Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 30.10.2017

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties:-

1. To direct the opposite party no. 7 and 8 to give the possession of flat no. 103, in Kush Apartment, A – Block, North Rukunpura, Patna immediately as per the sale agreement dated 15.10.2007, after reconstruction as per the said agreement.
2. To direct the opposite parties to pay Rs. 20,00,000/- ( Rs. Twenty Lakh only ) as compensation and litigation costs.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that he has entered into an agreement for sale with opposite party no. 7 for purchasing the flat no. 103 in Kush Apartment, A – Block, North Rukupura, Bailey Road, Patna, the copy of the aforesaid agreement has been annexed as annexure – 1. The total cost of the flat including generator, electricity and the parking was assessed as Rs. 7,41,000/- out of which the cost of flat was Rs. 7,11,000/- and the cost of parking was Rs. 30,000/-. Thereafter a triparty agreement was entered between complainant, opposite party no. 1 and opposite party no. 7 on 25.10.2007. As per agreement opposite party no. 1 agreed to finance an amount of Rs. 6,25,000/- out of which the opposite party no. 1 disbursed a sum of Rs. 2,00,000/- on 30.10.2007, Rs. 2,50,000/- on 21.11.2007 the photocopy of triparty agreement has been annexed as annexure – 2.

It is further case of the complainant that he had paid an amount of Rs. 1,11,000/- to opposite party no. 7 on four different dates mentioned in Para – 5 of complaint petition. Thereafter the complainant has also paid to opposite party no. 7 i.e. builder, the amount of Rs. 70,000/- through 3 cheques dated 10.09.2007, 12.09.2007 and 02.11.2007 the details of which have been mentioned in Para – 7 as well as annexure – 4 series. The aforesaid amount of Rs. 70,000/- has been paid over Rs. 1,11,000/- as per demand of builder although as per agreement for sale i.e. annexure – 1 the complainant had to pay only Rs. 1,10,000/-. On enquiry from the complainant about the payment of extra Rs. 70,000/- opposite party no. 7 assured him to settle the matter at the time of final payment and opposite party no. 7 also informed the complainant vide letter dated 10.03.2008 that payment were not made as per schedule ( annexure – 5). When complainant met opposite party no. 7 and communicated him that cost of valuation of that flat on that very day was Rs. 5,66,800/- as per assessment of valuer of opposite party no. 1 and he had paid Rs. 6,31,000/- but no further work had been done after the veluer report prepared on 25.10.2007. The complainant has further demanded from opposite party no. 7 details of any other dues against him as will appear from annexure – 6. Thereafter the builder vide letter dated 25.04.2008 has intentionally informed the complainant to clear the entire due with interest by 10.05.2008 mentioning the fact of possible cancelation and the same have been informed to opposite party no. 1 to 6 also. The complainant thereafter telephonically contacted opposite party no. 7 and enquired about the letter dated 25.04.2008 referred above. The opposite party no. 7 informed the complainant that some work has been done in his allotted flat and also demanded payment and thereafter the complainant demanded disbursement letter and opposite party no. 7 sent the disbursement letter to the complainant on 02.05.2008. After receipt of the aforesaid disbursement letter, complainant send his consent letter dated 03.05.2008 to opposite party no. 7 for disbursement of Rs. 1,00,000/- to opposite party no. 7. In spite of the fact that by the time more than 40% work was incomplete. The complainant has taken extra interest in this matter so that the payment could be made on time. The complainant vide letter dated 10.05.2008 (annexure – 8) informed the builder that a cheque of Rs. 1,00,000/- ( on behalf of opposite party no. 1 in favour of opposite party no. 7) was ready in the office of opposite party no. 1.

It has been further asserted by the complainant that cheque no. 022442 dated 07.05.2008 for Rs. 1,00,000/- was ready in the office of opposite party no. 6 which was communicated to opposite party no. 7 but for the reason best known to opposite parties neither opposite party no. 7 received the cheque after intimation nor opposite party no. 6 caused the same to deliver to opposite party no. 7. Had the opposite party no. 7 received the amount the total consideration amount received by the builder would have been Rs. 7,31,000/- only Rs. 10,000/- would have remained to be paid.

The further case of the complainant is that construction work was not complete as per schedule of sale agreement which was brought to knowledge of the opposite parties vide letter dated 10.05.2008 but opposite party no. 7 has not received the same letter and has cancel the allotment of flat no. 103 in Kush Apartment allotted in favour of complainant due to non payment of dues by opposite party no. 6. Accordingly agreement for sale dated 15.10.2007 made between complainant and builder was cancelled by opposite party no. 7 with immediate effect ( annexure – 10).

It has been also stated that flat no. 103 in Kush Apartment has been demolished by opposite party no. 7 and this fact has been brought to opposite party no. 1 to 6 by the complainant vide his letter dated 27.05.2008 and 16.06.2008 ( annexure – 11 and 12). The complainant thereafter tried to sort out the matter and for that purpose met opposite party no. 8 on suggestion, avoided meeting and this fact has been brought to knowledge of opposite party no. 6 by complainant ( annexure – 14). Opposite party no. 6 has also written a letter to the builder asking him retrun entire amount paid on behalf of opposite party no. 1 but there was no mention of restoration of flat to the complainant ( annexure – 15).

It is further case of the complainant that despite letter and repeated request opposite parties have not taken any step for redressal of his grievance.

The complainant has also asserted that he has been cheated in whole transaction by the opposite parties who have hand in glove with each other in harassing the complainant.

On behalf of opposite party no. 1 to 6 a written statement has been filed stating therein that the complainant entered in an agreement with the builder to purchase a flat in Kush Apartment for consideration of Rs. 7,40,000/- . The complainant made an application for loan and the opposite party no. 1 and 6 agreed for the same against on collateral security of the said flat. Builder also agreed to the terms and condition of the loan and thereafter a triparty agreement was signed. After documentation the loan was sanctioned and Rs. 4,50,000/- was disbursed in favour of builder.

It has been further asserted that as per terms of triparty agreement the builder has liquidated the entire outstanding loan of the complainant and this fact has been communicated to the complainant and as such the opposite party no. 1 to 6 have committed no wrong and cannot be held responsible for deficiency of services. The opposite party no. 1 to 6 have denied all allegation of the complainant.

On behalf of opposite party no. 7 to 10 a written statement ( version) has been filed denying the allegation of the complainant. It has been stated that in the total claim of the complainant in terms of value comes to Rs. 24,25,000/- which is beyond the pecuniary jurisdiction of this forum as per sec II of Consumer Protection Act and hence this complaint petition is not maintainable.

It has been further stated that as per agreement for sale of the flat the total cost of the flat agreed was Rs. 7,41,000/- which was to be paid in installments as mentioned in Para – II of schedule C of agreement the details of which has been mentioned in Para – 8 of this written statement.

It has been further stated that the complainant managed to obtained loan from opposite party no. 1 and for that purpose a triparty agreement was made in which opposite party no. 7 also become party. As per agreement opposite party no. 1 agreed to pay Rs. 6,25,000/- as housing loan to the complainant but opposite party no. 1 paid Rs. 4,50,000/- to opposite party no. 7 and thus Rs. 1,75,000/- was due to opposite party no. 1.

It has been further asserted by opposite party no. 7 to 10 that according to agreement entire amount of Rs. 7,41,000/- were required to be cleared by the complainant latest when plastering work started in the flat but the aforesaid amount were not cleared either by complainant nor opposite party no. 1. Opposite party no. 8 informed several time and also send letters to the complainant no. 1 to clear the dues but the complainant did not care.

It has been further stated that when despite request and letters to clear the dues by 10.05.2008 no action was taken either by the complainant or opposite party no. 1 then the agreement was cancelled and information was given to the complainant through letter dated 21.05.2008.

It has been further asserted that after knowledge of cancellation of the agreement the opposite party no. 1 asked opposite party no. 7 to refund the amount advanced as loan to the complainant and accordingly this opposite party no. 8 has liquidated entire outstanding loan to the opposite party no. 1.

It has been also stated that cancellation of agreement has been rightly made in accordance with clause 4 and 5 of the agreement dated 12.10.2007 as the complainant become defaulter.

On behalf of opposite party no. 11 whose name has been added during pendency of this complaint has been filed stating therein that this complaint is barred by law of limitation because this opposite party has purchased the flat in question on 16.12.2008 and hence cause of action arose on 16.12.2008 itself and this opposite party has been made party after laps of three and a half years.

On behalf of complainants the rejoinder has been filed to the aforementioned written statement of the opposite parties repeating the same fact again and again in order to justify the claim of the complainant.

We have carefully gone through the entire record of this case which is too voluminous due to several applications, petition etc. filed by the respective party.

The fact of which are not being mentioned in detail as the same will made this order too much lengthy.

However, the necessary fact asserted by respective parties have been narrated in the forgoing paragraphs.

From perusal of record as well as complaint petition, written statement, rejoinder etc. filed by the respective parties it is admitted that opposite party no. 7 to 10 have cancelled the agreement as the builder was not able to receive the entire amount as per terms of the agreement. Even the complainants have stated that despite the cheque was ready the opposite parties had not collected the same from the office of opposite party no. 1 to 6 nor opposite party no. 1 to 6 have provided the aforesaid cheque to opposite party no. 7 to 10 for the best reason known to them.

It is also stated by opposite party no. 7 to 10 that the entire loan advance on behalf of opposite party no. 1 to 6 for the flat of the complainant has been liquidated and paid to opposite party no. 1 to 6. This fact has also been admitted by opposite party no. 1 to 6 in their counter affidavit.

From bare perusal of written statement filed by opposite party no. 11 it is crystal clear that he has purchased the flat from the builder.

Hence in our opinion the opposite party no. 7 to 10 have acted as per terms and conditions of agreement for sale in cancelling the same as they have not received the entire amount as per terms of agreement for sale.

However, if complainants find any aliment of cheating etc. and illegality they are at liberty to approach any competent authority/ Tribunal/ Court etc.) for redressal of his grievance in accordance with law.

For the discussion made above this complaint petition stands dismissed.

                             Member                                                                              President