The complainant has instituted this case to get his flat from the O.P. and registration therein. The case of the complainant which has been laid down in the written complaint is that complainant executed one agreement with the O.P. No.4. The O.P. No.1 & 2 are the owners of the land. The rate was fixed Rs.2000/- per square feet. Consideration money was given. The complainant entered with an agreement with the O.P. after paying Rs.6,00,000/- on 10.6.2015 to the developer as consideration money. The O.P. shall give the flat within 90 days from the date of agreement after taking the rest amount. The complainant was informed by the letter dated 6.7.2015 by the O.P. No.4 requesting to add as per clause 16 of the agreement. As per clause 16 of the agreement, the price for extra work has to be paid to the O.P. No.4 by the complainant. Accordingly Rs.2,00,000/- demanded by the O.P. from the complainant. But complainant’s case as per para-7 of the petition that complainant paid Rs.4,00,000/- on 16.8.2015 inspite of no extra works has been done by the O.P. No.4. The complainant has sent Advocate’s notice requesting the O.P. No.4 to register the flat otherwise to refund the amount of Rs.10,00,000/- to the complainant. It is contended that the O.P. violated the terms of agreement and did not give possession of the flat to the complainant within the time of contract. Accordingly, the complainant has filed this case praying possession and registration of flat and for harassment and damages of Rs.2,00,000/- The complainant described the flat in B Schedule.
The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This O.P. stated that the petitioner entered into an agreement for purchasing a residential flat measuring more or less 750 Sqft. (including super built) at 7, Hari Mohan Pattadar lane, Maa Tara Apartment, 2nd floor with the consideration amount of Rs.16,70,000/- (including installation of electric meter) with the O.P. At the time of execution of the agreement an amount of Rs.6,00,000/- was given to the O.P. as advance and it was the part of the agreement that the rest amount would be given within 90 days from the execution of the agreement. The agreement was executed on 10.6.2015 and thereafter more than 90 days elapsed but the petitioner did not pay a single amount in respect of the dues except Rs.4,00,000/- for extra work.
As per the direction of the petitioner this O.P. constructed several extra work for which in the month of July, 2015 an amount of Rs.2,00,000/- was due and payable to the O.P. but the petitioner did not care to make the amount of extra work. This O.P. issued legal notice dated 16.7.2015 direction to the petitioner to pay Rs.2,00,000/- for extra work within seven day. On 16.8.2017 an amount of Rs.4,00,000/- was paid by the petitioner to the O.P. Thereafter no single farthing in compliance with the agreement for sale was made by the petitioner.
Thereafter this O.P. on 26.9.2015 by sending a letter through his advocate informed the petitioner that the above mentioned agreement executed between the O.P. and the petitioner had been cancelled and the amount deposited by the petitioner was forfeited and the O.P. was free to sale out this flat to new purchaser. But the petitioner did not contact with this O.P.
On the basis of the above circumstances this O.P. lodged as complaint case being No.CR 331/16 before the Ld. ACJM, Serampore which was subsequently transferred before the Ld. 4th J.M., Serampore, U/s.420/406/506/509 IPC. On 23.12.2016 Ld. 4th J.M. Serampore was pleased to issue W/A against the petitioner Sandip Ghoshal. It is unfortunate enough that petitioner is appearing before this Forum but at the same time he is avoiding warrant of arrest pending before the Ld.4th J.M., Serampore by manipulating local police station. Hence, this case.
The complainant has filed some documents like photocopies of agreement executed between the parties (A-P1), Receipt of Rs.6,00,000/- (A-P2), Notice for cancellation for agreement issued by O.P. dated 16.7.2015 (A-P3), receipt of Rs.4,00,000/- issued by the O.P. No.1 (A-P4), issue of registry post (A-P5), Letter of O.P. No.1 dated addressed to complainant (A-P6).
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant is a consumer of the opposite party?
- Whether the complainant has paid all the price of the flat to the O.P. No.1?
3. Whether the O.Ps. are liable for deficiency in service?
4. Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASON
All the three points are taken up together for the brevity and convenience of the discussion.
The complainant filed his evidence in chief where he stated that he made agreement with the Surendra Prasad, O.P. No.4 owner of Basuki Construction to purchase one flat of 750 Sq.ft. at the rate of Rs.2000/- per square feet. He paid Rs.6,00,000/- out of Rs.15,00,000/-. On 16.7.2015 as per claim of the O.P. complainant paid on 16.8.2015 Rs.4,00,000/- i.e. complainant paid total Rs.10,00,000/- to the O.P. No.1 & 4 out of consideration money i.e. price of the flat. In the evidence complainant stated in para-6 that he requested the O.P. No.1 & 4 to deliver the possession of the flat and came to know that O.P. No.1 has already sold the flat. On 7.4.2016 the complainant sent advocate’s letter to give delivery of the flat and do registration of the flat. But the O.P. failed and neglected for registration of the flat and delivery of the flat. In evidence the complainant has stated that he has paid Rs.10,00,000/- total to the O.P. No.1, construction company. As per agreement the time was 90 days for giving delivery of possession. The agreement was done on 10.6.2015. The complainant paid Rs.6,00,000/- on 10.6.2015 and further the complainant paid Rs.4,00,000/- on 16.8.2015. The date of completion of construction as well as delivery of the flat was within 90 days from 10.6.2015 i.e. within 10.9.2015 but within this time the complainant did not pay the amount. So the last date for the complainant to take possession and full payment was within 10.9.2015. There is no other document to show what had actually happened after execution of document i.e. after 10.6.2015 to 10.9.2015. The 10.9.2015 was the last date for making full payment and taking the flat after registration. The agreement between the parties are binding upon the parties as per clause No.2 & 3 of the agreement. It was decided that the complainant shall take the flat after given total consideration money and take the flat by registration. It has further been laid down in the said agreement that if any party fails to carry out the terms of the agreement then agreement will be declared void and the complainant will be at liberty to sell the property to anyone.
In this case in our hand admittedly agreement was executed by the both side and was valid till 10.9.2015 i.e. 90 days from 10.6.2015. Within that period, as per complainant’s evidence as well two receipts dated 10.6.2015 and 16.8.2015 complainant paid Rs.10,00,000/- out Rs. 16,70,000/- as per record the complainant did not make any payment and there is nothing in record to write the judgment what has happened after the second payment to 10.9.2015 and after 10.9.2015 the complainant is out of track till 7.4.2016. In which the O.P. has replied on 25.4.2016 where it has been depicted that the complainant has failed and neglected to comply the said agreement and the O.P. has cancelled the agreement and the amount deposited by the complainant has been forfeited. There is no whisper in record and argument that complainant paid full amount as per agreement as a price of the flat in question or whether complainant made instruction or request to the O.P. to take the remaining amount by or within 10.9.2015 by taking money and deliver possession and make registration of the flat in favour of the complainant. Accordingly, the complainant failed to prove his case by adducing cogent evidence and action in terms of the agreement because the fact is that none can go beyond the agreement between the parties. Accordingly, it is
Ordered
that the case be and the same is dismissed on contest against the O.Ps.
Let the copies of this order be supplied to the parties free of cost.
