Date of filing : 17.01.2018
Judgment : Dt.05.12.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Faizan Jamil alleging deficiency in service on the part of the opposite parties namely (1) Mr. Imtiaz Rashid, (2) Sk Abdul Wahid and (3) Md. Abdul Rashid.
Case of the Complainant, in brief, is that the Complainant entered into an agreement for sale on 15.09.2015 with the OP No.1, Developer and Constituted Attorney of OP Nos.2 & 3 in respect of a piece of land lying and situated at Mouza – Sarsuna, Khatian No.978, Dag No.409, Dist.- South 24 Pgs under J.L.No.17, Pargana Magura, Touzi No.4 at Kasthodanga Main Road, P.S.-Behala, Ward No.127 owned by the OP Nos.2 & 3 at a consideration of Rs.15,00,000/-. The Complainant has submitted that out of entire consideration amount, he has paid Rs.3,00,000/- but owing to his serious illness he had to cancel the said agreement which had been immediately informed to the OP No.1 in September, 2017 and, thereafter, series of telephonic conversations took place between the Complainant and the OP No.1 regarding refund of the deposited amount of Rs.3,00,000/- and lastly on 17.11.2017 the Complainant sent a legal notice to the OP No.1 but said notice was returned to the Complainant with postal endorsement “Refused”.
It is further stated by the Complainant that as per Clause 24 of the Agreement for Sale the OP is liable to refund deposited amount after deducting Rs.10,000/- only but the OP No.1 has been remaining negligent to refund the said amount and being aggrieved by such negligent act on the part of the OP the Complainant by filing the instant Consumer Complaint has prayed for direction upon the OPs to refund Rs.3,00,000/- along with 10% simple interest, to pay Rs.50,000/- towards compensation, Rs.50,000/- for adopting unfair trade practice and Rs.25,000/- as cost of litigation.
The Complainant annexed copy of Agreement for Sale, statement of account, track report, legal notice dt.17.11.2017.
The OP No.1 contested the case by filing written version denying and disputing all allegations made out in the petition of complaint stating, inter alia, that the Complainant is the nephew of OP No.1 and being a relative of OP No.1 approached the OP No.1 for purchasing a flat and the OP No.1 was agreeable to sell a flat at a consideration of Rs.15,00,000/-. The OP No.1 has stated that he was requested by the Complainant to arrange for a Bank loan and thus lend him Rs.2,00,000/- as personal loan so that Complainant could purchase the said flat and on his instruction his son namely Abid Rashid paid him Rs.2,00,000/- by cheque bearing No.00000000000535006 dt.8.9.2015 which was credited to the account of the Complainant on 11.9.2015 and thereafter the Agreement for Sale dt.15.9.2015 was executed on payment of Rs.3,00,000/- by the Complainant and this event would suggest that the Complainant actually paid only Rs.1,00,000/- to the OPs. It is further stated by the OPs that owing to a family dispute the Complainant took the pretext of illness to avoid taking possession of the said flat by paying further amount even after knowing the fact that a Bank loan was sanctioned in favour of the Complainant and the flat was ready for handing over possession but the OPs were on intention to solve the said problem and accordingly made several telephonic conversation with the Complainant, though the Complainant neither availed the Bank loan nor did take possession of the flat and, moreover, cancelled the Agreement on his own which caused huge monetary loss to the OPs. Accordingly, the OPs prayed for dismissal of the case.
The OPs annexed photocopy of Bank Pass Book of Abid Rashid, Loan sanction letter.
The Complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate for the Complainant reiterated the facts mentioned in the petition of complaint.
The OPs did not take part in the argument.
Main points for determinations
- Whether there is any deficiency in service on the part of the OPs
- Whether the Complainant is entitled to the reliefs as prayed for
Decision with reasons
Point Nos.1 & 2
Both the points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainant entered into an Agreement for Sale with the OPs in respect of a flat at a consideration of Rs.15,00,000/- and paid Rs.1,00,000/- and Rs.2,00,000/- respectively by two separate cheques.
The OP No.1 claimed that on request of the Complainant he instructed his son to disburse Rs.2,00,000/- to the Complainant towards personal loan. It appears from the document filed by the OP No.1 annexed to the written version that an amount of Rs.2,00,000/- has been debited from the account of one Abid Rashid on 8.9.2015 in favour of Faizan Jamal (The Complainant herein). However, said Abid Rashid s/o the OP No.1 as claimed by the OP No.1 is not a party to the instant case and, therefore, the very purpose of said deduction is not possible to ascertain and the actual amount paid by the Complainant under these circumstances.
The Complainant has claimed that due to his illness he was in need of money and decided to cancel the booking of the flat and as per clause No.24 of the Agreement for Sale executed by and between the Complainant and the OP No.1 asked the OP to refund his deposited amount after deducting Rs.10,000/-. On perusal of Clause 24 of Agreement of Sale executed by and between the Complainant and the OPs on 15.9.2015 it appears that it was agreed between the parties that if the purchaser fails to purchase the said flat, in that event the purchaser must inform his inability to purchase the same to the vendor and in that situation the Vendor shall refund the advance amount paid by the purchaser after deducting Rs.10,000/-.
In the instant case the OP No.1 who as the developer as well as constituted attorney of vendor Abdul Rashid received the amount from the Complainant.
It appears from letter dt.17.11.2017 issued from the end of the complaint that he sent notice for cancellation on 17.11.2017 before handing over possession of the said flat which was to have been handed over within 30 months from the date of execution of agreement for sale dt.15.11.2015.
The OP No.1 has claimed that he made arrangement for sanctioning a Home Loan for the Complainant so that the Complainant could purchase the flat and a Home Loan was sanctioned in favour of the Complainant. A copy of loan sanction letter has been filed by OP No.1 which reveals that an amount of Rs.12,00,000/- has been sanctioned towards loan in favour of the Complainant. However, the Complainant has not availed the said loan and, therefore, there is no ground to take any cognizance against the Complainant regarding sanctioning said loan.
The OP No.1 has stated that the flat was ready to handover and non-acceptance of said flat caused monetary loss to him. On perusal of copy of agreement for sale we do not find any time frame in between which the cancellation would be accepted. It is well settled that terms of the contract are binding upon the parties and, deviation therefore amounts to deficiency.
In the instant case the Complainant has failed to produce any document wherefrom it would have been evident that the OP developer failed to perform his part in accordance with the terms of the contract. Fact remains that the Complainant voluntarily withdraws his claim for the flat and therefore unilaterally cancelled the agreement. Such unilateral cancellation of any bipartite agreement is not valid in the eyes of law. However, from the documents on record, it appears that the Complainant had paid Rs.3,00,000/- to the developer out of which Rs.1,00,000/- was paid towards advance. Subsequently, he changed his mind and expressed his unwillingness to avail the flat and thus demanded refund of deposited money. In our view this prayer may be allowed for the ends of justice. Therefore, as per provision of clause 24 of the agreement for sale after deduction of Rs.10,000/- the deposited amount shall be refunded.
The Complainant has prayed for refund of Rs.3,00,000/- along with 10% simple interest. In our views, as per provision of Clause 24 of the Agreement for Sale the Complainant is entitled to get Rs.2,90,000/- after deduction of Rs.10,000/- from the deposited amount.
Regarding compensation, we do not find any ground to allow such prayer since the Complainant has claimed to have cancelled the Agreement dt.15.11.2015 by sending letter on 17.11.2017 and thereafter has filed the case on 17.01.2018. So, question of harassment does not arise at all.
Points No.1 & 2 are decided accordingly.
In the result, the Consumer Complainant succeeds in part..
Hence
ordered
That CC/23/2018 is allowed on contest against OP No.1 and dismissed ex-parte against OP Nos.2 & 3. The OP No.1 is directed to refund Rs.2,90,000/- within three months from the date of this order in default the amount shall carry interest @ 7% p.a.
