FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that OP- 1 through its director i.e. op-2 entered into development agreement with op -3 on 16^th December 2015 to develop, schedule mentioned property at the cost of op-1 which was registered before the office of ADSR, Chandannagore and recorded in Book no.1 volume no.0604-2015 pages from 45277 to 45298 being no.0604 03121 for the year 2015.  Through the aforesaid Development agreement op-3 agreed to sign all the deed of conveyance in favour of the intending purchasers. The OP-3 has also executed one general power of attorney in favour of the op-2, authorizing him for the purpose of plan sanction of the schedule mentioned property and to represent before all Govt., semi Govt. and all other statutory bodies and also represent before judicial and quasi judicial bodies and also  to execute deed of conversance on behalf of the op-3 in favour of the intending purchaser, vide power of attorney being no.150 for the year 2012, executed before ADSR Chandannagore and recorded in book no.4 C.D. volume no.1 pages 1904-1915. OP-1 & 2 got the plan sanctioned over schedule mentioned property from Chandannagore Municipal Corporation being no. D-3/RB/168/2012-2015 dt.08.05.2013 and accordingly started construction of “Bandhan Housing” .  The complainant was in search of a residential flat at Mankundu locality and after watching the advertisement on the road, complainant went to  the op-1 & 2 and after thorough demonstration on part of op-2 regarding the on going project and prima facie scrutinizing the legal document regarding schedule mentioned and the proposed building, complainant selected schedule mentioned unit.  OP-2 has fixed Rs.18 lakh as consideration price of the schedule unit which fits within the budget of the complainant.  Accordingly on 8.5.2014 complainant delivered cheque no.629085 dt.8.5.2014 of SBI Alipur Branch amounting Rs.11000/- in favour of op-1 in order make pencil booking of schedule mentioned unit.  As per demand of op-2 complainant issued another cheque bearing no.629086 dt.24.5.2014 of SBI Alipur Branch amounting Rs.640000/- as earnest booking money of schedule mentioned unit.  Thereafter on 6.2.2014 and 3.1.2015 complainant has paid Rs.30000/- and Rs.165000/- by way of cash in favour of op-1 for which op-2 on behalf of op-1 issued proper money receipt in favour complainant.

The complainant thereafter applied before LIC housing finance for financial assistance of Rs.1000000/- in the form of house building loan at an interest rate of 10 % per annum and accordingly same was duly sanctioned by the LIC housing finance for the purchase of schedule mentioned flat over schedule mentioned property thereafter LIC housing finance issued cheque no.154216 dt.25.2.2016 of HDFC Chinsurah branch in favour of OP-1 amounting Rs.800000/-.  After payment of sum of Rs.1646000/- in five phases as booking money of the flat the complainant has entered into agreement for sale on 7.3.2015 with op-1,2 & 3 for the purchase of schedule mentioned flat situated over schedule mentioned property which was registered before the office Additional register of Assurances III, Kolkata, being no.19030022 for the year 2015 and the same was duly registered in book no.1, volume no.1903-2016 pages from 7179 to 7201 where in it has been agreed by and between the parties that the ops shall deliver schedule mentioned flat as per the specification mentioned in schedule of the said agreement for sale with the right to access common portion mentioned in the schedule mentioned of the agreement for sale within September 2015, subject to the payment of consideration money as mentioned in clause 2 of the said agreement for sale.  The aforesaid agreement for sale being no.19030022  for the year 2016 was prepared under the supervision of Ld. Advocate appointed by OP-2 as a result complainant hardly got few minutes to go through the content of the aforesaid agreement for sale, before placing the same to the Register for registration procedure, when the complainant received the original agreement for sale he found that at page no.4 clause no.2 of the aforesaid agreement for sale it is written that “for the total consideration of Rs.1800000/- only out of which the purchaser have already paid sum of Rs.651000/- only as booking money” but the fact remains that as it is already discussed earlier that the complainant has paid total sum of Rs.1646000/- in favour of OP-1 on or before execution of aforesaid agreement for sale.  As a result complainant rushed to op-2 and requested him tomake necessary correction before the ARA-III, Kolkata but the op-2 assured the complainant by stating that all the payments made are in record, hence there is no necessity to complicate thematter and told thecomplainant that at the time of final execution of deed of sale, that error can be rectified and the complainant on good faith agreed with the op-2.  The complainant has paid another Rs.10000/- by cash on 23.4.2015 in favour of OP-1 for which op-1 has duly issued money receipt in favour of the complainant.  The ops failed to comply the conditions stipulated there in the said agreement for sale and asked the complainant for further extension of time and also asked for payment of further sum of Rs.130000/-  as the project is undergoing financial stringency.  Accordingly the complainant  issued cheque no.629093 dt.3.8.2015 of SBI Alipur Branch amounting Rs.130000/- but after laps few months the complainant found that ops stopped constructing the proposed building and the same is lying in an unfinished condition having no outside and inside plaster, without any wiring and with an unfinished floor.  Hence thecomplainant send onelegal notice through his ld. Advocate on 18.4.2016 by registered post with A/D in favour of OP -1 to 3 which was returned after several attempts on 28.4.2016 and op-3 received notice.  Thereafter on several occasion the complainant went to all the ops requesting them to complete the construction work and deliver the possession of the same in favour of him and to execute final deed of sale of schedule mentioned flat in favour of the complainant.  But all were in vain, lastly on 20.7.2016 when the complainant being in a worried condition visited op-1 & 2 and told to op-2 about the financial losses he is facing, as the complainant has to pay the monthly equated installments to the LIC Housing finance amounting Rs.13336/- per months and rent for his house amounting Rs.4000/- per month at a time inall succeeding months, but the sufferance of the complainant does notmakeanydifference before the ruthless behavior of op-2 and op-2 straight forward told the complainant that his company i.e. op-1 has left the project and alsotold toforget about what the complainant has already paid in favour of op-1.

Complainant filed the complaint petition praying direction upon the opposite party to complete the building over scheduled mentioned property collect building completion certificate from Chandannagore Municipal Corporation, deliver possession of Schedule mentioned flat and   to pay a sum of Rs. 14000/- to execute final deed of sale in respect of scheduled flat and to pay a sum of Rs.1786000/- to return back and to pay sum of Rs.180000/- to reimburse the financial losses and to pay a sum of Rs.20000/- for mental agony.

Defense Case:-The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant and theop-1, 2 & 3 have entered into an agreement for sale on 7.3.2015 which was registered before the office of the Additional Register of Assurances III,Kolkata, being no.19030022 for the year 2015 and the same was duly registered in book no.1 volume no.1903-2016 pages from 7179 to 7201 where in it has been agreed by and between the parties that the ops shalldeliver schedule mentioned flat as per the specification mentioned in schedule mentioned of the said agreement forsale with the right to access common portionmentioned in the schedule mentioned of the agreement forsale with in September, 2015 subject to the payment considerationmoney as mentioned in clause 2 of the said agreement for sale.

After registering the same agreement for sale the LIC housing finance issued cheque no.154216 dt.25.02.2016 of HDFC Bank Chinsurah Branch in favour op-1 amounting Rs.800000/- and the matter stated in the second portion of the para no.11 filed by the complainant, are absolutelyfalse.  The original fact is that the said agreement for sale being no.19030022 for the year 2016 was prepared under the supervision of Ld. Advocate appointed by OP-2 but the entire drafting has been made by the ld. Advocate as per the direction and data supplied by the complainant and after reading carefullyand going through all along the drafting and receiving a copy of the same draft, the complainant appeared before the ARAIII Kolkata and put his signature upon the said documentand register the same and in the page no.4 clause no.2 of the said agreement for sale it is written that for the total consideration Rs.1800000/- only out of which the purchaser have already paid sum of Rs.651000/- only as booking money.

 The complainant himself verbally told the op-2 herein that due to sum personal problem of family matter he is not in a position to take delivery of the possession of the said flat for which he has entered into an registered agreement for sale with the ops herein, though the op-2 herein several time requested the complainant clearly the balance due amount of the consideration value amounting Rs.349000/- and other amount for installation of transformer, electricity meter and connection and the price of the extra civil work like concrete bunker, collapsible get in front of the main door of the said flat, difference price of the kitchen and bathroom accessories and fittings which amounting in total Rs.270000/-only and go for execution of final sale deed registration with possession, but the complainant on various pretext avoided the same and the op-2 has no knowledge whether any legal notice send by the complainant through his ld. Advocate on 18.4.2016 by registered post with A.D to him, which was return after several attempts and also about the installment amounting Rs.13336/- paid by the complainant to LIC housing finance and house rent amounting Rs.4000/- per month.  It is also utter lie that the op-2 behaved ruthless with the complainant and straight forward told the complainant that his company that is the op-1 has left the project and also told to forget about what the complainant has already paid in favour of op-1 and the op-2 herein put the complainant strict proof thereof.

The op nos. 1 to 3 have entered into agreement for sale for the purpose of “B” schedule flat for the own residential use of the complainant but out of the consideration value Rs. 18,00,000/- the complainant has paid Rs. 17,86,000/- in favour of op and also he is ready to pay rest of the sum at the time of final registration is false. The op no. 2 herein therefore demand Rs. 3,49,000/- as balance consideration and Rs. 2,70,000/- as additional work etc and interest upon the said amount which become due as per the said agreement for sale and Rs. 20,000/- as litigation cost from the complainant. So, this instant case should be dismissed with cost.

The opposite party No. 3contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the development agreement between the op-3 and the op-1 was executed on 16.12.2015 to develop the property describe in schedule mentioned of the complaint therefore there was no privity of contract of development between the op -3 being the owner and the op-1 being the developer before such execution of development agreement.  Any act on the part of the op-1 and 2 before 16.12.2015 perperting to be an act done in pursuant of a development agreement binding the op-3 is therefore a falsification of fact, none-est and absolves the instant answering op from any responsibility, legal or moral, arising from such act of the op-1 and 2 either with the complainant or with any other third party.

The power of attorney executed by the op-3 in favour of the op-2 only empowered him to transfer the vacant land as described in schedule mentioned of the instant complaint.  It, therefore does not giveany legal sanction to the op-2 to do any act oract beyond the scope of the recitals contemplated in such power of attorney.  Further, the op-1 being a company within the  meaning of the companies act, 1956 is a separate legal entity and any act done by the op-2 acting as a director of the op-1 company cannot fall within the purview of the power of Attorney executed by the op-3 in favour of op-2 and further such acts, if any cannot be said to be acts done forand behalf of op-3 and the op-2 is a greedy and desperate person and has acted beyond this cope of the power of attorney executed in his favour by the op-3 to cause wrongful enrichment on his part and further to cause wrongful loss to the instant op.  The instant op been a patient of progressive Supra Nuclear Palsy was oblivious to the wrongful acts committed by the op-2 and when such acts came to his incapacitated perception the instant op has revoked the power of Attorney executed in favour of op-2 and the same was executed on 6.9.2016 and the same has been registered in Book no IV Cd Volume no 0604-2016, pages 4180 to 4190, being no.060400284 for the year 2016 at the office of the Additional District Sub-Register, Chandannagore and the decease which the instant op is suffering from is a progressive disease without any scope of remission and is day by day limiting the instant op to his bed and alsochallenging the ability of the instantop tomake decisions.  The op -2 has taken advantage of such inclement medicalcondition of the op-3 and thereby duped some intending purchasers and the instant op at large.  If anybody is liable to the claims raised in the complaint, such responsibility vest with the op-1 and 2 and therefore the instant application against the present op is liable tobe dismissed with costs.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant 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 and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 3(a) and 3 (b) filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party nos. 3(a) and 3(b) heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly and the residence of op nos. 2 and 3 are also within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24Aof the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that op no. 1 is a building contractor and promoter.
2. It is also admitted fact that op no. 2 is the director of  op no. 1.
3. There is no controversy over the issue that the op no. 2 entered into a development agreement with op no. 3 on 16.12.2015 to develop the schedule mentioned property.
4. There is no dispute over the issue that the said development cost of this schedule mentioned property is to be paid by op no. 1.
5. It is admitted fact that the said development agreement was registered at the ADSR office, Chandannagore.
6. It is also admitted fact that the said development agreement was entered into the Book no. 1 volume no. 0604-2015 pages from 45277 to 45298 being no.0604 03121 for the year 2015. 
7. There is no controversy over the issue that the op no. 3 also executed one general power of attorney in favour of op no. 2.
8. There is no dispute over the issue that by virtue of the said general power of attorney op no. 3 authorised the op no. 1 for the purpose of loan sanction of the schedule mentioned property and to represent the op nos. 1 and 3 before all Government, Semi Government and all statutory bodies and also to represent before the judicial and quasi judicial bodied.
9. It is admitted fact that by virtue of the said general power of attorney op no. 3 authorised the op no. 2 to execute deed of conveyance on behalf of op no. 3 in favour of intending purchaser.
10. It is also admitted fact that one deed of conservance was executed on behalf of op no. 3 and it was registered before the ADSR, Chandannagore.
11. There is no controversy over the issue that op nos. 1 and 2 obtained the sanctioned building plan in respect of the schedule mentioned property from Chandannagore municipal corporation vide no. D-3/RB/168/2012-2015 dt.08.05.2013.
12. There is no dispute over the issue that thereafter the op nos. 1 and 2 started construction under name and style “Bandhan Housing”.
13. It is admitted fact that the complainant approached to op nos. 1 and 2 for purchasing a flat at the said property.
14. It is also admitted fact that op no. 2 has fixed Rs. 18,00,000/- as consideration price of the schedule mentioned flat.
15. There is no controversy over the issue that the complainant had given advance relating to consideration money amounting to Rs. 6,40,000/- and the said consideration money was paid by way of cash and also by the virtue of cheque.
16. There is no dispute over the issue that the complainant for the purpose of getting financial assistance approached before the LIC Housing Finance.
17. It is admitted fact that the LIC Housing finance agreed to give house building loan to the complainant amounting to Rs. 8,00,000/- and the said money was paid to the op.
18. It is also admitted fact that the complainant has not yet received the delivery of possession of the said flat from the ops.           

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that inspite of making payment of a sum of Rs. 16,46,000/- the ops have not executed and registered sale deed in respect of the schedule mentioned flat and also have not deliver the possession of the same and it is a clear instance of negligence and deficiency of service but on the other hand the ops have taken the defence alibi that the complainant has not yet paid the balance consideration money and so the ops are unable to hand over possession of the said flat and also have not executed the deed of conveyance and for that reason there is no deficiency of service on the part of the ops.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the ops inspite of getting consideration money of Rs. 14,40,000/- have not executed and register the deed of conveyance and also have not handed over the delivery of possession of the said schedule mentioned flat.  Form the evidence on record it further appears that the ops have failed to complete the construction of the said building inspite of expiry of the prescribed time limit. Now under the above noted circumstances the question is whether the complainant is entitled to get back the consideration money of Rs. 14,40,000/- from the ops or not? In this connection it is the settled principle of law that where refund has been claimed due to the faults of the ops, they could neither deduct any amount and they are bound to refund all the amounts received from the intending purchaser. This legal principle has been observed by the Hon’ble Apex Court in the case of Ghaziabad Development Authority vs. R.B. Sharma and it is reported in 2004 (3) CPR 92. Thus, it is crystal clear that the complainant is entitled to get back the entire consideration money of Rs. 14,40,000/- which has been paid to the op nos. 1 and 2 along with interest.

In the result it is accordingly

ordered

that the complaint case being no. 121 of 2016 be and the same is allowed on contest but in part against the op nos. 1 and 2.

It is held that the complainant is entitled to get back Rs. 14,40,000/- along with interest @ Rs. 9% per annum from the date of filing of this case from the ops and ops are directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 10,000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.

            The Final Order will be available in the following website www.confonet.nic.in.