West Bengal

Bankura

CC/26/2022

Ashok Singha - Complainant(s)

Versus

Mr. Sujit Kumar Dutta, The Developer & Proprietor of DEEPSIKHA RESIDENCY - Opp.Party(s)

Self

05 Oct 2023

ORDER

   IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 26/2022

            Date of Filing: 05-09-2022

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.            

 

For the Complainant:  Ld. Advocate Avik Roychowdhury

For the O.P. : Ld. Advocate Tapas Chowdhury

Complainant  

Ashok Singha,  S/O Sukumar Singha, Vill. Panchbaga, Kenduadihi, P.O. Kenduadihi,  R.K. Sahana Road, Opp to Bharat Sevashram Sangha, District- Bankura, PIN-722 102

Opposite Party                                                                                                                                                                                                    Mr. Sujit Kumar Dutta, The Developer & Proprietor of DEEPSIKHA RESIDENCY, at Jahaj Bari, Kenduadihi, R.K. Sahana Road, Opp to Bharat Sevashram Sangha, District- Bankura, PIN-722102

 

FINAL ORDER / JUDGEMENT

Order No.12

Dated:05-10-2023

Both parties file hazira through advocate.

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder:-

The Complainant’s case is that he entered into an Agreement for sale on 22/07/2019 with the O.P. for purchase of a Residential flat described as Flat No.7E Block-1, 7^th Floor 2 BHK at a total consideration of Rs.23,75,000/- with car parking space and the possession of the flat was to be delivered within 3 years from the date of Agreement. The Complainant has already paid Rs.5,56,250/- and he is always ready and willing to pay the balance amount to get the ownership and possession of the said flat. But due to late payment of balance consideration money during COVID-19 period the O.P. by letter dated: 24/03/2022 cancelled the booking of the flat with the return of the offered Earnest money already paid by the Complainant. The Complainant has therefore approached this Commission to get the said flat transferred and registered in his favour on payment of the balance consideration money.

                                                                                                                                                                                          Contd……p/2

                                                                                                            Page: 2

O.P. contested the case by filing a written version contending inter alia that the Complainant has deliberately failed to pay the balance consideration money according to the payment schedule as contained in the Agreement for sale and in spite of getting enough scope and opportunity the Complainant did not avail of the same to get the flat transferred in his favour upon payment of the balance consideration money. The O.P. has therefore cancelled the booking of the flat according to the terms and condition of the Agreement for sale. No deficiency of service is attributable to the O.P. and the Complainant is not entitled to get any relief in this case for his own fault and violation of the terms and condition of the Agreement for sale.

-: Decision with reasons: -

Having regard to the facts of the case, submission, contention and documents on both sides the Commission finds that admittedly there was an Agreement for sale in respect of the aforesaid flat by and between the parties. The Complainant showed his readiness and willingness to fulfill his part of contract by payment of Earnest money of Rs.5,56,250/- but the intervening COVID-19 pandemic stood on the way to comply fully with the terms and condition of the Agreement. Though the O.P. showed his bona fide to complete  the sale of the flat in favour of the Complainant after receipt of the balance consideration money but unfortunately the Complainant could not, for obvious reasons, pay the balance consideration money according to the payment schedule in the Agreement.

At the time of hearing Ld. Advocate appearing for the Complainant has in his usual fairness submitted before the Commission that the Complainant has no mala fide intention to avoid payment of the balance consideration money and he is still ready and willing to purchase the flat upon payment of the balance consideration money.

On this issue Ld. Advocate appearing for the O.P. vehemently opposed the submission of the Complainant’s Advocate stating that the Agreement for sale was made in the Year 2019 and the construction of the flat is ready for delivery of possession within the stipulated period of the Agreement and the price of the flat has already escalated to Rs. 30/32 Lakh by this time.

Be it mentioned here that by an interim order dated: 15/09/2022 this Commission was pleased to pass a restraint order to part with the aforesaid flat to any  3^rd  party till the disposal of this case.

It is no doubt true that time is not the essence of the contract for such type of Agreement of Sale for flat and as such delayed enforcement of such Agreement for sale is permissible under law. By act and conduct of both parties time period for enforcement of the Agreememt has already got extended and the Agreement for sale has not yet been cancelled by the O.P. though the O.P. has conveyed  his intention for cancellation  of the booking of the flat.         

                                                                                                                                                                                               Contd….p/3

Page:   3

Be that as it may, considering the bona fide requirement of the complainant and the O.P.s reasonable attitude and flexibility on the terms and condition of the Agreement for sale the Commission is of the view that the flat as agreed upon by and between the parties should be disposed  of in favour of the Complainant on payment of total consideration of Rs.25 Lakh minus the Earnest money already paid by the Complainant. The case succeeds accordingly.

Hence it is ordered……..

That the case be and the same is disposed of on contest by directing the O.P. to transfer the aforesaid flat in favour of the Complainant with Car Parking Space at a total consideration of Rs.25 Lakh minus the Earnest Money of Rs.5,56,250/- already paid by executing a deed of Conveyance coupled with delivery of possession in accordance with law within six months at lease from this date in default the law will take its own course.

Both parties are given liberty to reschedule the time frame for enforcement of this order according to mutual consent and accommodation.

Both parties be supplied copy of this Judgement free of cost.

 

 ____________________                _________________           _________________

HON’BLE   PRESIDENT           HON’BLE MEMBER        HON’BLE MEMBER