Date of Filing : 01 March, 2019.
Date of Judgment : 30 January, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
The instant case arises when Mr. Biswanath Sorkar, the Complainant, filed on 01st March, 2019 a complaint U/S 12 of the Consumer Protection Act, 1986, hereinafter called the said Act, against 1) Mr. Swapan Sardar and 2) Mr. Pradip Kumar Das (herein after called as Opposite Parties or O. Ps.) alleging deficiency in service on the part of the O. Ps.
The factual matrix of the case, in hand, is that the Complainant, on 19/12/2017, made an Agreement for Sale with the O. P. – 1 intending to purchase a flat at the second floor measuring about 700 sq. ft. super built up area in the proposed building to be constructed by the O. P. – 1 at the premises lying and situated at K M C Premises No. 136B, Gopal Mishra Road, Sen Pally (Green Park) Behala Kolkata – 700 034. The O. P. – 2 is the owner of the land on which the building was to be constructed. Total consideration for the subject flat was settled at Rs.13,50,000/- and complainant paid Rs.3,00,000/- during execution of this agreement on 19/12/2017. It was settled that the complainant would pay the balance amount during handing over the flat to the complainant. It was stated in this agreement that the O. P. – 1 would hand over the flat to the complainant within one year from the date of execution of this agreement. But when the complainant visited the site in October, 2018 for informing the O. P. – 1 that he was ready with the balance consideration, he found that no construction was started and when enquired about it he was informed that the construction would be started very soon. The complainant felt that the O. P. would never be able to complete the construction and hand over his flat within the stipulated time he sent a hand written letter to the O. P. – 1 on 29/10/2018 requesting him to refund his hard earned money paid for purchasing the flat. As he had not received any response from the O. P. he sent a legal notice on 15/01/2019 through his Ld. Advocate demanding refund of his paid money. Even after this notice the O. P. – 1 did not respond, instead on 02/02/2019 the O. P. – 1 sent a letter through his Ld. Advocate stating that as he was suffering from cerebral attack since December, 2018 the construction could not be completed in time and requested the complainant to allow him another year for completion and handing over the flat. As the complainant was not satisfied with the performance of the O. P. – 1, he filed this instant complaint praying for refund his paid up money of Rs.3,75,000/- , an amount of Rs.1,00,000/- for causing damages for harassment and mental agony, Rs.25,000/- as litigation cost and other orders as the Commission may think fit. Be it mentioned here that the complainant stated he had paid Rs.3,00,000/- during agreement, Rs.15,000/- for registration of the agreement and Rs.60,000/- for extra cost totalling Rs.3,75,000/-.
Complainant filed with the complaint the copies of 1) Agreement for Sale, 2) Development Agreemet between the O. P. – 1 & O. P. – 2, 3) Power of Attorney, 4) Deed of the land, 5) Leave & License agreement, 6) two letters sent by him, 7) letter sent by O. P. – 1 and 8) Aadhaar Card & PAN Card of the complainant.
After receiving the complaint this Commission considered it as admissible and sent notices to the O. Ps. Several opportunities were given but the O. P. – 1 never attended to contest the case while the O. P. – 2 appeared and filed his written version. Complainant then filed his Affidavit-In-Chief and O. P. – 2 expressed that he did not file any Questionnaire. Thereafter the O. P. – 2 requested to treat his written version as his Evidence. Complainant then filed his Questionnaire but the O. P. – 2 did not file any reply and ultimately argument was heard. Complainant filed Brief Notes of Argument through his Ld. Advocate and finally we are in the juncture of delivering Final Order.
Considering the complaint, annexure and the day-to-day proceedings of this case we now come to the point of taking decision on the following points:
1. Whether the complainant can be treated as Consumer under the Act?
2. Whether there is any deficiency in service from the part of the O. Ps.? and
3. Whether the complainant is entitled to get relief as prayed for?
Let us take these points one by one to come to a final decision.
Decision with reasons
The material fact of the complaint states that the Complainant, on 19/12/2017 entered into an Agreement for Sale intending to purchase a flat from Developer’s allocation at the second floor measuring 700 sq. ft. super built up area for a consideration of Rs.13,50,000/- and paid Rs.3,00,000/- on that date. Clause-2 of the Memo of Agreement states: “That, the purchaser shall pay the agreed purchase consideration amount of Rs.3,00,000/- (Rupees Three Lakhs) only and balance will be paid at the time of registration of Deed of Conveyance.” In Clause-6 in this agreement it is stated that: “That the developer herein shall be bound to handover the possession of the flat hereby agreed to transfer in good and habitable condition with sufficient water arrangements, sewerage connection, electric connection arrangement and said possession will be handed over to the purchaser or their nominated person or persons within 01 year from the date of this agreement subject to the payment made by the purchaser as per the payment SCHEDULE written in the Clause-2 hereinabove.” These two points clearly say that the purchaser/complainant has paid some consideration intending to hire ‘service’ of the O. P. – 1 of providing him a habitable flat thus confirms that the purchaser/complainant is a consumer of the O. P. – 1 as is defined in Sec 2 (1)(d)(ii) of the C. P. Act, 1986 [Sec. 2 (7) (ii) of the C. P. Act, 2019]. According to the statement of the complaint and annexure therein it is evident that the O. P. – 1 has failed to comply with his promise of handing over the subject flat to the purchaser/complainant within the stipulated time thereby confirms that there is a ‘deficiency’, as defined in Sec. 2(11), in providing the intended ‘service’, as defined in Sec. 2(42) of the Act, hired by the purchaser/complainant. Hence the complainant / purchaser is entitled to get relief.
Now we consider the written version of the O. P. – 2. In his version, he has denied all the allegations made by the complainant in his complaint stating that he had no role in purchasing of the flat as he was a mere Owner of the land where the Developer, the O. P. – 1, was empowered to construct a building. In Paragraph – 6, in page 3 of his written version, he states that: “It is further mentioned here that the opposite party no, 1 has obtained sanction of a building plan from the KMC for construction of a building on the land of the schedule premises on 21.02.2017 being B.P. No.2016140292 i.e. long before the date of execution of the said agreement for sale dated 19.12.2017 between the complainant and O. P. No. 1, how the complainant executed the said agreement for sale dated 19.12.2017 with the O. P. No. 1 in respect of the schedule flat without considering the said sanctioned building plan, where in the sanctioned building plan being B.P. No. 2016140292 dated 21.02.2017 no such floor (2nd floor) was sanctioned by the KMC but the complainant may out of his greed agreed to purchase the schedule flat in consideration of throw away price ….” This statement of the O. P. – 2 helps us to think that the complainant was negligent in properly verifying the building plan before executing the Agreement for Sale. In the same Para-6, in page-2, the O. P. – 2 states that: “It is specifically mentioned here that the market price per sq. ft. of the flat of the said locality is not less than Rs.3,000/- and thereby the total price of the flat measuring 700 sq. ft would be of Rs.21,00,000/-, and therefore, it can be safely said that the complainant without verification of paper, documents and the sanctioned plan of the building in respect of the said premises put his leg into the trap of the O. P. No. 1 ……”.
Now a question is arising in our mind whether this Commission will proceed to deal with the instant complaint arising out of purchasing a flat which would be constructed without necessary permission of the local authority? Then came in our view the landmark decision reported in (1994) 1 SC 243/AIR1994SC787, Lucknow Development Authority Vs. M. K. Gupta, where the Hon’ble Supreme Court Observed as under :
“To begin with the preamble of the Act, which can afford useful assistance to ascertain legislative intention, it was enacted, ‘to provide for the protection of the interests of consumers’. Use of the word ‘Protection’ furnishes key to the minds of the makers of the Act.”
These above discussions state that there is a deficiency occurred from the part of the O. P. – 1 and the O. P. – 2 has no role in such deficiency, Moreover, the complainant himself was negligent in proper verification of the documents before entering into Agreement for Sale with the O. P. – 1. As the complainant prayed for refund of his money paid to the O. P. – 1, this Commission thinks that he is entitled to get back his money paid to the O. P. – 1. In that case we find it justified to direct the O. P. – 1 to refund Rs.3,00,000/- as there is no receipt or proof provided by the complainant in respect of payment of other amounts. It is peculiar that the complainant stated in his complaint that he had paid Rs.60,000/- for extra work whereas in his letters dated 29/10/2018 & 15/01/2019 he stated that he had given this amount to the O. P. as a loan. As the O. P. – 1 is failed to hand over the subject flat to the complaint or failed to refund after receiving demand notice sent through the Ld. Advocate on 15/01/2019, giving a time of 15 days from receiving the letter, i.e. within 31/01/2019 as the date of receipt of the notice by the O. P. – 1 was 16/01/2019 the complainant is entitled to get interest on the paid up consideration @8% with effect from 01/02/2019.
Hence,
it is
ORDERED
That the complaint Case being No. CC/132/2019 is allowed ex-parte against O. P. No. 1 and partly on contest against O. P. No. 2.
The Opposite Party No. 1 is directed to pay Rs.3,00,000/- to the complainant along with interest on the said sum at the rate of 8% with effect from 01/02/2019 within 45 days from the date of receipt of this order.
The O. P. No. 1 is also directed to pay a sum of Rs. 8,000/- as litigation cost to the complainant within the aforesaid period.
