Sri Ashoke Kumar Pal, President
The matrix of the instant complaint case in short is that the complainants booked a flat measuring about 1340 sq.ft. Super Built-up Area along with a car parking space being Flat No.-N, Block-B at “Sheraton Tower” in the 3rd floor more fully described in the schedule of the agreement for sale dated 16.10.2013 (Annexure-A) at a valuable consideration of Rs.43,20,000/- (Rupees forty three lakhs and twenty thousands) only. The complainant paid Rs.15,30,000/- (Rupees fifteen lakhs and thirty thousands) only out of the total consideration amount of Rs.43,20,000/- only on different dates and the OP acknowledged the receipt of the same by issuing money receipts (Annexure-B). It was agreed by and between the parties that the scheduled flat will be constructed within 60 months from the date of agreement for sale and the OPs shall hand over the possession and execute and register the Deed of Conveyance after full and final payment of the consideration amount. But the OPs have not started the project of Block-B and miserably failed to construct the scheduled flat. That apart the petitioners / complainants on 02.12.2016 received a notice u/s 133 (6) of the Income Tax Act issued from the Income Tax Office stating that the petitioner has given the OPs a loan as an advance during the financial year 2013-14. The petitioners never gave any loan to the OPs and only paid the money towards advance for purchasing the flat as per terms and conditions of agreement dated 16.10.2013. The OPs violated the terms and conditions of the agreement and failed to deliver the possession of the schedule flat with garage to the complainants despite payment of considerable amount. The OPs also failed to execute and register a proper deed of conveyance in respect of the scheduled flat with garage in favour of the complainant receiving the balance consideration amount despite repeated requests by the complainant. The complainant approached the OPs several times to refund the earnest money with interest which has been paid by the complainants to the OPs. But the OPs on all occasions gave assurances to the complainants but ultimately failed to deliver peaceful possession of the scheduled flat along with garage in favour of the complainants and failed to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainant which prompted the complainants to file the instant complaint case on the reliefs sought for in the petition of complaint.
The OPs contested the case by filing W/V contending inter allia that the claims of the complainants are all false. The specific case of the OPs is that the complainants suppressed the fact of the letter dated 06.03.2021 to the OPs for cancellation of the agreement dated 16.10.2013 pertaining to the booking of flat and also refund of the advance amount. It is the specific case of the OPs that in terms of the letter dated 06.03.2021 of the complainants they have already refunded the amount of Rs.10,000/- to the complainants which they did not disclose in their petition of complaint. The OPs also denied the other material averments of the petition of complaint parawise and prayed for dismissal of the complaint case as filed by the complainant with cost.
Points for Decision :-
- Are the complainants consumers?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Are the complainants entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of the case records along with copies of documents, it appears that the complainants were willing to purchase the scheduled flat along with garage more fully described in the agreement for sale dated 16.10.2013 and the OPs agreed to sell the same to the complainants for which agreement for sale dated 16.10.2013 has been made by and between the parties. The complainants paid Rs.15,30,900/- only out of the total consideration amount of Rs.43,20,000/- only on different dates and the OPs acknowledged the receipt of the same by issuing money receipt. Therefore, the complainants are consumers as defined u/s 2 (7) of the Consumer Protection Act, 2019.
As such, Point No.1 is decided in favour of the complainants and against the OPs.
Point No:2 :
The complainant booked the scheduled flat and entered into an agreement on 16.10.2013 with the OPs to that effect. The complainants also made part payment of Rs.15,30,900/- only out of the total consideration amount of Rs.43,20,000/- only and the OPs acknowledged the receipt of the same by issuing money receipts from which it appears that all the payments were made properly. On the other hand, despite payment of the considerable amount by the complainants as per perms of agreement for sale dated 16.10.2013 the OPs failed and neglected to hand over the possession of the scheduled flat with garage to the complainant receiving the balance consideration amount. The complainants finding no other alternative requested the OPS to deliver possession of the scheduled flat along with garage as promised by them. But the OPs were very much reluctant and paid no heed thereof. Therefore, it is clear from the averments of the complainants that the OPs are guilty of deficiency in service and unfair trade practice.
As such, Point No.2 is also decided in favour of the complainants and against the OPs.
Point No.03 :-
The complainants booked the scheduled flat along with garage more fully described in the agreement for sale dated 16.10.2013 from the OPs and made payment of considerable amount of Rs.15,30,000/- only. But the OPs violated the terms and conditions of agreement for sale dated 16.10.2013. Neither the OPs handed over the scheduled flat as per agreement for sale dated 16.10.2013 nor they returned back the amount of Rs.15,30,900/- only with interest which they received from the complainants as per terms of agreement dated 16.10.2013. Therefore as the complainants did not get any positive response from the OPs they have been compelled to file the instant complaint case on the reliefs as sought for in the petition of complaint. As such there is no hesitation to hold that the complainants are entitled to get the reliefs as prayed for as the OPs did not hand over the scheduled flat with garage to the complainants. The complainants failed to get service from the OPs. On the other hand, the complainants were harassed by the OPs by various ways. Therefore, the complainants are entitled to get reliefs as prayed for.
Thus the Point No.3 is also decided in favour of the complainants and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the instant complaint case be and the same is hereby allowed on contest against the OPs with cost of Rs.25,000/- (Rupees twenty five thousand) only.
The OPs are jointly and / or severally liable and are directed to deliver vacant peaceful possession of the scheduled flat with garage to the complainants and to execute and register a proper deed of conveyance in respect of the scheduled flat in favour of the complainants within 45 days from the date of passing this order.
Alternatively, the OPs are jointly and / or severally liable and are directed to refund the entire earnest money of Rs.15,30,900/- along with simple interest @12% p.a. w.e.f. 29.03.2013 (Date of payment of 1st instalment) to the complainants till the date of final realization thereof deducting the amount already refunded by the OPs to the complainants during the pendency of this case within 45 days from the date of passing this order.
That the OPs are jointly and / or severally liable and are also directed to pay compensation to the tune of Rs.2,00,000/- (Rupees two lakhs) only for mental pain and agony, deficiency in service, unfair trade practice, harassment and inconvenience suffered by the complainants, within 45 days from the date of passing this order.
That the OPs are jointly and/or severally liable and are also directed to pay litigation cost of Rs.25,000/- (Rupees twenty five thousand) only within 45 days from the date of passing this order.
That the complainants are at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the OPs within 45 days from the date of passing this order.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
Ashoke Kumar Pal
President
