Orissa

Cuttak

CC/111/2020

Smt Leena Mishra - Complainant(s)

Versus

Managing Director,M/s Acrux Realcon Private Limited - Opp.Party(s)

B Baug & associates

14 Sep 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.111/2020

Smt. Leena Mishra,

W/O:Sri Harihar Mishra,

Resident of Pareswar Sahi,Jobra,

Near Sikharpur Railway Crossing,

Cuttack,P.O:College Square,P.S:Malgodown,

Town/Dist:Cuttack.                                                              ... Complainant.

 

                                                Vrs.

1.       Managing Director & Promotor-Ramesh Chandra Swain,

M/s. Acrux Realcon Private Limited,

Res. of Plot No.F-33, & 34,Chandaka Industrial Estate,

Chandrasekharpur,P.O/P.S:Infocity,Bhubaneswar,

Dist:Khurda-751024.

 

2.       Ramesh Chandra Swain,

Director/Managing Director & Promotor

M/s. Acrux Realcon Private Limited.

 

3.      Rahul Swain,

S/O:Ramesh Chandra Swain,

Directorof M/s. Acrux Realcon Private Limited,

 

4.     Smt.  Lakhi Swain,

W/O: Ramesh Chandra Swain,

Sl. Nos.2 to 4 are resident of

Plot No.No.N-2/60,IRC Village,Nayapalli,

Bhubaneswar,P.S:Nayapalli,District:Khurda.                               ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    15.12.2020

Date of Order:   14.09.2022

 

For the complainant:          Mr. B.Baug,Adv. & Associates.

For the O.Ps               :          Mr. S.K.Ojh,Adv. & Associates.

 

Sri Debasish Nayak,President.                                                                 

Case of the complainant as made out from the complaint petition in short is that the complainant had agreed to purchase one residential flat from the O.Ps which they were constructing at Gothapatna Mouza near IIIT Engineering College with name and style as “Acropolis Gothapatna”.  The complainant had accordingly entered into an agreement to sale on 13.9.11 with O.P No.1 represented through O.P No.3 as the Director of O.P No.1.  The complainant was assigned flat no.E-306 with car parking space at the cost of Rs.23,00,000/- .  Likewise the husband of the complainant had also entered into another agreement to sale with O.P No.1 represented through O.P No.3 for purchasing two number of flats on the same date, i.e., on 13.9.11 and he was allotted flats bearing no.E-305 & E-307.  As per the agreement and undertaking thereto, the O.Ps had assured to deliver the flats after completing those within 36 months from the date of agreement i.e, from 13.9.11 after obtaining necessary permissions from the competent authorities.  The complainant had paid a sum of Rs.18,17,000/- and further an amount of Rs.4,83,000/-  and thus she had paid the value of the flat allotted to her by the O.Ps bearing No.E-306 to the tune of Rs.23,00,000/- besides paying a sum of Rs.36,340/- towards VAT and a sum of Rs.57,960/- towards GST and also a sum of Rs.49,969/- towards service tax as those were claimed by the O.Ps.  After payment of all these, the complainant had requested the O.Ps through her husband to hand over possession of her flat vide letter dt.20.11.17 and to execute the registered deed of conveyance in her favour.  She was thereafter requested by O.P No.3 through e.mail dt.29.1.18 to pay the registration charge of Rs.1,84,784/- in respect of her flat bearing No. E-306.  The complainant and her husband came to know that the land whereupon the said apartment is constructed belongs to the Govt. for which they had demanded the sale deed of the land in question alongwith the approved plan thereof from O.P No.3.  The O.Ps had received the said request as made by the complainant on 29.9.19 and had asked them to come with the original agreement to sale.  Accordingly, the complainant had been to the office of O.Ps on 6.2.20 with her husband where on demand they had handed over the original deed of agreement but the O.Ps had not shown them any single scrap of paper reflecting the title over the land in question and occupancy, possession certificate, completion certificate and also the approved plan thereof.  The complainant had paid a total sum of Rs.24,44,269/- to the O.Ps but without registering the flat the O.Ps are harassing the complainant for which the complainant has filed this case claiming to take back her money alongwith interest @ 18%  together with a compensation of Rs.20,00,000/- and a further sum of Rs.1,00,000/- towards her litigation expenses from the O.Ps.

            The complainant has filed several copies of documents in order to prove her case.

2.         The O.Ps have contested this case and have filed their written version jointly.  According to the written version of O.Ps, the case of the complainant is not maintainable.  The O.Ps are admitting to be leading Builders and Developers.  According to them, prior to submissions to the O.Ps for allotment of flats, the husband of the complainant had entered with the O.Ps for sale of some land for a consideration of Rs.1,74,24,000/-  and had received a sum of Rs.1,00,00,000/- on 3.8.16 from them.   The O.Ps subsequently could know that the land intended to be sold to them by the husband of the complainant was vested in the Govt. khata before execution of such fraudulent agreement.  Thus,they had approached the husband of the complainant in order to get return of the amount for which the husband of the complainant had issued four number of cheques in favour of the O.Ps amounting to Rs. 1,00,00,000/- but none of the cheques could be encased for which complaint case is filed against the husband of the complainant bearing 1 C.C Case no.1560 of 2019 pending before the learned SDJM,Bhubaneswar.  The O.Ps admit in their written version that husband of the complainant had initially deposited a sum of Rs.15,00,005/- on 31.3.11 towards  token money for booking of five number of flats but subsequently the complainant and her husband had submitted applications on 4.4.11 for booking of three number of flats but they had not entered into any agreement with the O.Ps to that effect inspite of repeated requests as made by them.  The completion certificate has been received by the O.P Company on 21.3.18 and all the constructed flats were handed over to the respected purchasers excepting these three flats as booked by the complainant and her husband.  Thus in toto it is the contention of the O.Ps through their written version that due to non-cooperation of the complainant and her husband and due to non-execution of the agreement to sale by the complainant as well as her husband, the flats could not be registered and handed over to them.   It is for this they claimed that they were not deficient in their service and the complaint case is liable to be dismissed.

            The O.Ps have also filed copies of series of documents in order to prove their case.

3.         Keeping in mind the averments as made in the complaint petition and the contents of the written version, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

            ii.         Whether there was deficiency in service on the part of the O.Ps?

            iii.        Whether the complainant is entitled to the reliefs as claimed?

            The complainant has filed her evidence on affidavit wherein she has corroborated the averments as made by her in her complaint petition.

Issue no.ii.

            Issue no.ii being the pertinent issue is taken up first for consideration here in this case.

            Admittedly, the O.Ps are builders and developers and the complainant had opted for purchasing a flat from them by paying the consideration amount.  As per the documents available, it is noticed that she was allotted a flat bearing no.E-306 at Gothapatna Mouza by the O.Ps where the O.Ps were constructing multi storied buildings under the name and style as “Acropolis Gothapatna”.  As per the documents available in the case record, it is noticed that the complainant had paid a sum of Rs.18,17,000/- towards the cost of the flat and a sum of Rs.49,969/- towards the service tax.  The O.Ps then had demanded from the complainant vide their letter dt.18.8.17, a sum of Rs.4,83,000/- alongwith GST amount of Rs.57,960/-.  Thus, the claim amount by the O.Ps from the complainant was of Rs.5,77,300/-.  The letter of the complainant alongwith her husband dt.20.11.17 goes to show that they had deposited a further sum of 12,93,992/- out of which Rs.5,77,300/- is towards the residual amount for flat no.E-306 allotted in favour of Mrs. Leena Mishra/ the complainant of this case.  The copy of the cheque to the tune of Rs.12,93,992/- at Bank of India bearing cheque no.838211 dt.14.11.17 has not been disputed by the O.Ps to this case.  Thus, this Commission is of the opinion that infact the O.Ps had received the total consideration amount alognwith other ancilliary costs for the flat bearing no. E-306 as allotted by them in favour of the complainant.  The complainant has filed this case since when the O.Ps had not handed over possession to her in due time.  The contention of the O.Ps  in this regard is that though they had requested the complainant and her husband to enter into agreement with them in respect of the flats intended to be purchased by them vide their letter dt.26.3.18 as per Annexure-R/1, the same was not acted upon either by the complainant or by her husband.  The complainant per contra, has stated that she alongwith her husband were asked by the O.Ps to visit their office with the original agreement for sale in order to proceed with the formalities in delivering possession and accordingly she had visited the office of the O.Ps on 6.2.20 with her husband where the O.Ps had taken away the original agreements from them.  Be that as it may, it is quite ridiculous to believe that in absence of any agreement for sale there was such a huge transaction in between the complainant and the O.Ps and that the O.P had accepted the total cost of the flat intended to be sold by them.  Admittedly, the total consideration amount has already been paid by the complainant to the O.Ps Thus, while weighing the evidence as available, it is noticed that the balance of convenience leans in favour of the complainant and her statements seem to be acceptable.  The O.Ps by bringing into notice the pending complaint case before the learned SDJM,Bhuaneswar against the husband of the complainant for evidence U/S-138 of the Negotiable Instrument Act is considered by this Commission that it is the sheer attempt by the O.Ps to camouflage the truth but the quinthessence of it is well noticed.  In this regard they have relied upon different decisions i.e. in the case of Bimalendu Pradhan Vrs. State of Odisha & Others passed by the Hon’ble High Court in W.P(C) No.18799 of 2021,  judgment dt.11.1.2022 of the Hon’ble  Supreme Court in the case of Samrudhi Cooperative Housing Society Ltd. Vrs. Mumbai Mahalaxmi Construction Pvt. Ltd. in Civil Appeal No.4000 of 2019 reported in (2018) 5 SCC 442 High Court of Orissa in W.P(C) no.20269 of 2017   and in the case of Tareaty Construction and Another Vrs. Ruby Tower Coopereative Housing Society Ltd.  reported in Civil Appeal No.5699 of 2019 decided on 19.7.2019  and in the case of Fortune Infrastructure (Now known as M/s. Hicon Infrastructure) and Another Vrs. Trevor D’Lima and Others reported in Civil Appeal Nos.3533-34 of 2017 decided on 12.3.2018  by Hon’ble Supreme Court in( 2018) 5 Supreme Court Cases 442 .

Thus, by accepting the consideration amount in full and by not handing over possession of the flat bearing no.E-306 to the complainant at Gothapatna, the O.Ps are undoubtedly deficient in their service towards the customer/complainant.  This issue is accordingly answered in favour of the complainant.

Issues no.i & iii.

            When the complainant had paid the total amount of consideration together with the other ancillaries charges to the O.Ps in order to get possession of the flat bearing No.E-306 constructed by the O.Ps at Gothapatna Mouza and by not getting the same she had filed this case which ofcourse is maintainable and thus she is entitled to the reliefs as claimed by her but ofcourse to a reasonable extent.  These two issues are accordingly answered.  Hence it is so ordered;

                                                                ORDER

            The case is decreed on contest against the O.Ps who are found to be jointly liable here in this case.  The O.Ps are thus directed to return the total consideration amount alongwith ancillary charges as received by them from the complainant to the tune of Rs.24,44,269/- alongwith interest thereon @ 12% per annum with effect from 14.11.17 till the total amount is quantified.  The O.Ps are further directed to pay a sum of Rs.5,00,000/- to the complainant towards compensation for the mental agony and harassment as caused to her and to bear the litigation expenses as incurred by the complainant to the tune of Rs.50,000/-.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 14^th   day of   Septemer,2022 under the seal and signature of this Commission.              

                                                                                                                                Sri Debasish Nayak

                                                                                                                                            President

                       

                                                                                                                                                             Sri Sibananda Mohanty

                                                                                                                                               Member