Sri. Apurba Kr. Ghosh  ……….President

The Complainant has filed this case against the O.Ps under section 35 of Consumer Protection Act 2019 and praying for the following order / reliefs:-

1. Direction against the O.Ps to execute and register the Deed of Sale in favour of the Complainant on receiving payment of the balance amount or alternatively refund her advance consideration of Rs. 14,00,000/- along with interest @ 18% per annum calculated from the date of cancellation of her booking till realization.
2. Direction against the O.Ps to pay a sum of Rs. 20,00,000/- to the Complainant as compensation for unfair trade practice and deficiency in service and for illegal Cancellation of Booking  and for mental agony, trauma, harassment suffered by the Complainant.
3. Direction against the O.Ps to pay a sum of Rs. 50,000/- to the Complainant towards cost of legal proceedings.
4. Any other relief/ reliefs to which the Complainant is entitled.         

            BRIEF FACT OF THE COMPLAINT

1. That, the Complainant is a law abiding and peace loving citizen of India who is an employee of State Bank of India posted at Sikkim.
2. That, the OP No. 1 is a owner of piece of land measuring 8 katha recorded in RS Khatian No. 33/1 corresponding to LR Khatian No. 697 in RS Plot No. 69/227 corresponding to LR Plot No. 136 of Mouza Dabgram, JL No. 2 (Annexure A) and the OP No. 2 is a developer who entered into a agreement with the OP No. 1 in the year 2017 for development of the above stated land and deed of agreement was executed by and between the OP No. 1 and OP No. 2/ The deed was registered in the Office of the A.D.S.R., Bhaktinagar, Dist. Jalpaiguri being no. 6515 of 2017 (Annexure B).
3. That, as per agreement for development the OP No. 2 started construction of a three storied building on the said plot of land as per building plain no. 464/N dated 25.06.2018, Siliguri Municipal Corporation comprising of individual residential units and parking spaces for sale and the said building is nomenclature as “Green Tara Apartments”
4. That, the Complainant entered into a verbal agreement with the OP No. 3 for the purchase of a residential flat measuring 1434 sqft at First floor at Block Dolma of the residential complex for consideration of Rs. 3441600.
5. That, as per verbal agreement, the Complainant advanced a sum of Rs. 9,00,000 between 25.11.2018 to 06.04.2019 to the OP No. 2 which was duly received.
6. That, subsequently Agreement for Sale  was executed by & between the Complainant and the OPs on 01.05.2019 (Annexure C) .
7. That, as per terms of the agreement the Complainant has advanced at a different times a further sum of Rs. 5,00,000/- to the OPs  and last part payment was made on 27.09.2019 (Annexure D collectively).
8. That, in the month of December 2019, the Complainant received a letter dated 15.11.2019 from the OP No. 2 wherein OP No. 2 had sent a reminder to the Complainant for further payment, failing which it was stated therein, that the Complainant’s booking shall cancelled and the advance consideration shall be forfeited. As the Complainant was posted at that time at a remote location in North Sikkim with irregular network for which she was unaware of the said letter in the month of December 2019 as the said letter had been posted to her residential address in Gangtok, Sikkim and the Complainant was not able to respond to the letter dated 15.11.2019 in due time. (Copy of letter is Annexure E).
9. That, in the month of December 2019 the OP No. 2 sent an undated letter to the Complainant  of Cancellation of Booking , wherein it was stated that, the Complainant’s booking of the said flat stood cancelled and Agreement for Sale  stood null and void (Annexure F).
10. That,  in clause no. (ii) of the Agreement for Sale  stipulates the payment schedule.
11. That, in the light of the advance part payment of Rs. 14,00,000/- which already made by the Complainant till 27.09.2019 which was more than 40% of the sale consideration amount and it can be clearly disclosed that, the Complainant was not in default for any payment (Annexure G &H).
12. That, on 19.02.2020 the Complainant sent a letter to the OP No. 2 by raising protest against the said cancellation of her booking  and forfeiture of her advance consideration and subsequently the OP No. 2 invited the Complainant to come for a meeting at their site office at Salugara on 16.03.2020 and in the said meeting the OP No. 2 offered to refund the advance consideration of the Complainant in installment of Rs. 2,00,000/- without interest with no clear repayment schedule and also after deduction of GST and therefore the Complainant was not agreed and she sent a letter dated 18.08.2020 denying any consent for settlement of any manner (Copy of letters exchanged between the Complainant and the OP No. 2 are Annexure J collectively ).
13. That, the Complainant sent a legal notice to the OPs through her lawyer on 28.08.2020 and in reply to the legal notice the lawyer of the OP No. 2 sent an undated reply which was received on 18.09.2020 (Copy of the said legal notice along with AD cards and reply of the OPs are Annexure K collectively and Annexure L).
14. That, the OPs have illegally, arbitrarily and without due cause cancelled the booking of suit property in the name of the Complainant with ulterior motive to sale the same to another purchaser at a higher price and have thus indulged in unfair trade practices and thereby the Complainant suffer mental agony, anxiety and has led to unprecedented hardship.
15. That, the notice of cancellation is illegal and amounts to unfair trade practices as the OP No. 2 has no locus standi to issue such notice of cancellation as clause (e) of the agreement to sale dated 01.05.20019 states that, “The purchaser shall not be entitled to get the possession of the Schedule B mentioned flat from the vendors till the payment as specified in Clause b (ii) of the agreement are made” and therefore as per terms of agreement to sale default in payment by the Complainant, if any would only bar the Complainant for taking possession of the suit property and would not entitled the OPs to cancel the Complainant’s booking or forfeiture of the Complainant’s advance as the said agreement does not have any cancellation clause.
16. That, the OP No. 2 in collision with other OPs deprived the Complainant from her legal rights with an intention to sale the flat for a higher margin of profit to any third party.
17. That, the cause of action of this case arose in December 2019 when the OP No. 2 sent an undated letter of cancellation and on 20.08.2020 when the Complainant sent a legal notice to the OPs through her lawyer and the cause of action is still continuing.

Ld. Advocate of the Complainant files the following documents in support of his complaint:

1. Copy of Sale Deed No. 1942 & 1943 of 1984 and Khatian No. 697 (Annexure A)
2. Copy of Development Agreement. (Annexure B)
3. Copy of Agreement of Sale dated 01.05.2019 (Annexure C)
4. Copies of Money receipts. (Annexure D) (colly)
5. OPs letter dated 15.11.2019 (Annexure E)
6. OPs letter of Cancellation of Booking  (Annexure F).
7. Copy of Complainant’s bank statements (Annexure G).
8. Copy of OPs letter of Declaration to the WBHIRA (Annexure H).
9. SBI Memorandum of Return dated 30.09.2019. (Annexure I).
10. Copies of Letters exchanged between OP and Complainant (Annexure J).
11. Copies of Legal Notice along with A/D Cards. (Annexure K).
12. Copy of OPs reply to the Legal Notice. (Annexure L).

Notice was sent from this Commission to the OPs. On receipt of notice, both the O.Ps have appeared before this Commission through Ld. Advocate, filed written version, denied all the material allegations of the Complainant. In the written version both the OPs have stated that, the case is not maintainable either in law or in fact/ the Complainant has no cause of action for filing this case against them/ the Complainant has no locus standi to present this case / that the case is bad for admission, waiver and acquiescence / the case is barred by law of limitation / the case is bad under the Provision of Consumer Protection Act/ the Complainant has not come before this Commission with clear hands/ the Complainant has filed this case by suppressing the material facts. The OPs have also stated that, the contents of Para No. 2, 3,4,5, 6,7,8 are admitted by the OPs. They admits that, the OP No. 1 is owner of the land and one agreement was executed by and between OP No. 1 and 2 for development of land and OPO No. 2 started the construction of 3 storied building under the nomenclature “Green Tara Apartments”. The OPs have also admits that, the Complainant made a verbal agreement with the OPs for purchasing a residential flat measuring 1434 sqft for the consideration of Rs. 34,41,600/- . The OPs have also admits that, they have received a total part payment of Rs. 14,00,000/- from the Complainant and last payment was made on 27.09.2019. Both the OPs have further stated in its written version that, the contents of Para No. 9 of the complaint is partly admitted and partly denied and on 15.11.2019 the OP sent a reminder notice to the Complainant stating that there is a delay in payment which cause a serious delay in work progress but the Complainant became silent which become difficult for the OPs to carry out the further work to complete the building. Both the OPs have also admit the statement so made in Para No. 10 of the complaint who stated that, a letter of Cancellation of Booking  was sent in the month of December 2019 which was duly received by the Complainant but she made no reply and after lapse of reasonable time the OPs have sent a cancellation notice to the Complainant. The OPs have also denied the statements made in Para No. 11,12,13 of the complaint and they also stated that, the Complainant subsequently expressed her unwilling to buy the said booking flat and final amicable settlement was made between the Complainant and the OPs on 16.03.2020 and the Complainant asked to refund the said  paid amount and issued a account payee cheque of Rs. 2,00,000/- to the Complainant but the Complainant did not receive the same by visiting the office of the OPs. The OPs have also stated that they are very much ready and bound to refund the total amount of Rs. 14,00,000/- which they received from the Complainant. It is also alleged by the OPs that, the Complainant has filed arbitration and conciliation suit before the Ld. District Court Jalpaiguri being Civil Misc (Arbitration Case No. 11/2021 which is pending and also filed a Criminal Case vide GR Case No. 3857/2021 arising out of Bhaktinagar PS Case No. 949/2021 dated 26.07.2021 u/s 406/420/34 IPC. The OPs have also admits the statement made in Para No. 14 and denied the statements made in Para No. 15,16,17, 18 and 19. The OPs have also stated that, the Complainant has no cause of action for filing this case. By filing W/V the OPs have prayed for dismissal of this case.

Having heard the Ld. Advocates of both the parties and perusal of the written version of the OP and documents filed by the parties, the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION     

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

                   Decision with Reasons

   All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the Complainant has filed written deposition in the form of an affidavit. In the written deposition the Complainant has specifically corroborated the contents of the statements so made in his written complaint. The Complainant in his written deposition has specifically stated that, she entered into an agreement for purchasing a flat measuring 1434 sq ft from the OPs and an agreement was executed by and between the parties. The Complainant has further stated in her deposition that, she make part payment of Rs. 14,00,000/- to the OPs out of 34,41,600/-. The Complainant has further corroborates that, on receipt of the sum of Rs. 14,00,000/- they issued money receipts which the Complainant has annexed with the complaint. The Complainant has further stated in her evidence that, as per terms of payment schedule of the Agreement for Sale  she make payment more than 40% by 27.09.2019. In the written evidence the Complainant denied the allegation of delaying of payment so made by the Complainant and she raised protest against the letter which was issued on the side of the OPs. The Complainant has further stated in her evidence that without having no locus standi the OP No. 2 issued a letter for Cancellation of Booking  of a flat and cancellation of deed of Agreement for Sale  and forfeiture of the amount so made by the Complainant towards part payment. The Complainant also corroborate that, she sent legal notice to the OPs thorough Ld. Advocate by registered post with A/D which were duly received by them. The Complainant has also stated in her evidence that, she never agreed to settle the matter disclosing her inability to receive the flat from the OPs. The Complainant in her evidence has stated that, the act of the OPs who deliberately / illegally cancelled the booking of the flat and cancellation of agreement as well as forfeiture of the amount so paid by the Complainant are nothing but the deficiency in service on the part of the OPs as well as restrictive trade practice.

At the time of argument Ld. Advocate of the Complainant argued that, they have already filed written notes of argument and disclosed everything there. He further argued that, the Complainant has filed her written evidence in the form of an affidavit to prove her case. He also argued that, not only by filing written evidence the Complainant has also proved the case by producing several documents including the Agreement for Sale , money receipts regarding receipt of payment of Rs. 14,00,000/- and also by producing legal notice as well as other documents. Ld. Advocate of the Complainant has also argued that, within 27.09.2019 the Complainant make payment of Rs. 14,00,000/- to the OP towards part payment which is  more than 40% of the total sale consideration and he also argued that, as per schedule of payment mentioned in the agreement of the sale the Complainant has complied the stipulation by making payment within time. It is also argument of the Complainant that, the OP No. 1 is the owner of the land in question where the construction of 3 storied building was going on and the OP No. 2 is a mere developer who entered into an agreement with the OP No. 1 and though the OP No. 2 has/ had no right to issue any notice for cancellation for booking of flat of the Complainant he (OP No. 2) issued the notice illegally without having no right. It is further argument of the Complainant that, the OP No. 1 in collision with other OPs sent illegal notice of Cancellation of Booking  as well as cancellation of Agreement for Sale  and forfeiture of paid amount of the Complainant with an ulterior motive to sale the B schedule flat to the third parties with a higher price for unlawful gain. Ld. Advocate of the Complainant by referring the Agreement for Sale  (Annexure C) has stated that, there is no clause for Cancellation of Booking  as well as cancellation of agreement including forfeiture of paid amount in the Agreement for Sale  but the OPs have sent notice illegally to the Complainant as if they have right to cancel the booking of flat as well as cancellation of Agreement for Sale  including forfeiture of amount so paid by the Complainant.

To falsify the case of the Complainant the OPs have not adduce any evidence by filing written evidence in the form of an affidavit.

At the time of hearing of argument, Ld. Advocate of the OPs have argued that, the Complainant has failed to prove the case against them by producing evidence as well as by filing documents and she is not entitled to get the relief as prayed for. It is also argument of the OPs that, the Complainant was delaying in making payment of the balance consideration amount in terms of payment schedule of the Agreement for Sale  and due to deliberate non payment of the balance consideration amount the OPs were compelled to sent notice to the Complainant asking her to visit in the site office within 7 days from the receipt of notice and also directed to make payment but despite receiving notice the Complainant did not turned up in the site office of the OPs and that’s why they were compelled to sent notice to the Complainant for cancellation of the booking as well as for cancellation of Agreement for Sale  and forfeited the sum of Rs. 14,00,000/- which the Complainant had deposited as part payment. It is further argument of the OPs that, on receipt of notice of the Complainant they asked the Complainant to visit their site office for settlement where the Complainant disclosed its unwillingness to receive the flat in question and asked them to refund the entire payment of Rs. 14,00,000/-. It is further argument of the OPs that, as per terms of verbal settlement the OPs had issued one cheque for the sum of Rs. 2,00,000/- and asked the Complainant to receive the cheque from their office but the Complainant did not visit their office to receive their cheque. Ld. Advocate of the OPs during argument submits that, the Complainant has failed to prove the case against them and she is not entitled to get the relief as prayed for . It is further argument of the OPs that, the Complainant has suppressed the fact of filing one Arbitration and Reconciliation Case being no. Civil Misc (Arbitration) Case No. 11/2021 which is pending before the District Court , Jalpaiguri and also suppressed that the Complainant has lodged one criminal case being no. GR 3857/2021 arising out of Bhaktinagar PS Case No. 949/2021 dated 26.07.2021. Ld. Advocate of the OPs praying  for dismissal of this case.

Having heard the Ld. Advocate of both the sides and on perusal of the plaint, written version, documents filed by the parties including their evidence it is admitted fact that, an Agreement for sale of a flat mentioned in the Scheduled of property in the complaint was executed by and between the complainant and the OP’s on 01.05.2019.

It is also admitted fact that the OP’s have agreed to sale 1434 Square feet flat to the complainant for consideration of Rs. 34,41,600/-.

It is further admitted fact that, the complainant has already paid a sum of Rs. 14,00,000/- to the OP’s towards part payment in respect of the said flat which the complainant intends to purchase from the OP’s.

It is also admitted fact that, the OP’s have issued money receipts to the complainant on receipt of the said sum of Rs. 14,00,000/- from the complainant.

It is further admitted fact that the OP No. 1 is the owner of the land and OP No. 2 is Developer who entered into an agreement with the OP No. 1 and that agreement was registered. It is further admitted fact that, in the agreement for sale (Annexure-C) in clause(ii) there is mention of payment Schedule. In the said payment schedule it is specifically stated about the mode of payment and when it needs to pay by the complainant i.e. intending purchaser.

Only disputes in this case is that, the OP’s are claiming that the complainant was not paying the balance amount & there was delay  in making payment even after receiving notice from the OP’s. On the other hand the complainant is claiming that, she was never in default for any payment and she had paid more than 40% of the total sale consideration prior to the date mentioned in the mode of payment scheduled of the agreement.

Another dispute in this case is that, whether the OP’s had/have any right for cancellation of agreement for sale and whether the OP’s have/had any right to forfeit the entire amount of Rs. 14,00,000/- which the complainant paid to the OP’s for purchasing the flat.

Now let us see how far the complainant has been able to prove her case or not and how far the OP’s have been able to falsify the case of the complainant. From the Annexure A & B which are filed by the complainant it is admitted by the parties that, the OP No. 1 is the owner of the land and the OP No. 2 is developer. From perusal of Annexure- A & B every one can say that, OP No. 2 has/had no authority to cancel any agreement for sale i.e. booking of a flat. But in the case in hand it reveals from the Annexure-F that, the OP NO. 2 sent undated  letter of cancellation of Booking to the complainant  wherein he disclosed that, the complainant’s booking of the said flat stood cancelled and Agreement for sale stood null and void. The OP’s have failed to prove the authority of the OP No. 2 i.e. under what authority the OP No. 2 had sent the above letter of cancellation of booking flat as well as cancellation of Agreement to the complainant.

Now let us see whether the OP No. 2  had the right to cancel the booking of a flat of the complainant and whether the OP  No. 2 had any right to forfeit the sum of Rs. 14,00,000/- which was paid by the complainant towards advance consideration amount of that flat.

From careful perusal of the entire record it reveals that, the complainant has filed the Agreement for sale executed by and between the parties. From the four corner of the said Agreement for sale (Annexure-C) we don’t find any clause for  forfeiture of the advance payment made by the complainant. For want of forfeiture clause in the agreement for sale the intention of the OP’s to forfeit the sum of Rs. 14,00,000/- would safely be presumed as illegal and we are also of the view that, the OP’s have/had no such right to forfeit the advance payment of Rs. 14,00,000/- so made by the complainant. That intention of the OP’s for cancellation of booking of the flat & cancellation of agreement for sale & intention for forfeiture of the advance payment are nothing but the restrictive trade practice on the part of the OP’s.

It is needless to mentioned here that, in clause (e) of the agreement for sale dated 01.05.2019 it is clearly  states that, “the purchaser shall not be entitled to get possession of the scheduled ‘B’ mentioned flat from the vendors till payment as specified in clause b(ii) of the agreement………” Which clearly stipulates that unless and until the payment as specified in clause B(ii) are not made the purchaser shall not be entitled to get possession of the flat. From the said Agreement for sale it is proved that, there is no termination clause and therefore the OP’s have/had no right to cancel the booking of the complainant. In absence of any termination/cancellation clause in the agreement for sale the OP’s cannot be allowed to insert new terms & conditions for their own advantage/gain.

From the money receipts (Annexure-D collectively) it is proved on the side of the complainant that, within 27/09/2019 the complainant made payment of Rs. 14,00,000/- to the OP’s and that gesture of the complainant has also proved that, she was not delaying in making payment and she has also proved that, by 27.09.2019 she paid more than 40% of the total sale consideration. Moreover the evidence of the complainant has not been challenged on the side of the OP’s either through putting  of questionnaires or through filing evidence by the OP’s.

Considering the unchallenged evidence of the complainant we are of the view that the OP’s have tried to thwart the case of the complainant  but has failed to prove the same. On the other hand we are also of the view that, the complainant has been able to prove its case against all the OP’s who are jointly and severally liable to pay the awarded amount to the complainant as the complainant has been able to prove that, there was deficiency in service as well as restrictive trade practice on the part of the OP’s.

Hence, it is therefore,

O R D E R E D

That the instant Consumer Case being in No. 33/2020 is hereby allowed on contest but in part.

The OP’s are directed to execute and register  a Deed of Sale in favour of the complainant after receiving the balance consideration amount or in the alternative the OP’s are directed to refund the advance consideration of Rs. 14,00,000/- (Rupees Fourteen Lakh) only to the complainant with interest @ 7 % per annum with effect from 27.09.2019 till making payment of the entire amount. The OP’s are also directed to pay a sum of Rs. 200,000/- (Rupees Two Lakh) only to the complainant towards compensation for deficiency in service as well as restrictive trade practice and  mental agony, harassment of the complainant. The OP’s are also directed to pay a sum of Rs. 10,000/- Rupees Ten Thousand) only to the complainant towards cost of legal proceedings. The OP’s are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account of this Commission.

The OP’s are directed to pay the awarded amount/execute & register the sale Deed within  45 days from this day failing which they will have to pay interest @ 9% per annum with effect from this day till making payment of the entire amount.

Let a copy of this order be given to the parties free of cost.