HON’BLE MR. SHYAMAL KUMAR GHOSH, MEMBER
The complainant has filed the instant case against the ops before the State Commission and prayed for direction upon the ops to hand over the peaceful vacant khas possession of the flat in habitable condition, direction upon the ops to execute and register the deed of conveyance in favour of the complainant and also to refund the excess amount of Rs 22,45,000/- plus Rs 1,55,410/- with 12% interest, direction upon the ops to provide completion certificate of the newly constructed building along with compensation, cost etc.
The brief fact of the case is that the op1 is a proprietorship developer firm, op2 is a developer and op3 is a land owner. Op3, being a land owner, intended to raise a construction on the schedule premises and entered into a development agreement on 10/07/2013 with the op 1. The op2 had full and absolute power for proper implementation of the said project and to deal with flats therein except the owner’s allocation. Op3, Sri Asim Kumar Chakraborti, being a land owner, executed a registered General Power of Attorney in favour of the op 2, Sri Malay Bose, developer on 10/07/2013. The building plan was sanctioned by the KMC vide plan no 2013070176 dated 15/12/2013. The op 2 offered the complainant to sell a flat and she also accepted the said offer. Accordingly the complainant entered into an agreement for Sale with the ops1 to 3 on 24/02/2014 and the total consideration amount has been fixed for Rs 50,55,000/- only payable in installments in terms and conditions of the said agreement. But the complainant already paid Rs 73,00,000/- by way of cash payment as well as cheques on the different dates and the developer acknowledged such payments. Ops 1 & 2 already received excess amount of Rs 22,45,000/- from the complainant illegally. Complainant already paid Rs 1,55,410/- to the developer towards service tax through a/c payee cheque and the developer also acknowledged the same. The ops 1 & 2 illegally collected the excess amount of Rs (22,45,000 + 1,55,410) = Rs 24,00,410/- from the complainant which is beyond the agreement for sale dated 24/02/2014. The ops 1 & 2, intentionally delayed the construction work. The complainant requested the ops to complete the construction work by issuing number of letters, but in vain. Till date, the ops have failed to provide proper service to the complainant causing clear deficiency in service on the part of ops. Hence the case.
Ops 1 to 3 have failed to file their written version. So the case is running ex parte against all the ops. Even on 22/04/2019, none appeared on behalf of the ops and as such the case was taken up for ex parte hearing.
We heard the ld. Advocate for the complainant at length. Considered her submission and perused the materials on records.
Before explaining the other issues involved in the complaint case, we try to decide whether the instant complaint case falls within the purview of Consumer Protection Act, 1986 or not as well as whether there is any gross negligence or deficiency in service on the part of ops or not in the instant case.
The complainant has already paid Rs 20,00,000/- (Twenty lakh only) at first out of total consideration amount of Rs 50,55,000/- as an advance amount to the developer by way of cheque being no – 006421 dated 22/02/2014 drawn on ICICI Bank in respect of booking of the flat and car parking spaces mentioned in “SCHEDULE B” of the memorandum of Appeal which is clearly revealed from the Memorandum Of Consideration in page no. 30 of the Agreement For Sale dated 24/02/2014.
From the said Agreement mentioned earlier, it is clear to us that the complainant has initially paid Rs 20,00,000/- as an advance consideration amount and the developer received the same after putting his signature on the said document in presence of witnesses in respect of booking the flat in question. So the ops are to be treated as “service providers” and as such the complainant comes within the purview of the definition of the “consumer” as per Consumer Protection Act, 1986.
It is admitted fact that a development agreement has been executed between the owner viz. Sri Asim Kumar Chakraborti and M/S Amrapali Property Consultants (sole proprietor viz. Sri Malay Bose) on 10/07/2013. It is also admitted fact that by way of power of attorney the owner viz. Sri Asim Kumar Chakraborti nominated and appointed Sri Malay Bose as his true and lawful attorney and in this respect a Power of attorney has been executed between the parties on the self same date ie on 10/07/2013. It is also true and admitted fact that an agreement for sale has also been executed between the ops and the complainant in the instant case on 24/02/2014 wherein the ops declared to hand over the flat measuring area 1302 sft including covered car parking space measuring area 120 sft in favour of the complainant on or before 18 months from the date of execution of the said agreement. The said agreement dated 24/02/2014 clearly reveals that the total consideration amount of the said flat has been fixed for Rs 50,55,000/- only and to that effect the complainant made the following payments :-
- Vide cheque no – 006421 dated 22/02/2014 20,00,000/- drawn on ICICI Bank
- By cash dated 22/02/2014 12,00,000/-
- Vide cheque no – 006422 dated 26/03/2014 61,800/-drawn on ICICI Bank(service Tax)
- By cash dated 04/06/2014 12,00,000/-
- Vide cheque no – 718302 dated 04/06/2014 8,00,000/-drawn on ICICI Bank
- Vide cheque no – 718303 dated 04/06/2014 24,720/- drawn on ICICI Bank (service Tax)
- Vide cheque no – 007431 dated 03/07/2015 21,00,000/- drawn on ICICI Bank
- Vide cheque no – 007432 dated 03/07/2015 64,890/- drawn on ICICI Bank (service Tax)
Total payment Rs. 74,51,410/-
We have perused the statement of transaction of savings bank a/c being no - 037201002032 maintained by Mr. Phanindra Chandra Saha (father of the complainant). This document clearly reveals that both the cheque amount of Rs 20,00,000/- and Rs 61,800/- have already been withdrawn by the op Amrapally Property consultants after encashment of cheque being nos – 6421 & 6422 on 03/03/2014 & 29/03/2014 respectively. We have further perused the statement of transaction of savings bank a/c being no – 037201001801. This document also reveals that the cheque amount of Rs 8,00,000/-, Rs 24,720/-, Rs 21,00,000/-, and Rs 64890/- have already been withdrawn by the op A.P. Consultants after encashment of cheque being Nos. – 8302, 8303, 7431 & 7432 on 07/06/2014, 07/06/2014, 07/07/2015 & 07/07/2015 respectively. From the payment details, mentioned above, it is clear to us that the complainant has already paid Rs. 74,51,410/- out of total consideration amount of Rs. 50,55,000/-. It is also clear that out of total payment of Rs 74,51,410/- the complainant has paid the amount of Rs. 61,800 + Rs. 24,720 + Rs. 64,890 = Rs.1,51,410/- towards the service tax. But from the four corner of the agreement dated 24/02/2014, it is found that there is no such whisper to make payment of said service tax by the complainant as per terms of the agreement. Instead of specific direction to the complainant in the said agreement in connection with the matter relating to payment of service tax, collection of said amount of tax from the complainant causes clear gross negligence and unfair trade practice on the part of the ops. It is also proved from the above observations that the ops collected extra/excess amount of Rs 74,51,410 – (1,51,410 + 50,55,000) = Rs. 22,45,000/- (Twenty two lakh forty five thousand) only from the complainant. But it was very unfortunate that the ops, thereafter, did not provide proper service to the complainant. Moreover, the complainant requested the ops to deliver the possession of the flat including car parking space in complete and habitable condition and to execute and register the deed of conveyance in favour of the complainant. He also requested the ops to refund the excess amount along with interest @ 9 % pa. by way of advocate’s letter dated 15/12/2017. But instead of taking excess consideration amount from the end of complainant, the ops have totally failed to provide proper service to the complainant till date causing clear gross negligence and deficiency in service on the part of ops.
Moreover no written version was filed by the ops and for that reason the case proceed ex parte against the all ops. So in view of above, there is no hesitation to hold that even after getting sufficient opportunities to file written version, the ops kept mum causing clear admission of the allegations stated in the petition complaint filed by the complainant before this Commission.
In Sanjoy Kr Gupta vs Kebal Kisahan Baran and others reported in 2014(3)CPR236(NC) , Hon’ble National Commission held that Consumer Forum is primarily meant to provide protection to consumers and their claims cannot be defeated on technical grounds. Moreover the preamble of Consumer Protection Act, 1986 clearly speaks for providing better protection of the interest of the consumers. It should also be remembered that the Consumer Protection Act 1986 is a benevolent social legislation and for that reason the allegations raised by the complainant against the ops clearly reflected in his / her petition should be considered properly. It is the primary duty of the Consumer Fora to look into the interest of the consumers otherwise the object of the said Act of 1986 is to be frustrated which will cause gross injustice to the consumers in our society. In view of the above discussion, we allow the petition of complaint ex parte against the ops, direct the ops to execute and register the deed of conveyance in favour of complainant within 90 days from the date of this order, to hand over the peaceful, vacant possession of the said flat to the complainant in habitable condition within the said stipulated period of time, to refund the excess amount of Rs. 22,45,000/- (Twenty two lakh forty five thousand only) plus Rs 1,51,410/- (One lakh fifty one thousand four hundred ten only) to the complainant within the said stipulated period of time along with interest @ 10% pa. from the date of filing of the instant case till realization of the full amount, to deliver the completion certificate of the said flat, to pay litigation cost of Rs. 30,000.00 (Thirty thousand only) to the complainants within the said stipulated period of time i.d. the said litigation cost shall carry interest @ 10% pa from the date of this order till its realization. Complainant is at liberty to put the order in execution if the OPs fail to comply with the order.
The cost of such registration shall be borne by the complainant personally.
