Samaresh Kumar Mitra,  Presiding Member.

This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that the complainants have entered into an agreement for sale   with opposite parties on 18/08/2020 for purchasing a flat for a consideration of Rs.19,00,000/- (Rupees nineteen lakhs) out of which opposite party no. 2 and 3 on behalf of opposite party no.1 firm have received a sum of Rs. 1,90,000/- (One lakh ninety thousand)only as the earnest money from the complainants vide cheque no.292589 dated 17/08/2020 on State Bank of India Garbeta Bazar Branch and opposite party have also issued the money receipt against the same and it was credited in the account of opposite parties on 19/08/2020.

The complainant stated that he asked the opposite parties to supply the documents in support of project of the opposite parties and the flat described in schedule A and B but the opposite parties stated that the said documents relating to the land and the flat will be supplied to the complainants only after execution of the agreement for sale and received of the earnest money and the opposite parties have supplied the photocopies of registered development agreement with power of attorney (being no.062100019/2018 dated 27/12/2017, ADSR-Uttarpara). Two L.R. Records of rights, rent receipts being nos. 8899119 and 8899120, three notarized partnership deeds, trade licence being no. 200242020037590, chain deed in the name of Nipendra Kishore Das, Municipal Tax receipts, sanction plan for G + IV (ground plus four) building on 18/08/2020 after execution of the agreement for sale.

The complainant also states that the Power of Attorney supplied by the opposite parties goes to show that the owners of the land have given the power to M/S. Adija Construction having four partners and the trade license has been issued by the Konnagar Municipality against Adrija Construction instead of M/s. Adrija Construction and no registered instruments/documents have been supplied by the opposite parties to the satisfaction of the complainants that rest of the partners namely Amit Kumar Samanta and Suman Karmakar, the other two power attorney holders of the owners of the land have given consent the other two power of attorney holders of the owners of the land have given consent or the owners of the land have any knowledge about their relinquishment or retirement.  The trade license and one of the notarized partnership deed out of three supplied by opposite parties also goes to show that one Saptarshee Ghosh is also the partner of the firm of the opposite parties but his name is not supporting to any of the registered instrument on the basis of which the deed of sale will be executed and registered.  The firm of the opposite parties is not a registered firm and the Partnership deed(s) of the opposite parties which were supplied are unregistered one.

The complainant also states that the complainants approach for House Building Loan from a financial institution and submitted all the documents supplied by opposite parties along with agreement for sale but they asked for death certificate and legal heirs certificate and legal heirs certificate of Nipendra Kishore Das and his wife.  They also want the clarification regarding the infirmity raised in the development agreement and the agreement for sale bout the power of attorney holders and there are several anomalies and inconformity in between the agreement for sale that opposite parties have entered into with complainants, partnership deeds trade license and the Development agreement with Power of attorney between opposite parties and the land owners and therefore due to such unconformities the Complainants apprehend that they will face several legal hazards and worst consequences in future after purchasing the flat as no financial institutions will sanction a loan against the B schedule property due to lack of supporting documents and fictitious power of attorney holders and will remain dissatisfy with those documents in respect of the title of the flat for ever.

The complainant also states that the sanction plan supplied by the opposite parties is of G + 4 as opposite parties have agreed to sale the fourth floor (top floor) and but after inspection and visit the Complainants came to know that there are additional floor which is not within the sanctioned plan.  However, in no way, the opposite parties being the Developers have satisfy the Complainants who are consumer of the opposite parties for purchasing the said flat described in the ‘B’ schedule.

The complainants also states that the opposite parties have also restrained themselves from supplying the documents and inspection of the same before entering into the agreement on 18/08/2020 and as such the complainants were compelled to execute an agreement for sale against the earnest money of Rs. 1,90,000/- (Rupees One lakh ninety thousand).

The complainant also states that complainant no.2 Rojeli Chowdhury Singha approached her mother to lend her a sum of Rs. 1,90,000/- for the purpose of payment of the earnest money to opposite parties and her mother applied for gold loan against mortgage from State Bank of India, Chinsurah Branch and gold ornaments owned by Rojeli Chowdhury Singha and her mother were mortgaged to get a loan of Rs. 2,00,000/-(Two Lakhs) and the State Bank of India, Chinsurah Branch on 14/08/2020 granted the said gold loan to Rumjhum Chowdhury the mother of the Complainants and the said loan is to be repaid by the complainant no. 2 in 36 months EMI of the said loan in 6221/- and therefore the complainant no.2 will have to pay Rs.23,956/- as interest for 36 months and the complainants is also entitled to the said interest from the opposite parties apart from the return of the earnest money so paid as she is paying the interest due to illegal and unfair trade practice by the opposite parties no. 1 to 3.

The Complainants also states that the opposite parties have failed to supply the relevant and necessary documents in support of the title and ownership of the flat described in the ‘B’ schedule and there was a telephonic discussion on 21/08/2020 in between the opposite parties and the Complainants wherein opposite parties have stated that opposite parties will return the earnest money after deduction 20% of the earnest money and the Complainants were astonished and asked the reason for such deduction but the opposite parties have refused to give any reasoned answer and there is no such clause in the agreement for sale that in the event of cancellation of agreement on the ground stated above that 20% amount will be deducted by the opposite parties and the rest will be refunded.

The Complainants also states that the opposite parties have deliberately failed to supply the necessary legal documents and supply the names of the actual power of attorney holders who will sign in the deed of sale for purchasing of the said flat to the complainants.  The complainants also states that the opposite parties have also refused to refund the earnest money in full which tantamount to unfair trade practice and deficiency in service on the part of the opposite parties and therefore the complainants have no alternative but compelled to terminate the agreement for sale on 18/08/2020 with the opposite parties to ignore any sort of future legal hazards and several worst consequences based on these vexatious documents supplied by the opposite parties.

The Complainants also states the opposite party no. 1 is the partnership firm and as such it has been impleaded as a necessary party. The opposite parties no. 2 and 3 are the partners of opposite party no.1 and they have made all above stated transactions with the Complainants and the opposite party no. 2 and 3 being the partners of opposite party no.1 and opposite parties no. 4 and 5 being the land owners are jointly and or severally liable for such unfair trade practice stated above and have cheated the complainant.

The Complainants also states that in violation of the terms and conditions of the said agreement and for suppressing the fact regarding the partnership deed and trade license and other documents as stated above, the complainants terminated the impugned agreement for sale dated 18/08/2020 with the opposite parties no. 1 to 3 as they are not willing to purchase the said flat from the opposite party no. 1 to 3 on the ground stated above as they will suffer a lot and will harass in future in purchasing the same against such huge amount.

The complainants also states that the cause of action of the complaint lastly arose on 04/09/2020 and 08/09/2020.

Complainant filed the complaint petition praying directions upon the opposite party to pay sum of Rs.1,90,000/- together with 18% interest from Opposite parties 2 and 3 for refund of earnest money and to pass an order by directing the opposite parties to pay the interest of gold loan of Rs.23,956/- and to pay Rs. 1,50,000/- for compensation and damage for causing mental pain, agony and prolonged harassment of  the Complainant and to pay Rs.50,000/- as litigation cost and to pass any other relief /reliefs as the Commission may deem fit for the complainant.

The opposite party No.2 and 3 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite party submits that Complainants do not have any cause of action or right to sue and that the complaint is not maintainable in its present form and prayer and the complaint is barred under the principles of estoppels, waiver and acquiescence and under the provision of Specific Relief Act and that the complaint is barred under the law of limitation and defects of parties and that the averments of the complaint which are not specifically admitted may be deemed denied.

The opposite parties also stated that the complainant asked the answering Opposite parties to supply documents in support of the project of the Opposite parties and the opposite parties Flat described in the A & B schedule of the complaint but the opposite parties stated that the documents relating to the land and the flat would be supplied to them only after execution of the agreement for sale and receipt of the earnest money is denied and disputed.  In fact after perusing copies of all deeds and documents in connection with the property mentioned in the schedule A and B of the complaint and being fully satisfied the complainants entered into an agreement for sale on 18/08/2020 with the M/S Construction represented by its partners Viz.  Opposite party no. 1 and 2.

The opposite parties also stated that they supplied copies of the deeds and documents including the death certificate and heirship certificate of late Nipendra Kishore Das and retirement deeds of the two partners of the partnership firm namely M/s. Adrija Construction sufficient time before 18/08/2020 i.e. before execution of the agreement for sale.

The Opposite parties also stated that M/s. Adrija Constructions, the answering opposite parties beg to state that the fact of relinquishment of the other partners Viz. Amit Kumar Samanta and Suman Karmakar was intimated earlier so the question of their joining the sale agreement does not arise and before execution of the sale agreement and the said flat was intimated before agreement to the complainants and however out of mistake the fact of retirement of Amit Kumar Samanta was omitted in para 7 of the agreement though oversight.

The opposite parties also stated that the obtaining of Home loan by the intending purchasers is not a condition precedent for entering into agreement for sale with the Opposite parties and it is the duties of the intending purchaser to make payment of the agreed sum of money on account of consideration as per condition envisaged in the agreement by the stipulated period and failure would entail the opposite parties of the agreed procedure. 

The opposite parties also stated that it is agreed that the developer shall be at liberty to make such changes in the plan as deemed expedient with the approval of the Architects and at this stage the purchaser cannot raise any objection thereto.

The Opposite parties also stated that the opposite parties cannot have liability about the so called Gold Loan obtained by the mother of the complainant no. 2 because the opposite parties never approached the mother of the complainant no. 2 to obtain Gold Loan for payment of earnest money to the opposite parties as per agreement.

The Opposite parties also stated that they have not cancelled the agreement but the complainant have done it on the trifling ground that the Bank is not interested to give Home Loan but the complainants have not filed any iota of papers from which it can be inferred that the land owners do not have title over the A schedule property and there has been any material defect in the flat sought to be sold. Therefore the opposite parties have reasonably stated as per agreement that they would return the earnest money deducting 20% of the same as per agreement in the event of complainants unilaterally terminates the agreement.

The opposite parties also stated that finding there is no way to escape payment of balance consideration money which amounts to Rs.15,54,000/- and   incidental charges of the registration of the sale deed and stamp duty the complainants are mad to find out a way for termination of the sale agreement and for no fault of the opposite parties they have blamed with the unfair trade practice and deficiency of service allegations in the name of legal hazards. So there is no unfair trade practice or deficiency of service on the part of the opposite parties.

            The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.

            Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument as advanced by the agents of the complainants and the opposite parties heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainants are the consumers of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainants are entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1). In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are Consumers as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainants herein are consumers of the opposite parties.

2).Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainants as per prayer of the petition of complainant it appears that those are not exceeding Rs.50,00,000/-. So, this Forum/ commission has territorial/pecuniary jurisdiction to entertain and try the case.

3). The complainants in their written notes of argument averred that the agreement dated 18.8.2020 stated that in the schedule ‘E’ that if the purchasers failed to comply with the aforesaid mode of payment they shall be served with a notice of demanding the payment of the defaulted amount, failing which the agreement will be treated as cancelled and the purchaser (Complainants herein) shall get refund of the amount deposited by the complainant after deducting 20% of the said amount.  In the particular case the agreement was entered into between the parties on 18.08.2020 and the cheque was presented and was credited in the account of the opposite parties on 19.08.2020 for a sum of Rs.1,90,000/-. Therefore the question of defaulting payments by the purchasers does not arise.  Secondly in the written version the opposite parties admitted that the fact of retirement of Amit Kumar Samanta was omitted in paragraph no.7 of the said agreement for sale through oversight and therefore the omission of fact in the agreement as well as power of attorney and development agreement on the basis of which the deed will be registered cannot be tenable and the purchaser will suffer irreparable loss and will face harassment in future in case the deed of the flat is registered in favour of the complainants.  Thirdly the opposite parties in para No.17 of their written version stated that as per agreement they would return the earnest money of Rs.1,90,000/- after deducting 20% of the same as per agreement. Therefore the dispute in the case only rest upon return and the non return of the 20% of the amount with deduction or without deduction. If the opposite parties admitted to return 80% of the said amount other allegation did not come to focus. The complainants further assailed that the impugned agreement does not reveal nor there no averment in the agreement for sale that 20% will be deducted if the complainants here in paid the amount. According to these complainants the title of the property is disputed as stated above and the question of registration of the same doesn’t arise at all

Opposite parties in their argument stated that the complainants entered into agreement after receipt of copies of document sought for. Had they not received the documents and satisfied about the title and legal papers they would not had entered into agreement and make payment of the earnest money by drawing cheque in favour of the opposite parties. Making payment of earnest money to book a flat is a responsibility of the purchaser. How they would collect it and from whom they would collect it is not the seller’s responsibility. The other customers of the opposite parties obtained House Building loan in favour of intending purchaser of flats within the multistoried building constructed over “A” scheduled property of the agreement from banks and financial institutions including SBI, ICICI and IDBI having been satisfied about the title and legal papers. The opposite party informed the complainants by letter dated 16.09.2020 that the flat in question is completed and ready. Finding that there is no way to escape payment of balance consideration money which amounts to Rs.15,40,000/- plus incidental charges of the registration of sell deeds and stamp duties. The complainants find out a way of termination of sell agreement for no fault of the opposite parties. According to the opposite parties the complainants are quite aware of the clause that the purchaser is to take possession of the flat within 15 days from the date of receipt of the letter of the developer regarding completion of the flat and in case failure the agreement will be treated as terminated and the purchaser would be getting refund of the amount deposited after deducting 20% of the same within one month from getting new booking of such fact without interest and the developer shall have every right to sell the flat to other person.

The agreement dated 18.8.2020 speaks that the complainants entered into agreement with the opposite party by putting their signature on each page along with two partners viz. Siddhartha Ghosh and Jayanta Karmakar of Adrija Construction. The schedule ‘D’ refereed to total consideration for the said flat including proportionate share of land and common portion is Rs.19,00,000/-only subject to final measurement. And Rs.1,90,000/- out of total consideration money shall be paid at the time of execution of this agreement paid by cheque no. 292587 dated 18.8.2020 drawn on SBI Garbeta Bazar Branch. It is also mentioned that Rs.17,10,000/- out of the total consideration money the balance amount shall be paid at the time of possession and/or registration of the concerned flat, whichever is earlier. It is also stated that the mode of payment as stated above is the essence of this agreement. If the purchaser fails to comply with aforesaid mode of payment they shall be served with a notice of demanding the payment of defaulted amount with 15% interest with 30 days from the date of demand, failing which this agreement will be treated as cancelled and/or terminated and the purchaser shall get refund of the amount deposited by them after deducting 20% of the same within one month from getting new booking of such flat without interest and developer shall have every right to sell the respective flat to any other person.

The development agreement with General Power of Attorney dated 18.12.2017 speaks that an agreement constituted among 1. Soumyendra Kishore Das, s/o Late Nripendra Kishore Das and 2. Ms. Barnali Das, d/o Late Nripendra Ksihore Das referred to land owner and M/S Adrija Construction represented by its partner viz. Shiddhartha Ghosh, Amit kumar Samanta, Jayanta Karmakar and Suman Karmakar referred to as developer.

Upon hearing the arguments and perusing the case record and documents it appears that the complainants herein being the intending purchasers entered into agreement with the 2 partners of Adrija Construction to purchase a flat measuring 745 sq ft covered area more & less, being flat no 402 in Gitanjali Apartment within Konnagar Municipality ,Hooghly, Pin.712235 and after going through the photocopies of chain deed , ROR , Power of Attorney & Agreement of sale deed the complainantbeing not satisfied refused to accept the impugned flat by paying the balance consideration money amounting to Rs.17,10,000/- out of total consideration money of Rs.19,00,000/-. Dispute cropped up in between the parties when the opposite party represented by 2 partners refused to return back the earnest money amounting to Rs.1,90,000/- to these Complainants. Inspite of several requests and reminders the opposite party failed to return the earnest money to these complainants. Then the complainant getting no alternative filed instant complaint before this Forum/ commission praying directions as incorporated in the prayer portion of the complaint petition. It is transparent from the agreement that the intending purchasers are entitled to get return of the earnest money deducting 20% of the same. According to the version and argument of the opposite party,If the purchaser fails to comply with aforesaid mode of payment they shall be served with a notice of demanding the payment of defaulted amount with 15% interest with 30 days from the date of demand, failing which this agreement will be treated as cancelled and and/or terminated and the purchaser shall get refund of the amount deposited by them after deducting 20% of the same within one month from getting new booking of such flat without interest and developer shall have every right to sell the respective flat to any other person. In the instant case even during the pendency of the complaint petition the opposite party never approached the complainant to receive the 80% of the earnest money amounting to Rs.1,90,000/-. So the complainants being aggrieved filed the instant complaint petition. It is palpably clear that the complainant several times requested the opposite parties for getting the refund of earnest money but all their efforts came in vain due to apathetic attitude of the opposite parties. It is not expected from the part of the opposite parties to create the terms of the agreement which is bad in law. So we may safely conclude that complainants proved their case beyond reasonable doubt by adducing documents and hearing arguments.

4). The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of refund of advance money in favour of the complainants and the complaint petition is deserved to be allowed with cost & compensation.

Hence, it is ordered that the complaint case being no.60 of 2020 be and the same is allowed on contest against the opposite parties with a litigation cost of Rs.10000/-.

The opposite parties are directed to pay a sum of Rs.1,52,000/- i.e. the 80% of the advance money within 45 days from the date of passing this order. 

 The opposite parties are further directed to pay compensation of Rs.20,000/- for mental pain & agony of these complainants within the stipulated time.

At the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.