Date of filing : 19.02.2018
Judgment : Dt.1.3.2019
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Subrata Mandal alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s A. G. Construction represented by its proprietor Sri Soumen Chakraborty, (2) United Bank of India, M. L. Gupta Road Branch.
Facts in brief is that the Complainant being intended to purchase a residential flat to be constructed by OP No.1 at Mouza-Purba Barisha, Pargana – Khaspure, J. L. No.23, Touzi No.1-6, 8-12, 12-16, R.S. Dag No.1778, R.S.No.43, Khatian No.809, premises No.494, Tarapada Santra Sarani, P.S.-Haridevpur, Kolkata-700 063, entered into an agreement for sale on 19.5.2014 with OP No.1 in respect of a flat being No.A2 & A3 measuring about 700 sq.ft at a consideration of Rs.11,20,000/- and paid Rs.2,20,000/- to OP No.1 on the date of execution of Agreement for Sale. The Complainant has stated that he obtained housing loan amounting to Rs.9,00,000/- from the OP No.2, which was disbursed in favour of OP No.1 and thus entire consideration amount had been paid by the Complainant but even after receiving entire consideration amount the OP No.1 failed and neglected to hand over possession of the flat in question and to execute and register the Deed of Conveyance in favour of the Complainant within the stipulated period of 12 months as per clause 4 of Agreement for Sale dt.19.5.2014. It is stated by the Complainant that on several occasions, the Complainant requested the OP No.1 to execute and register the Deed of Conveyance and to handover possession but the request went in vain and, thereafter, the Complainant came to know from reliable source that the OP No.1 obtained sanctioned building plan only on 18.6.2015 and on acquiring such news the Complainant sent legal notice dt.7.11.2016 in respect of which the OP No.1 verbally assured the Complainant to handover the flat in question to the Complainant within a very short period but even after expiry of a considerable period, the OP did not hand over the same and again on 27.12.2017, the Complainant sent Demand notice asking the OPs for handover of possession alternatively to refund the deposited amount which also remained unheeded.
It is specifically stated by the Complainant that he availed Housing Loan to the tune of Rs.9,00,000/- from OP No.2 said loan was disbursed to OP No.1 and said loan would have to be paid by 240 equated monthly installments @ Rs.8,831/- per month that means the Complainants have to pay Rs.21,19,440/- to the OP No.2 for repayment of such loan which he availed for purchasing a flat but neither the flat was handed over to the Complainant nor the Deed of Conveyance had been registered in favour of the Complainant, which caused sufferings, mental harassment and agony and, therefore, the Complainant by filing the instant Consumer Complaint prayed for direction upon the OP No.1 to register the Deed of Conveyance in respect of flat being No.A2 & A3 and to hand over peaceful possession of the said flat, to pay interest @ 12% per annum on the deposited amount of Rs.11,20,000/- till handover of peaceful possession of the flat in question, to pay Rs.50,000/- towards compensation, to pay Rs.15,000/- towards cost of litigation and other relief as the Forum may deem fit and proper.
The Complainant annexed photocopies of some documents to the petition of complaint. Those are as follow - Agreement for Sale dt.29.5.2014, Loan Sanction letter, Certificate issued by UBI Statement of Account, Demand Notice dt.7.11.2016, photocopy of A/C of the Complainant, letter dt.27.12.2018 issued by the Complainant to OP No.1.
The OP No.1 contested the case by filing written version, denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the OP was ready and willing to refund the deposited amount along with appropriate bank interest but the Complainant did not want to receive the same only to harass the OP. The OP No.1 has further stated that the Complainant by letter dt.27.12.2017 asked for refund of amount and, therefore, the relation between the Complainant and OP No.1, being service provider and consumer ceased to be existing and, accordingly, prays for dismissal of the case.
The OP United Bank of India also contested the case by filing written version stating inter alia, that the OP United Bank disbursed an amount of Rs.9,00,000/- towards House building loan in favour of the Complainant and paid Rs.7,00,000/-, Rs.50,000/-, Rs. 50,000/- & Rs.50,000/- to the OP No.1 on 4.6.2015, 10.6.20115, 15.6.2015 and 26.6.2015 respectively.
The OP United Bank of India has further stated that the Complainant have been paying EMI @ Rs.8,831/- per month to the OP Bank since then and the averment made in the petition of complaint regarding disbursement of loan and payment of EMIs are correct and accordingly prays for passing necessary order.
The OP United Bank annexed statement of account.
The Complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of argument, Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint and further submitted that alternatively a direction be given to the OP to refund the deposited amount along with interest. Ld. Advocate for the OP No.1 submitted that OP No.1 is ready to refund the deposited amount along with interest as they are not in a position to handover the flat.
Points for determinations
- Whether there is deficiency in providing service?
- Whether the Complainant is entitled for the relief as prayed for?
Decision with reasons
Point Nos.1 & 2 -
Both the points are taken up together for comprehensive discussion and decision. Admittedly, the Complainant entered into an Agreement for Sale with OP No.1 in respect of a flat measuring about 700 sq.ft. to be constructed by OP No.1 and paid entire consideration amount of Rs.11,20,000/- on different dates by paying on his own and obtaining loan from United Bank of India.
It appears from Agreement for Sale dt.19.5.2014 that the said flat was to be handed over within 12 months from the date of execution of Agreement for Sale. On perusal of Memo of consideration, it appears that the Complainant paid Rs.2,20,000/- to the OP No.1 by cheque and cash and on perusal of sanction letter issued by United Bank of India, it appears that an amount of Rs.9,00,000/- has been sanctioned in favour of the Complainant.
It appears from Demand Notice dt.7.11.2016, 27.12.2018 issued by the Complainant that the Complainant asked the OP No.1 to deliver possession of the flat in question and to register the same in favour of him. It is, therefore, evident that as per Agreement for Sale dt.19.5.2014 the flat in question was to hand over within 12 months but the same has not been handed over to the Complainant. It is further evident that the Complainant paid entire consideration amount before the scheduled date of payment and had to pay EMI @ Rs.8,831/- per month without getting delivery of the flat in question within the stipulated period as agreed by the parties which, in our views, amounts to deficiency in providing service on the part of the OP for which the Complainant is entitled to relief.
As regards prayer of registration of Deed of Conveyance and handover of peaceful possession of the said flat, in our view this prayer cannot be allowed since the OP No.1, in course of argument has stated that he is not in a position to deliver the same. If this prayer is allowed it will be a non-executable order and thus will not redress the grievance of the Complainant.
As regards prayer of direction upon OP to pay interest @ 12% per annum upon Rs.11,20,000/- from 26.11.2015, we think this prayer may be allowed. As per clause No.13 of Agreement for Sale in case of any default on the part of the Developer, purchaser is entitled to interest @ 12% p.a. The OP has admitted that he is not in a position to handover the flat in question. Therefore, he has to bear the interest from the date of deposition of the same.
As regard prayer for compensation, we are of opinion that the Complainant is entitled to get an amount of Rs,50,000/- towards compensation. However, prayer for awarding interest on the deposited sum has been allowed but there is no reason to consider that the Complainant by getting award for compensation is allowed to get double benefit. In the instant case, the Complainant has been deprived of getting the opportunity to have his own flat. Considering the point of huge hike of the price of flats housing accommodation in recent past , we think, the interest amount summing up with the deposited (which is now refundable) amount would not be sufficient to purchase a housing accommodation of similar description to the flat in question. Hence, compensation is awarded.
Since the OP No.1 compelled the Complainant to file the instant case, the OP No.1 is liable to pay cost of litigation to the tune of Rs.10,000/-.
As regards prayer of passing necessary order as the Forum thinks deem fit, in our view if a direction be given to the OP No.1 to refund the deposited amount of Rs.11,20,000/- justice would be served.
Point Nos.1 & 2 are decided accordingly.
In the result, the Consumer Complainant succeeds.
Hence,
ordered
That CC/75/2018 is allowed on contest.
The OP No.1 is directed to refund Rs.11,20,000/- along with interest @ 12% p.a. from the date of last payment of the amount till realisation within three months from the date of this order.
The OP No.1 is further directed to pay Rs.50,000/- towards compensation and Rs.10,000/- towards cost of litigation within aforesaid period.
