Ld. Advocate(s)
For Complainant: Mridula Roy
For OP/OPs : Suman Kumar Mukhopadhyay
Date of filing of the case :16.09.2022
Date of Disposal of the case :18.07.2023
Final Order / Judgment dtd.18.07.2023
Complainant above named filed this complaint u/s 35 of the Consumer Protection Act, 2019 against the aforesaid opposite parties praying for direction to hand over the flat more fully described under schedule B of the complaint after receiving the balance consideration amount. Complainant also made alternative prayer of refund of Rs.14,50,000/- along with interest @ 8% per annum, compensation amounting to Rs.20,00,000/-, cost of the case amounting to Rs.50,000/- and other reliefs.
He alleged that OP NO.1 offered him to transfer a self contained unit of flat more fully described under schedule B of the petition of complaint at a consideration of Rs.23,00,000/-. On 20.12.2019 an agreement for sale was executed by and between the complainant and OP No.1 under certain terms and conditions. At the time of execution of aforesaid agreement complainant paid Rs.1,00,000/- to the OP No.1. Complainant applied for financial assistance before the OP No.2 and OP NO.2 paid Rs.16,92,000/- by different phase in favour of OP NO.1. OP No.2 sanctioned the loan amounting to Rs.29,00,000/-, monthly instalment was fixed Rs.18,475/- for 240 instalment. Complainant has paid Rs.7,39,975/- in the loan account and amount of Rs.14,53,462/- is due as on 16.07.2022.
Subsequently, complainant’s father was fallen ill. Complainant requested the OP No.1 to give some money for the purpose of treatment of his father and he by 6 phases transferred Rs.5,50,000/- in favour of the complainant. He also paid Rs.1,48,775/- in favour of OP No.2/Bank as instalment of the loan account. As per agreement OP No.1 was agreed to hand over the flat by 31.01.2019 but he did not hand over the same. Complainant wrote letters to the OP No.1 on 08.03.2021 and 29.06.2021 requesting him to either hand over the flat or to refund the paid amount. On 26.07.2022 complainant sent a legal notice to the OP No.1 directing him to refund the paid amount but he did not get any fruitful result. Hence, he filed this case.
Case is running ex-parte against OP NO.1 vide order no.4 dated 07.11.2022.
(3)
OP NO.2 contests the case by filing a W/V. He denied the entire allegations and further contained that complainant approached before the OP NO.1 for getting house building loan so that complainant can purchase one ongoing construction flat under Kanchrapara Municipality measuring super built up area of 840 Sq.ft.. Bank after considering the prayer of the complainant had sanctioned the loan of Rs.21,05,693/- on 28.02.2019 which was to be repaid by the complainant by 240 equal monthly instalment at the rate of Rs.18,475/- per month to be started from 01.06.2019.OP No.2/ Bank paid Rs.16,92,000/- to the OP NO.1 for construction of the said building by loan. It was agreed in between the complainant and OP No.1 that OP NO.1 will hand over the said flat to the complainant by 31.12.2019. But most unfortunately OP NO.1 not yet handed over the flat in favour of the complainant. OP NO.2 Bank sent a notice to the OP NO.1 on 19.09.2022 directing him to complete the project and hand over the flat to the complainant so that execution to equitable mortgage in favour of the borrower can be made at the earliest. OP NO.1 after receipt of the said notice had not handed over the possession of the flat in favour of the complainant. OP No.1 deliberately and intentionally is not completing the said flat and the complainant and the OP No.2 are the worst sufferer.
Trial
During trial complainant filed affidavit in chief. OP NO.2 files questionnaire and complainant gave answer.
Documents
Complainant produced the following documents viz :
- Original agreement for sale dated 20.02.2019.........(One set)
- Sanction letter dated 27.02.2019............(One set)............(Original)
- Money Receipt amounting to Rs.1,00,000/-............(One sheet)..........(Original)
- Letter of complainant addressed to OP No.1 dated 08.03.2021 along with Postal Receipt..........(Two Pages)...........Original)
- Letter of complaint addressed to OP NO.1 dated 29.06.2021 along with Postal Receipt............(Two sheets)..........(Original)
- Letter of complaint dated 17.07.2022 addressed to OP NO.2 by the complainant dated 07.07.2022........(One sheet)..........(Original)
- Letter of OP No.2 dated 16.07.2022 addressed to complainant...........(One sheet).........(Original)
- Statement of loan account .............(Six sheets)...........(Original)
(4)
- Interest certificate dated 14.07.20222.........(Three sheets)..........(Original)
10)Copy of Advocate’s letter dated 26.07.2022 addressed to OP NO.1............(Xerox copy)...........(Three sheets)
11)Letter of OP No.2 dated 19.09.2022 addressed to OP NO.1..........(One sheet).........(Original)
Brief Notes of Argument
Complainant filed BNA . OP No.2 filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, affidavit in chief filed by the complainant, interrogatories of OP No.2, reply of complainant, documents filed by the complainant and BNA filed by the complainant and BNA filed by the OP NO.2.
On careful proposal of aforesaid documents it appears that complainant and OP No.1 entered into the agreement dated 20.02.2019.
We have carefully gone through the original copy of the said agreement. We find that as per the said agreement complainant was agreed to purchase one flat with the consideration amount of Rs.23,00,000/- and complainant paid Rs.2,00,000/-. Complainant was agreed to pay the rest amount of Rs.21,00,000/- by 5 phases. But complainant stated in the petition of complainant that at the time of agreement he paid Rs.1,00,000/-. He also produced one money receipt dated 08.02.2019 amounting to Rs.1,00,000/- in support his contention.
As per document issued by OP NO.2, we find that they paid Rs.16,92,000/- in favour of OP NO.1.
On perusal of sanctioned letter dated 27.02.2019, we find that loan of Rs.21,05,693/- was sanctioned and complainant was agreed to pay the loan amount by 240 instalment at the rate of Rs.18,475/- per month commencing from 28.03.2019.
On perusal of statement of loan account, we find that closing balance of the loan amount. We also find that closing balance of the loan amount as on 02.07.2022 is Rs.13,92,594/-.
On perusal of lawyer’s letter dated 26.07.2022, we find that Ld. Adv. for the complainant by the said notice directed the OP No.1 to refund to Rs.12,42,000/-.
(5)
From the affidavit in chief of the complainant it appears before us that OP NO.1 not yet handed over the aforesaid flat in favour of the complainant.
We also find that complainant paid Rs.1,00,000/- to the OP No.1. He also paid Rs.16,92,000/- to the OP NO.1 through the OP NO.2.
Accordingly, we find that complainant has paid Rs.17,92,000/- in favour of the OP No.1.
Complainant further stated in his affidavit in chief that OP NO.1 already gave him Rs.5,50,000/- for the treatment of his father. He also stated in the petition of complaint that OP No.1 also paid Rs.1,48,775/- to the loan account as EMI. So, it is clear before us that complainant actually paid Rs.10,93,225/- in favour of the OP No.1.
We also find that OP No.1 is entitled to Rs.12,06,775/- from the complainant has remaining amount of the said flat.
We find from the documents on record that OP NO.1 not yet provided the aforesaid flat in favour of the complainant in spite of repeated correspondence from the side of complainant. OP No.1 also did not hand over the aforesaid flat in favour of the complainant in spite of notice of the OP No.2.
In the present case complainant did not claim any relief against OP NO.2.
Having considered the facts and circumstances of this case and documents on record, we find that complainant is a consumer and OP No.1 is a service provider.
Having regarding to the aforesaid discussion, it is clear before us that aforesaid act of OP NO.1 is nothing but deficiency in service.
Considering the facts and circumstances of this case and documents on record, we are of the firmed view that complainant has able to established his case by sufficient evidence and he is entitled to relief as per his prayer.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed ex-parte against OP No.1 with cost of Rs.3,000/- (Rupees Three thousand) to be paid by OP No.1 in favour of the
(6)
complainant and present case be and the same is dismissed on contest against OP NO.2 but without any order as to costs.
OP No.1 is directed to complete the aforesaid flat and hand over the same in favour of the complainant within two months from this date after taking Rs.12,06,775/-(Rupees Twelve lakh six thousand seven hundred seventy five) from the complainant. Alternatively OP NO.1 is directed to refund Rs.10,93,225/-(Rupees Ten lakh ninety three thousand two hundred twenty five) to the complainant within one month from this day.
OP No.1 is directed to pay compensation amounting to Rs.2,00,000/- (Rupees Two lakh) in favour of the complainant within one month from this day.
OP NO.1 is directed to comply the aforesaid order within the specified date failing which complainant shall have liberty to put this order into the execution.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
