Date of Filing : 15/07/2019
Date of Judgement: 20/11/2024
Sri Manish Deb, Hon’ble Member
Fact of the case is that OP No.1 is the proprietorship firm, OP No.2 is the sole proprietor of OP No.1 who is the developer ,The OP No.3 & OP No.4 are the land owners. The OP No.1 & OP No.2 were developing the land measuring more or less 1 cottah 10 chittaks lying and situated at Mouza- Rajapur, J. L No.23, E.P.No.364, S.P.No.664, R.S.Dag No.143, KMC Premises No.32/1 Chittaranjan Colony, Ward No.102, P. S -Jadavpur, Kolkata – 700 032, District 24 Pgs (South)
After getting information from reliable source that the opposite parties want to sell one flat measuring more or less 650 Sq.ft. super built up area situated on the southern side of the second floor (top floor) of the building constructed at Premises No.32/1 Chittaranjan Colony, Ward No.102, P. S -Jadavpur, Kolkata – 700 032, District 24 Pgs (South) , the complainant met with opposite parties and after proper negotiation, the complainant agreed to purchase the flat from the opposite parties at a consideration of Rs.11,50,000/- only and in this regard the complainant entered into an agreement for sale dated 20.10.2017 with ops.
As per agreement for sale dated 20.10.2017, the opposite parties are required to complete and handover the flat mentioned in the schedule to the complainant within three months from the date execution of the sale agreement. The Complainant paid part consideration money i.e. a sum of Rs.9,20,000/- only out of the total consideration money i.e. Rs.11,50,000/- only OP No.1 & OP No.2 started construction of the multi storied building on the landed property and had completed the same but possession was not yet handed over to the complainant.
The complainant thereafter on several occasions requested the OPs to execute the deed of sale by taking the balance amount of consideration money and hand over the possession of the flat but the opposite parties were reluctant to execute the same in favour of the complainant.
It is pertinent to mention here that the OP No.1 & OP No. 2 handed over the complainant two cheque vide cheque No.048073 and 048074 but both the cheque were dishonored which was informed to OP No.1 & OP No.2 but they were reluctant about the matter.
Not a single penny was returned back to complainant nor the possession was given to complainant. Complainant is a purchaser and entitled to get the flat or refund of money as per agreement dated 20.10.2017.
Complainant is a bonafide consumer within the managing of the C.P. Act, 2019 and hired the service of the opposite parties and this instant dispute is a consumer dispute within the scope and ambit of C.P. Act.
Whereas notices / summons were served upon all the opposite parties, all opposite parties are appeared in the case and contested the case, filed written versions.
The opposite parties have entered in the case opposite party No. No.1 & 2 have denied all allegations labeled against them , but hey admitted the Execution of the sale agreement and its terms and condition also acknowledged the receipts of the advance money from the complainant out of total consideration money of the flat, by filing the written version the contented that they have returned back the advance money to the complainant.
As per the OP No.3 & OP No.4 the case filed is not maintainable in the facts against all the OP No.3 & OP No.4 and they firmly denied each and every allegations that are made out in the complaint petition filed by complaint petition.
As per the OP No.3 & OP No.4 they neither get their allocation with possession letter till today nor received any compensation amount from the said developer the OP No.1 & OP No.2 of this case.
That as per the OP No.3 & OP No.4 they never received any amount from the complainant herein and also did not know anything about the matter thus they are not liable for any act of the opposite parties No. 1 & 2.
That as per the OP No.3 & OP No.4 that the documentary evidence lying in the records before this Ld Forum clearly establish the deficiencies in service on the part of the OP No.1 & 2 only. In fact, the OP No.3 & OP No.4 (Owners of land) have admitted the deficiencies which have led to the sufferings of the complainant, but as the OP No.3 & OP No.4 have no knowledge about the illegal activities of the developer, the OP No.1 & 2 of this case. The OP No.3 & OP No.4 being land owners can only execute the sale deed on their part.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties are deficient by not delivering the possession of the flat by Executing and registration of the flat also did not return back of the advance money.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
The complainant has submitted his evidence, brief note of argument in the case.
The opposite parties No.1 & 2 developer did not delivered the possession of the flat not execute and registered the flat after taking balance consideration money .even the opposite party/developer have sold out the flat in question to third party without knowledge and consent of the complainants , even the cheques which are issued by the opposite parties No. 1&2 in favour of the complainant were dishonored on presentation of the same before the Bank of the complainant.
The opposite parties No. 1 & 2 could not able produced any supportive documentary evidence to prove the return back of the advance money to the complainant, On the contrary the complainant has produced a return memo from the VIJAYA BANK , Jadavpur Branch where it shows that the cheque Being No. 048073 dated 15.04.2019 signed by one Bijoy Sikder for Rs. 2,35,000/ on presentation of the said cheque , the concern Bank has returned the cheque as dishonored because of Insufficient fund , which was gross negligence and fraudulent trade practice on the part of the opposite parties No. 1 & 2.
Whereas opposite parties No. 1 & 2 have never shown any interest in handing over the schedule property. The silence of OPs speaks their deficiency of service and activities towards deceitful exploitation of the consumer and unfair trade practice which is not at all warranted and sustainable in law.
The opposite parties No. 1 & 2 have willfully neglected to perform their duty by not handing over the possession to the complainant and also by not executing the deed of sale in favour of the complainant which is already deficiency of service and fraudulent trade practice on the part of the opposite parties No. 1 & 2.
We have applied our mind and meticulously gone through the materials on record. We find reasonable ground and proof there in support of complainant contention.
By all means we are of the opinion that OP No. 1 & 2 are liable in deficiency in service and unfair trade practice as alleged by the complainant even non compliance of duties and liabilities after taking advance money by the OP No. 1 & 2 is a clear cut proof of deficiency in service on the part of the OP No. 1 & 2 and there was an established fact of breach of contract as per the agreement so called, and the op No. 3 & 4 were ready to Execute deed of conveyance in favour of the complainant so they have no liability to return back of the Advance money, but as owners they have liability to take imitative to insist the Opposite Party No. 1 & 2 to return back of the Advance money of the complainant by Opposite Party No. 1 & 2.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief. Now the complainant wants to return back of the advance money and other reliefs as he prays for.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
That the CC No. 349/2019 is allowed on contest against OP No. 1 & 2 with cost.
- Opposite Party No. 1 & 2 are directed to refund the advance amount of total consideration of the flat i.e Rs.9,20,000/- with interest of Rs. @ 12% in from the date of sale agreement i.e from 20.10.2017 within 60 days from the date of this order.
- Opposite Party No. 1 & 2 are directed to pay compensation for harassment, mental agony and other damage of Rs.1, 50,000/- to the complainant within 60 days from the date of this order.
- Opposite Party No. 1 & 2 are also directed to pay Rs.10,000/- towards cost of litigation to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
