR, Bidhannagar.
12. It is also an admitted position that vide such agreement the complainants were liable to pay Rs.64,43,200/- (Rupees sixty four lakh forty three thousand and two hundred only) as total consideration amount for the purpose of the said unit / flat from the opposite parties.
13. It is also an admitted position that it was agreed between the parties that the opposite parties will execute and register the Deed of Conveyance in favour of the complainants and will deliver khas possession of the said unit ‘B’ within 24 months from the effective date of the agreement which was assured by the opposite parties. Now, I shall have to consider as to whether the complainant intended to purchase the said unit ‘B’ for commercial purpose and whether there was any deficiency in service on the part of the opposite parties.
14. The complainants have produced a copy of the agreement for sale dated 21/04/2014 ‘Duplex Natura’ unit at GreenTech City executed between the complainants and the opposite parties which discloses that the complainants and the opposite parties entered into an agreement for sale of unit No. ‘B’ to the complainants at a consideration of Rs.64,43,200/- (Rupees sixty four lakh forty three thousand and two hundred only).
15. To prove the case the complainant has produced the money receipts showing payment of Rs.62,57,815/- (Rupees sixty two lakh fifty seven thousand eight hundred and fifteen only). The complainants have filed a copy of money receipts which have been marked Annexure P2 to the petition of complaint (page Nos. 41 to 74). The opposite parties did not deny and dispute the said copy of money receipts filed by the complainants. Therefore, it may be concluded that the complainants have paid a sum of Rs.62,57,815/- (Rupees sixty two lakh fifty seven thousand eight hundred and fifteen only) towards earnest money out of total consideration amount of Rs.64,43,200/- (Rupees sixty four lakh forty three thousand and two hundred only).
16. In the written version the opposite parties have stated that the complainants are not a consumer as the complainants intended to purchase the said unit ‘B’ for commercial purpose. Record goes to show that the opposite parties did not adduce any evidence and did not file any papers to prove that the complainants intended to purchase the said Unit B for commercial purpose. Therefore, it cannot be said that the complainants have booked the flat for sale for the commercial purpose and the complainant is not a consumer. Under these facts and circumstances I hold that the complaint case is quite maintainable in law.
17. To prove the case the complainants filed the evidence on affidavit in support of their case. From the evidence of the complainants it appears that after expiry of the stipulated period the opposite parties did not deliver and did not execute and register the Deed of Conveyance and did not deliver the possession of the Unit ‘B’ in question to the complainants. According to the complaint case the complainant gave demand notice to the opposite parties through his Learned Advocate but the opposite parties did not comply the requirements of the said demand notice dated 25/08/2018. Record goes to show that the opposite parties duly replied on 03/09/2018 the said demand notice dated 25/08/2018. Therefore, the cause of action of the instant case arose on and from 03/09/2018.
18. On careful consideration of the pleadings, evidence on record including the documentary evidence filed by the complainants I am of the opinion that the complainants have been able to prove their case as there is deficiency in service on the part of the opposite parties. The complainants have cause of action to file their case and, as such, they are entitled to get relief as prayed for.
19. All the points are thus decided and disposed of in favour of the complainants and against the opposite parties. So, the complaint case succeeds.
20. In view of the discussion above, the complaint case be and the same is allowed. I direct the opposite parties to execute and register the Deed of Conveyance within 45 days from the date of passing of the order on receipt of the balance consideration amount of Rs.1,85,385/- (Rupees one lakh eighty five thousand three hundred and eighty five only). The cost of such registration shall be borne by the complainants.
21. It is also ordered that at the time of offer of possession, the opposite parties shall pay delay compensation to the complainants in the form of interest @ 9% per annum, on their deposits, from the due date of possession as per their agreement till the date of offer of possession.
22. The parties do bear their own respective costs of this proceeding.
