MRS. FIROZA KHATOON, PRESIDENT
The case of the complainants is that they had entered into an Agreement for Sale dated 02.04.2015 with the opposite party nos.1 and 2 to purchase one self contained, residential flat on the second floor back side of premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 measuring about 1080 sq. ft. + 10% super build up area for a consideration of Rs.48,60,000/- (Rupees forty eight lakh and sixty thousand) only @ Rs.4,500/- (Rupees four thousand five hundred) only per sq. ft. The complainants paid a sum of Rs.18,00,000/- (Rupees eighteen lakh) only and Rs.12,00,000/- (Rupees twelve lakh) only on 23.03.2015 by two cheques to opposite party no.2 who is the proprietor of M/s Apurba Construction (opposite party no.1). Thereafter on 16.07.2015 the complainants again paid Rs.10,00,000/- (Rupees ten lakh) only to the above referred opposite parties through UTR. The complainants alleged that as per terms and conditions of Agreement for Sale dated 02.04.2015, the opposite party nos.1 and 2 were liable to deliver possession of the flat within 24 months from the date of execution of the Agreement for Sale but in spite of payment of Rs.40,00,000/- (Rupees forty lakh) only in total, the opposite party nos.1 and 2 have failed to deliver possession of the flat and to execute the Deed of Conveyance in their favour. The complainants specifically state that the construction of the residential flat was to be made as per sanction plan dated 05.10.2012. The complainants several times demanded the possession of the flat but in vain. Thereafter, the opposite party nos.1 and 2 vide their letter dated 07.05.2018 agreed to pay interest @ 10% on sum of Rs.40,00,000/- (Rupees forty lakh) only which was paid by the complainants as there was delay in the work of construction of the building and handing over the possession of the flat to them. On 09.03.2021, the complainants sent a legal notice dated 09.03.2021 upon the above referred opposite parties on demand of the possession of flat and agreed to pay out standing dues if any. Such notice was returned by the postal authority with endorsement ‘no such person in the address’; ‘not known’. The complainants specifically alleged that the opposite party nos.1 and 2 have not constructed the building as per sanction plan dated 05.10.2012. Till date the opposite parties have not identified the flat in question neither delivered the possession of the same in favour of the complainants. Such act on the part of the opposite parties tantamount to deficiency in service as such they are liable to complete the work of construction as per sanction plan dated 05.10.2012 and to hand over a flat measuring about 1080 sq. ft. + 10% super build up area which is fully described in the second schedule of the Agreement for Sale dated 02.04.2015 inter alia with other reliefs.
Complainants made no averment in their pleading as to why pro-forma opposite party no.3 Sri Joy Sankar Roy and pro-forma opposite party no.4 Sri Sib Sankar Roy have been made parties to this case.
The opposite party nos.1 and 2 by filing written version state that the complainants entered into an Agreement for Sale on 02.04.2015 with them to purchase one self content flat measuring about 1080 sq. ft. covered area, second floor back portion at premises no.1/1B Padma Nath Lane, Kolkata – 700 004. The said agreement contains a payment schedule. It has been alleged by the opposite parties that the complainant failed to make payment as per schedule mentioned in clause 3 of the Agreement for Sale dated 02.04.2015. The opposite parties further state that initially a plan being no.2012020030 was sanctioned by the Kolkata Municipal Corporation on 05.12.2012. The said plan was subsequently revised and a revised plan was sanctioned by the Kolkata Municipal Corporation on 01.10.2015 being sanctioned plan no.2015020016 in respect of the same premises. The said facts were duly conveyed/intimated and the revised plan was handed over to the complainants. The opposite parties constructed the multi storied building at the said premises according to the revised sanctioned plan.
According to the opposite parties, there was no facility of lift in the previous plan which was sanctioned in the year 2012. In the subsequent revised sanctioned plan the facility of lift was incorporated. Due to the subsequent modified plan there was delay in the construction of the building which was within the knowledge of the complainants. The opposite parties state that they are ready to give possession of the flat and they have already applied for completion certificate before the concerned authority which is yet to receive by them. It is alleged by the opposite parties that the complainants in a tricky way got his signature on the purported letter dated 07.05.2018 which was drafted by the complainant no.1 himself. The opposite parties deny that they agreed to pay interest @ 10% on the sum of Rs.40,00,000/- (Rupees forty lakh) only in lieu of delay in handing over the possession of the flat to the complainants.
According to the opposite parties there is no deficiency in service on their part. The complainants have filed the case with ulterior motive as such the case is liable to be dismissed.
Points for determination
- Are the complainants consumer in terms of Consumer Protection Act, 2019 ?
- Are the complainants entitled to get any relief or reliefs as prayed for ?
Decision with reasons
In order to prove the case the complainants have submitted affidavit in chief and affidavit in reply to the questionnaire filed by the opposite party nos.1 and 2.
The documentary evidence submitted in affidavit in chief by the complainants are as follows :
Document-1: Photo copy of the Agreement for Sale dated 02.04.2015.
Document-2 &2/1: Photo copy of cheque dated 23.03.2015.
Exhibit-2/2: Document of payment through UTR.
Document-3: Letter dated 07.05.2018 (not proved).
Document-4: Photo copy of letter dated 09.03.2021 by the complainants.
Document-4/1: Photo copy of postal receipts dated 09.03.2021.
Document-4/2: Photo copy of A/D card.
Document-4/3 : Photo copy of envelopes collectively (two pages).
On the other hand the opposite party nos.1 and 2 submitted affidavit in chief. The complainants submitted questionnaire against the evidence of the opposite parties. Copy of questionnaire was served upon the opposite parties but they have not submitted their reply on affidavit against the questionnaires filed by the complainants deliberately.
Point nos.1 and 2 :
For the sake of brevity and convenience both the points are taken up together for consideration and discussion.
It appears from the record that the complainants entered into an Agreement for Sale dated 02.04.2015 with the opposite party nos. 1 and 2 to purchase a flat at premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 fully described in the second schedule of the aforementioned Agreement for Sale (Document-1). It further appears from the record that the complainants had made part payment of the consideration amount to the tune of Rs.40,00,000/- (Rupees forty lakh) only on different dates to the opposite parties (Document-2 & 2/1; Exhibit-2/2).
Document-1 reveals that the opposite parties agreed to complete the work of construction and deliver the possession and register the Deed of Conveyance within 24 months from the date of execution of the Agreement for Sale dated 02.04.2015. Therefore, it is apparent on the face of the record that the complainants availed service of ‘housing construction’ from the opposite parties on payment of consideration, as such the complainants are consumer in terms of the Consumer Protection Act, 2019.
So, point no.1 is decided in favour of the complainants.
On scrutiny of the materials on record and evidence of the party, we find the following are admitted facts :-
- The complainants had entered into an Agreement for Sale with the opposite party nos. 1 and 2 on 02.04.2015 to purchase a flat at premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 fully described in the second schedule of the Deed of Sale dated 02.04.2015.
- The complainants had paid Rs. 40,00,000/- (Rupees forty lakh) only in total on different dates to the opposite parties as part payment of the total consideration amount of the flat.
- As per the Deed of Sale dated 02.04.2015 the complainants have purchased one self contained flat measuring about 1080 sq. ft. covered area second floor back portion of the building situated at premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 (of which super built up area of 10% on the actual covered area) @ Rs.4500/- sq. ft. out of the developers allocation and the developer/opposite party nos.1 and 2 agreed to sale the said flat to the purchaser.
The complainants by filing the instant case alleged that the opposite party nos.1 and 2 have not constructed the building in accordance to the sanction plan for the year 2012 and deliberately have not delivered the possession of the flat or execute the deed of conveyance in their favour in terms of the Agreement for Sale dated 02.04.2015. Moreover, as there was delay in the work of construction of the building, the opposite parties vide their letter dated 07.05.2018 agreed to pay interest @ 10% on sum of Rs.40,00,000/- (Rupees forty lakh) only which had been paid by them but the opposite parties had not paid so to them till date. Therefore the opposite parties are liable for deficiency in service entitled to get relief as prayed for.
Now let us consider how far the complainants have been able to prove their case. On scrutiny of the material on record it appears that the opposite party nos.1 and 2 in their written version as well as in evidence stated that initially a plan was sanctioned by the Kolkata Municipal Corporation in the year 2012 wherein there was no provision of lift. Subsequently, in the year 2015 /2016 a revised plan was sanctioned by the Kolkata Municipal Corporation in respect of the same building wherein the provision of lift was incorporated and the said fact was duly conveyed / intimated to the complainants by the opposite party nos.1 and 2. It was further stated by them that they have constructed the said multi-storeyed building according to the revised sanctioned plan issued by the Kolkata Municipal Corporation which is well within the knowledge of the complainants. It was also stated that they had handed over the said revised sanctioned plan to the complainants. The opposite party nos.1 and 2 alleged in their written version as well as in their evidence on affidavit that the above facts was wilfully and intentionally suppressed by the complainants at the time of filing of the case.
We find the complainant no.1 who also deposed on behalf of complainant no.2 has not denied the above version of opposite parties in his evidence in chief on affidavit. The opposite party no.1 is M/s Apurbo Construction and its proprietor Sri Anjan Kumar Saha is opposite party no.2. The said opposite party no.2 Sri Anjan Saha filed evidence in chief on affidavit in this case. Copy of the evidence of opposite party nos.1 and 2 was received by the complainant and the complainant filed questionnaire. Thereafter, opposite party nos.1 and 2 had not filed any reply on affidavit to the questionnaire filed by the complainants.
However, on perusal of the evidence in chief filed by the opposite party nos.1 and 2 we find that they have stated initially a plan was sanctioned by the Kolkata Municipal Corporation in the year 2012 wherein there was no provision of lift. Subsequently in the year 2015 /2016 a revised plan was sanctioned by the Kolkata Municipal Corporation wherein the provision of lift was incorporated and the said fact was duly conveyed / intimated to the complainants by the opposite party nos.1 and 2. It was further stated by them that they have constructed the said multi-storeyed building according to the revised sanctioned plan issued by the Kolkata Municipal Corporation. They also handed over the said sanctioned plan to the complainants. The opposite party nos.1 and 2 alleged in their written version as well as in their evidence on affidavit that the above facts was wilfully and intentionally suppressed by the complainants at the time of filing of the case but the complainants have not cross examined the opposite party no.2 on the above referred facts by raising any question in their questionnaires submitted on 21.05.2023.
Therefore, it is apparent on the face of the record that the above referred facts narrated in written version as well as in evidence by opposite party nos.1 and 2 was neither denied by the complainants in their evidence on affidavit nor they had chosen to deny the same by way of cross examining on filing any questionnaire in this regard to refute the above facts.
Neither the complainants nor the opposite party nos.1 and 2 have filed the sanction plan for the year 2012 or for the year 2015/2016.
It further appears from the material on record that an Engineer Commissioner was appointed in this case on the prayer of the complainants for taking measurement of the concern flat. The Engineer Commissioner appointed by this Commission took the measurement of a flat in presence of both the parties at the suit building and submitted his report. The flat which was identified for taking measurement was not objected or questioned by the complainants. The Engineer Commissioner in his report disclosed the measurement of the flat as 706 sq. ft. but it is not mentioned as to whether 706 sq. ft. is carpet area or covered area. Neither party raised any objection against the report of the Engineer Commissioner. As the report of the Engineer Commissioner is not specific about the measurement of the flat, it would be of no help to this case. However, it appears from the evidence of the parties that the complainants had not denied that the opposite parties constructed the building as per revised plan sanctioned by the Kolkata Municipal Corporation which has facility of lift. The complainants remained silent regarding their wiliness or unwillingness to take possession of the flat in the building which was measured by the Engineer Commissioner in presence of and without any objection of both parties.
The complainants in their pleading and evidence alleged that as there was delay in the construction work of the building, the opposite party no.2 wrote a letter to the complainants on 07.05.2018 disclosing that he would pay interest on the sum of Rs. 40,00,000/- (Rupees forty lakh) only @ 10% for delay in construction and handing over the possession of the flats to the complainants.
The opposite party nos.1 and 2 in their written version as well as in affidavit in chief denied the same and stated that the complainant drafted the letter himself and in a tricky way got his signature on the purported letter dated 07.05.2018.
Though this hand written letter dated 07.05.2018 has been submitted by the complainants as documentary evidence (Document-3) but the complainants remained silent in his evidence as to who has written the letter dated 07.05.2018. Moreover nowhere in their evidence, the complainants denied that the signature of the opposite party no.2 in the letter dated 07.05.2018 has been taken by them in a tricky way.
Now the question arise before us as to whether the complainants is entitled to get any decree in their favour for possession of a flat measuring about 1080 sq. ft. at premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 fully described in the second schedule of the Agreement for Sale dated 02.04.2015 ?
It is needless to reiterate that as per Agreement for Sale dated 02.04.2015 the complainants agreed to purchase a flat 1080 sq. ft. covered area on the second floor back portion at premises no.1/1B, Padmanath Lane, P.S.-Shyampukur, Kolkata – 700 004 (of which super built up area will be 10% on actual covered area) @ Rs.4,500/- per sq. ft. out of developers allocation.
Therefore, it also can safely be presumed that both parties had agreed that after completion of construction of the building, measurement of the flat will be taken to ascertain the actual area of the covered space of the flat and then its 10 % will be calculated to ascertain the super built up area upon which the final consideration amount will be paid @ Rs.4,500/- per sq. ft.
Admittedly, the complainants so far have made part payment of the consideration amount of the flat to the tune of Rs. 40,00,000/- (Rupees forty lakh) only to the opposite parties.
We find that the complainants in their pleading and evidence stated that they had sent a legal notice dated 09.03.2021 to the opposite parties demanding the possession of the flat and agreed to pay the outstanding dues if any. Such notice was returned by the postal authority with endorsement ‘no such person in the address’; ‘not known’.
The complainants in their evidence in affidavit filed photo copy of letter dated 09.03.2021 (Document-4); Photo copy of postal receipts dated 09.03.2021 (Document-4/1); Photo copy of A/D card (Document-4/2) and Photo copy of postal cover 2 pages (Document-4/3) [Collectively].
The original letter dated 09.03.2021 purportedly to be sent to the opposite party no.2 has not been submitted in evidence by the complainants. We find a photo copy of the letter dated 09.03.2021 has been submitted by the complainants in evidence which does not bear the original signature of the sender (Document-4). Therefore this letter cannot be treated as original letter dated 09.03.2021 which was allegedly sent by the complainants to the opposite party no.2. Original envelope which was purportedly returned by the postal authority with remark ‘no such person in the addresses’; ‘not known’ has also not been submitted by the complainants in their evidence. In our considered view in absence of original letter dated 09.03.2021 and its original envelope with postal remarks, the genuity of Document-4 series cannot be ascertained. The complainants claimed that vide letter dated 09.03.2021 they had disclosed their readiness and willingness to pay the balance consideration amount of the flat to the opposite parties which was admitted never served upon the opposite party no.2.
On meticulous scrutiny of evidence of the complainants, we find nowhere they have stated that they are ready to perform or has always been ready and willing to perform the essential terms of the contract which are to be performed by them, other than terms the performance of which has been prevented or waived by the defendant in terms of Section 16(c) of the Specific Relief Act, 1963.
It is well settled that where a contract involves the payment of money, does not essential for the complainant to actual tender to the opposite party or deposit the money before the Commission except the same is directed by the Commission but the complainant must aver performance of, or readiness and willingness to perform the contract according to its true construction.
In this case as the complainants specifically prayed for a direction upon the opposite parties to deliver the possession of the flat mentioned in the agreement for sale dated 02/04/2015 in its letter and spirit, it is binding upon the complainants to aver the readiness and willingness to perform their duty to pay the consideration amount @ Rs.4,500/- per sq. ft. for 1080 sq. ft. i.e.48,60,000/- (Rupees forty eight lakh sixty thousand) only at least which they have admitted in their pleading and evidence but they have failed to do so.
Having considered the discussion made above we have no hesitation to hold that in absence of any averment as enumerate in section 16(c) of the Specific Relief Act, 1963 in the complaint and evidence the complainants shall not be entitled to get any relief as prayed for.
Therefore, point no.2 is decided against the complainants.
Thus the case fails.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
Dictated and corrected
….....................
PRESIDENT
