Date of filing – 18.06.2014
Date of final hearing – 11.07.2017
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of an intending purchaser against the developer (Opposite Party No.1), Landowner (Opposite Party No.2) and the Bank from which the complainant obtained loan (Opposite Party No.3) on the allegation of deficiency in services on the part of OP Nos. 1 & 2 in a consumer dispute of housing construction.
In a nutshell, Complainant’s case is that on 16.06.2006 he entered into a registered Agreement for Sale with the opposite party nos. 1 & 2 to purchase of a self-contained flat measuring about 711 sq. ft. of super built up area on the 3nd floor in a building commonly known as ‘Mangaldeep’ and one open undemarcated car parking space on the ground floor together with proportionate share in land at Premises No.64/68/1, Khudiram Bose Sarani, P.S.- Ultadanga, Kolkata – 700037 at a total consideration of Rs.10,30,950/- @ Rs.1,450/- per sq. ft. of the flat + cost of roof garden of Rs.38,000/- + Rs.80,000/- for car parking space aggregating a sum of Rs.11,48,950/-. The complainant took a loan from Bank of Baroda against the mortgage of the flat and on sanctioning loan, OP No.1/developer has received Rs.7,99,160/- directly from the bank and the employer of the complainant i.e. Air India sanctioned Rs.9,00,000/-. The complainant has stated that he has paid the entire consideration amount. With an understanding, however, the OP No.1 initially returned him Rs.2,10,000/-. The complainant states that he got possession of the flat and time without number he requested the OP No.1 to execute the Sale Deed but the OP No.1 has stated that the OP No.2/Landlord is not ready to deliver the flat. Hence, the complainant approached the Ld. District Forum with prayer for certain reliefs including execution and registration of Deed of Conveyance, payment of compensation of Rs.20 lakhs, litigation cost of Rs.10,000/-etc.
The Opposite Party No.1/developer by filing a written version has stated that the complainant took the possession of the subject flat forcefully by breaking the key of the flat in question and enjoying the said flat till date from the date of inception without making full consideration amount to him. He has further stated that he has already paid Rs.2,20,000/- as instalments of loan obtained by the complainant from OP No.3/Bank.
OP No.2/Landowner by filing written version has stated that the OP No.1 did not construct the building in accordance with the plan approved by the Corporation and as such a proceeding was initiated by the Corporation and after hearing an order was passed on 25.03.2008 whereby the special Officer directed to demolish the entire unauthorised construction on the 3rd floor and other portions of the newly constructed building.
OP No.3/Bank by filing a separate written version has articulated that as on 17.09.2015 the outstanding amount against the loan obtained by the complainant comes to Rs.7,87,165/-.
Complainant, OP No.1, OP No.2 and OP No.3 have tendered evidence on affidavit. The parties have given reply against the questionnaire set forth by their adversaries. Besides oral evidence, the parties have relied upon some documentary evidences.
On the basis of the materials available on the record, we shall proceed to discuss how far the complainant has been able to substantiate his case.
Admittedly, OP No.2 is the landowner of a piece of land measuring about 2 cottahs 12 chittaks more or less with brick built structure standing thereon at Premises No.64/68/1, Khudiram Bose Sarani, P.S.- Ultadanga, Kolkata – 700037. On 02.03.2006 the OP No.2 entered into an agreement with OP No.1 for construction of a multi-storied building after demolition of the existing one. The OP No.2 has also executed one Power of Attorney in favour of OP No.1 on the self-same date.
It also remains undisputed that on 06.06.2006 the complainant had entered into an agreement with the OP Nos.1 & 2 to purchase of a flat measuring about 711 sq. ft. of super built up area on the 3nd floor in a building commonly known as ‘Mangaldeep’ and one open undemarcated car parking space on the ground floor together with proportionate share in land at Premises No.64/68/1, Khudiram Bose Sarani, P.S.- Ultadanga, Kolkata – 700037 at a total consideration of Rs.10,30,950/- @ Rs.1,450/- per sq. ft. of the flat + cost of roof garden of Rs.38,000/- + Rs.80,000/- for car parking space aggregating a sum of Rs.11,48,950/-.
The complainant has categorically stated that he has paid the entire consideration amount but the materials on record indicate that on the date of execution of Agreement for Sale, the complainant paid a sum of Rs.1,50,000/- keeping a balance amount of Rs.9,98,950/- out of total consideration of Rs.11,48,950/-. Evidently, the complainant had applied for loan from Bank of Baroda and the OP No.3/Bank sanctioned Rs.2,00,000/- on 13.09.2006, Rs.3,99,580/- on 29.12.2006 and Rs.1,99,580/- on 16.01.2007 totalling Rs.7,99,160/- and the amount was debited from the Bank in the account of Gokul Properties of which OP No.1 is the proprietor. The complainant has failed to show any other document that he has ever made any payment to the OP No.1 towards the consideration of the subject flat or undemarcated garage. In the petition of complaint, the complainant himself stated that the OP No.1 refunded him a sum of Rs.2,10,000/-. It has also come to surface that the OP No.1 has already paid an amount of Rs.2,20,000/- to the loan account of the complainant. Therefore, it becomes quite clear that complainant paid to OP No.1 Rs. 7,99,160/- + Rs.1,50,000/- = Rs.9,49,160/-. The OP No.1 has refunded Rs.2,10,000/- to the complainant + Rs.2,20,000/- to the OP No.3 in the account of the complainant i.e. Rs.4,30,000/-. Therefore, it is evident that after deduction of the said amount of Rs.4,30,000/-, the complainant has paid a sum of Rs.5,19,160/- to the OP No.1. Therefore, if the said amount of s.5,19,160/- is deducted from the total consideration of Rs.11,48,950/-, the complainant is still liable to pay to OP No.1 a sum of Rs.6,29,790/- as balance consideration amount.
The complainant had taken possession of the flat but according to OP No.1, it was taken forcibly. The complainant has failed to produce any possession letter issued by the developer in favour of him.
Ld. Advocate for the landowner/OP No.2 has shown me the sanctioned plan which clearly indicates that in the premises, there will be two parking places of which one each will go in favour of owner as well as developer. In such a situation, I am at a loss to understand how the developer agreed to provide an undemarcated car parking space to the complainant. Ld. Advocate for OP No.2 has also submitted that being frustrated about the conduct of the developer, the Power of Attorney was revoked by them on 20.02.2010. However, he has candidly submitted that they have no objection to execute the Sale Deed in favour of the complainant.
Ld. Advocate for OP No.3 has submitted that the complainant has obtained loan after keeping the property under mortgage and the bank has no concern with the dispute in between the intending purchaser and the developer.
Considering all the above, I am of the view that the complainant is entitled to the reliefs, as prayed for. Since, the complainant is in possession and already paid a part consideration amount, certainly OP Nos. 1 & 2 are under obligation to execute the Sale Deed in favour of the complainant subject to payment of balance consideration of Rs.6,29,790/- by the complainant in favour of OP No.1. As complainant is in possession of the subject flat without payment of entire consideration amount, certainly he did not suffer mental agony or harassment like victim of other cases of same nature, in such a situation I think a compensation of Rs.1,00,000/- in the facts and circumstances will meet the ends of justice. The situation compelled the complainant to lodge the complaint and therefore, the complainant is entitled to litigation cost which I quantify at Rs.10,000/-.
Consequently, the complaint is allowed on contest against OP Nos. 1 & 2 and dismissed against OP No.3. The OP Nos. 1 & 2 are jointly and severally directed to execute the Sale Deed in respect of the property as mentioned in the Second Schedule of the Registered Agreement for Sale dated 06.06.2006 in favour of the complainant within 30 days after payment of Rs.6,29,790/- as balance consideration amount by the complainant in favour of OP No.1. The OP No.1 is also directed to make payment of compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- totalling of Rs.1,10,000/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till compliance.
The Registrar of the Commission is directed to send a copy of this order to the parties free of cost for information and compliance.
