Date of filing : 25.01.2018
Judgment : Dt.29.3.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Rajib Dey and (2) Smt. Suvra Dey alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Mr. Soumen Chakraborty, (2) Mantulal Chakraborty and (3) The Branch Manager.
Case of the Complainant, in short, is that a development agreement was entered into between OP No.1 and OP No.2, the owner and consequent to the same, OP No.1 the developer agreed to sale one self-contained flat to the Complainant. So by an agreement dt.15.9.2016, Complainants agreed to purchase one self-contained flat being No.B5 on the 2nd floor, measuring an area of 500 sq.ft. super built up area and a 120 sq.ft car parking space at the ground floor at Premises No12/12, Ishan Ghosh Rd, under Haridevpur P.S., Kolkata-700 008, at a total consideration amount of Rs.13,00,000/-. Out of the said total consideration, Complainant paid a sum of Rs.1,00,000/- by cheque and thereafter he further paid a sum of Rs.3,00,000/- through United Bank of India, by way of taking loan. In spite of the payment, OP No.1 failed to register the flat on taking rest of the consideration money within the stipulated period of 15 months. The Bank has been deducting EMIs month by month from the Complainant’s account. In spite of several requests, OP No.1 failed to execute and register the sale deed. Complainants by a letter dt.28.1.2017 asked for refund of the money from the OP paid by him. The same was replied by the OP. But the said amount has not been refunded. Thereafter, Complainants sent a notice through their Ld. Advocate, but of no effect. So, the present complaint has been filed by the Complainants for directing the OP No.1 to either execute and register the deed of conveyance in respect of the flat on accepting the balance consideration money of Rs.9,00,000/- and to hand over the possession thereof, in alternatively to return the amount of Rs.4,00,000/- along with interest @ 18% p.a. till its recovery, to pay Rs.2,00,000/- as compensation and Rs.15,000/- as litigation cost.
Complainants have annexed with the complaint petition, agreement for sale dt.15.9.2016, money receipts, copy of the letter dt.04.10.2016 sent by the Bank to the Complainants along with statement of account therein, copy of letter dt.28.1.2017 sent to the OP No.1 by the Complainants, the reply by the OP dt.20.1.2017 and one another letter sent by Complainant Rajib Dey to the Bank (OP No.3) and the copy of the legal notice by the Complainant to the OP No.1.
The complaint has been contested by the OP No.3 by filing written version stating inter alia that on submission of all necessary documents by the complainants before the OP No.3 for sanctioning of the loan, the loan was sanctioned of Rs.8,22,058/-. A total amount of Rs.3,00,000/- was disbursed in favour of the developer OP No.1. Complainants have paid the regular EMI. So, OP No.3 has prayed for passing necessary order accordingly.
OP No.1 has also contested the case by filing written version denying the allegations made against him in the petition of complaint contending inter alia that the Complainants visited the office of the OP in the month of December, 2016 and expressed inability to make any further payment due to some financial crisis and subsequently by a letter dt.28.1.2017 asked for cancellation of booking and to refund the money paid by them of Rs.4,00,000/-. The payment was not made in time by the Complainants as per the agreement and further as per their own letter the booking of the flat has been cancelled and as such question of delivery of flat and registration thereof as prayed by the Complainant does not arise. The Complainants themselves being the defaulter is not entitled to the relief as prayed. It is also contended that the Complainants are not consumer under the provision of Consumer Protection Act as on and after 28.01.2017 there is no agreement between the parties and thus there is no privity of contract between them. OP No.1 has thus prayed for dismissal of the complaint petition.
During the course of evidence, both parties have adduced their respective evidence followed by filing of questionnaire and reply thereto. Ultimately, the argument has been advanced by both the parties. They have also filed brief notes of argument.
So, the following points require determination.
1) Whether there has been any deficiency in rendering of service on the part of the OP No.1?
2) Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
In this case apparently there is no dispute that an agreement for sale dt.15.9.2016 was executed between Complainants and the OP No.1 agreeing to sell the subject flat at a total consideration price of Rs.13,00,000/-. It is also an admitted fact that out of the said amount, Rs.4,00,000/- has already been paid by the Complainants. The only contention which has been raised by the OP No.1 is that the balance consideration amount was not paid by the Complainants and they themselves by a letter dt.28.1.2017 asked for cancellation of booking and refund of the money. So, for the said reason, they are not entitled to the relief under C. P. Act as there has not been any privity of contract between the parties since 28.1.2017.
On perusal of the agreement dt.15.9.2016, it appears that there is a schedule of making periodical payment at the appropriate stage. It is also categorical terms in the agreement that the transaction of sale and purchase in between the parties relating to the said property will be completed within 15 months from the date of the agreement. So, as per the agreement the construction was to be completed and the flat to be handed over by December, 2017. But, it is the specific claim of the Complainants that in the month of January, 2017 when they visited the site they found that construction was very slow and so on the very date they sent a letter to the OP asking to refund the money and to cancel booking.
On perusal of the letter dt.28.1.2017, it is categorically stated that as the progress of the construction is very slow from the date of booking, the Complainants have decided to cancel the booking. So, the said letter is very categorical that the construction was very slow.
In his reply, the OP No.1 has stated that he would return the money as per the wish of the Complainants, within three months to the Complainants or to their banker. But, admittedly OP No.1 has not paid the said amount to the Complainants. It is strange that the OP never disputed and challenged the claim of the Complainants in their letter dt.28.1.2017 that progress of the construction work was slow which strengthens the claim that the construction work was very slow. So, when it could be realized that the construction would not be completed than the step taken by the Complainants to ask for the refund of the money by cancelling the booking cannot be termed that they are defaulter especially when out of Rs.13,00,000/-, Rs.4,00,000/- was already paid by the Complainants. It cannot be expected that they would lose the money and also would not get the flats in time. Reply by the OP No.1 itself leads to an inference that the construction would not have been completed within the stipulated time. Had that been not the position, OP No.1 would have written to the Complainants that he would be completing the construction work in time. But he did not do so and readily agreed to return the money. So, as he has neither returned the money nor the Complainants have been handed over the flat, there has been deficiency in service and thus Complainants are entitled to return of the money paid by them along with interest because Complainants had to pay the interest by way of EMI towards loan taken and major part of the loan amount has been disbursed to OP No.1 by the Bank/OP No.3.
In case law cited by the Complainant reported in 2013(1) CPR 294(NC) (Poonam Chamber “B” Commercial VS M/S Amplex India Pvt. Ltd.) it has been held by the Hon’ble National Commission that “once parties entered into work contract, Complainant is entitled to claim an amount of deficiency of service even after termination of contract. So, in view of the legal propositions in the said case law, argument that there is no privity of contract between the parties since 28.1.2017, cannot be accepted.
The case law of Ravneet Singh Bagga VS K.L. M. of Royal Dutch Airlines & Others cited by OP, is not applicable in the given facts and situation of this case. In the said case, it has been found by the Hon’ble Apex Court that all the necessary precautions were taken by the Airlines and they had acted fairly and was in bona fide manner keeping in mind the security and safety of the passengers and thus it could not be said that there was any deficiency in service.
In this case admittedly in spite of assuring that he would refund the money, OP has not refunded the same and as such he is liable to pay the same.
The points are thus answered accordingly.
Hence
ordered
CC 35 of 2018 is allowed on contest against OP No.1 and dismissed on contest against OP No.3. It is dismissed ex-parte against OP No.2. OP No.1 is directed to refund Rs.4,00,000/- to the Complainants along with interest @10% p.a. (In the form of compensation) from the date of last payment i.e. 05.10.2016 to till this date within two months from the date of this order. OP No.1 is further directed to pay Rs.12,000/- towards litigation cost within the above said period of two months in default the entire sum shall carry interest @ 10% till realization.
