DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.- 196/2011
Date of Filing: Date of Admission Date of Disposal:
14.07.2011 27.07.2011 18.08.2015
PETITIONER : =Vs.= O.Ps.
Sri Subrata Goswami, 1. M/s. Elan, a sole proprietorship Co
S/o. Sri Baidya Nath Goswami, G-7, Ashutosh Sarani(Rabindrapally)
AG-1, Gr. Floor, Pally Shree Jyangra P.S. Rajarhat, P.O. Jyangra, Kol-59.
Chowmatha, P.O. Deshbandhunagar, Dist- North 24 Pgs.
P.S. Baguiati, Kol-59, Dist- 24 Pgs(N). 2. Sri Partha Bakshit,
S/o. Late Tarapad Rakshit,
91/2, Rafi Ahmed Kidwai Road,
P.O.Bangur Avenue, P.S. Dum Dum,
Kol-55, Dist- North 24 Pgs.
3. Sri Prabir Ghosh.
4. Sri Samir Ghosh,
Jyangra, P.O. Deshbandhunagar,
P.S. Rajarhat, Kol-59, North 24 Pgs.
P R E S E N T :- Smt. Bandana Roy……………President
:- Shri Rabideb Mukhopadhyoy …Member
J U D G E M E N T
The case of the complainant, in short, is that the O.P. No.1 is a construction company and the O.P. No.2 is the sole proprietor of the said company who is engaged in the business of promoting and developing the land for the purpose of providing residential flats and commercial space to the intending purchasers. The complainant stated that the O. P. Nos.3 and 4 are the land owners. The developers entered into a development agreement with the Land Owners followed by a general power of attorney. The O.Ps stated that the complainant entered into agreement for sale on 25.06.09 for purchase of flat upon the agreed terms and conditions. The complainant in all paid Rs. 2,50,000/- towards the consideration money and before the IDBI Bank for house building loan. On 25.06.09 the O.Ps delivered the possession of the flat, but the registration of the deed of conveyance has not been made. For the reason, the complaint was filed before the Ld. District Forum.
The O.P. Nos.3 and 4 have contested the case by way of filing written version.
The O.Ps stated that they are the land owners and the O.P. Nos. 1 and 2 are the developer of the land with certain terms and conditions as stipulated with the joint venture agreement dated 23.12.05 in and between the land owners and the developers. The said agreement is reciprocals.
The O.Ps stated that the period of construction is 24th months from the date of sanctioned building plan being No. 175/07/08 dated 12.09.08 and the owner shall get the deliver of the owner’s allocation as appeared in clause 9 of the said agreement. The developer undertakes to hand over the allotted portions to the first party after completions of the building works. It is specific made clear that just after completion of the total building the
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developer shall hand over the allotted portion as described in the complaint. But the land owners have not yet got possession of the said allocation and the O.Ps has not yet completed the said development works. Hence they prayed for dismissal of the case.
It may be pertinent to mention here that the case was originally decreed on contest on 06.11.12 by the previous Forum. Against that order, the O.Ps preferred an appeal before the State Commission. The appeal was allowed by the State Commission and the judgement of this Forum was set aside and the case was sent back on remand to this Forum with the direction for giving opportunity to parties by putting questionnaire followed by filing of reply. Thereafter, this Forum will decide the case on merit according to law. Accordingly, the parties filed questionnaire and reply.
Admittedly, an agreement was executed between the parties on 25.06.09 for sale of one of the flats in the multistoried building i.e. flat No.2(a) measuring approximate super built up area 725 Sq.ft on the first floor having Municipal Holding No. RGM/9/2987 Jyangra Chowmatha, P.O. Jhangra, P.S. Rajarhat, Kol-59 and the description of the flat as mentioned in the schedule ‘B’ of the agreement for sale dated 25.06.09.
We have perused the agreement there is payment schedule ‘D’to sell and the flat and same must be paid by seven instalments and total consideration of the flat was Rs.8,00,000/- but so far the complainant paid only Rs. 2,50,000/- upto 25.06.09. As per the agreement dated 25.06.09 delivery of possession would be made within 24 months from the date of execution of the agreement to sale subject to purchaser making punctual payments and observing and complying the terms and conditions. The complainant tried to convince this Forum that O.P.Nos. 1 and 2 did not render all cooperation for obtaining any house building loan from the banks through the complainant.
Ld. Lawyer for the O.P. Nos. 1 and 2 relied on the decision reported in 2014 CPJ 26 (Del) wherein it has been held ‘that Housing-Cancellation of allotment-Breach of agreement- Forfeiture of earnest money- Alleged deficiency in service- Unfair trade practice- Complainants have made default in payment and interest and justice will be better served if O.P- company makes refund of entire deposited amount without making any deduction whatsoever.
O.P. No.1 further relied on decision reported in 2013 (2) CPJ 99 (NC) wherein it has been held that the National Consumer Disputes Redressal Commission, New Delhi, C.P.Act, 1986 Sections 2(1) (g) and 21(a) (ii) Cancellation of allotment of flat –On ground default in payment of balance
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consideration –Negligence-Deficiency of service- Complaint partly allowed by – State Commission-Order challenged by appeals –Held, appellant has defaulted in making payments in terms of agreement executed between parties- Documents required by appellant were sent to her by respondent- Thus, respondent was justified in cancelling allotment-Therefore, Respondent is rightly directed to refund deposited amount with interest- Both appeals dismissed- Appeal dismissed.
The O.P. No. 1 further relied on decision reported in 2015(2) CPR 190 (NC) National Consumer Disputes Redressal Commission New Delhi- Agreement to sell – Complainant failed to perform his contractual obligation of making payment of the balance amount of L 18,00,000/- to the petitioner and he went to the extent of postponing the said payment on wholly untenable grounds such as the plot being mortgaged with the society.
Ld. Lawyer for the O.P. Nos. 3 and 4 argued that after completion of the construction except some incomplete or unfinished works of the building as per sanction building plan, the owner’s allocation of the said multistoried building has taken by the O.P. Nos. 3 and 4 landowners into his custody and possession as per terms and conditions of the agreement. The land owners the O.P. Nos. 3 and 4 got no liability upon the complainant and the complainant is the stranger to the land owners in terms of the said reciprocal terms of the said joint venture agreement and to that the complainant got no
cause of action as well hired no service from the landowners till the completion of said reciprocal terms on the part of the O.P. Nos. 1 and 2. The dispute is related between the complainant and O.P. Nos. 1 and 2. So, the case should be dismissed against O.P. Nos. 3 and 4.
We have already mentioned that the complainant has already got delivery of physical possession of the flat on 25.06.09 as per para 11 of the complaint. So, it appears that the complainant was in possession of the flat from 2009 till today for 6 years. So, at this stage this Forum cannot oust the complainant from the possession of the flat.
It may be mentioned that on 03.12.12 vide order No.21 the complainant prayed for accepting the bank draft of Rs. 7,07,681/- drawn at SBI ADB, Itachanda and this Forum accepted the same and hence it appears that the complainant has deposited the balance consideration money in this Forum on 03.12.12 after passing on o3.12.12 after passing of the judgement.
In the circumstances, after considering all the facts of questionnaire by the O.P. Nos. 1 and 2 and reply by the complainant, we are of the view that the complainant is entitled to get the relief in this case.
Hence
Ordered,
that the complaint be and the same is allowed on contest against all the O.Ps.
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The O.P. Nos. 1 and 2 will withdraw the amount deposited in this Forum as balance consideration money.
The O.P.s are jointly and severally directed to execute and register the deed of sale in respect of ‘B’ schedule flat within one month from the date of this order, failing which the complainant is given libery to execute and registered the deed through this Forum.
The O.Ps are also directed to pay the litigation cost of Rs. 5,000/- to the complainant within one month from the date of this order, failing which OPs shall have to pay sum of Rs 200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated and corrected by me.
