Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the OP nso.4 & 5 being the land owners and possessors of the schedule mentioned property entered into a registered development agreement with general power of attorney dated 18.6.2018 being 1348 registered in ADSR office Serampore, with M/s Jagannath Construction, a partnership Firm, being the OP no.1 represented by its partners being the OP nos.2 & 3, for development by making construction of multi-storied building (G+4) thereon by dismantling the old building therefrom at the cost of OP no.1 and to sale the residential office space to intending purchasers for money consideration and on the strength of said development agreement with general power of attorney, the op -1 through it partners op-2 started construction of the building (G+4) as per building plan sanctioned by the Baidyabati Municipality and the complainant being intended to purchase a residential flat in the said building (G+4) approached OP-2 & 3 who agreed to sell the residential flat measuring covered area about 850 sq. ft more or less and the op-1 represented by the op-2 & 3, op-4 & 5 and the complainant entered into an agreement for sale dated 20.01.2019 in respect of the schedule mentioned flat to sale the same at and for total consideration ofRs.1020000/- and on that date the complainant paid a sum of Rs.612000/- under the said agreement for sale (being 60% of the total consideration) as advance and earnest money out of total consideration of Rs.1020000/- and in the said agreement for sale dated 20.01.2019 it was agreed and declared that balance 40% of the total consideration of Rs.408000/- would be paid by the complainant at the time of delivery of possession of the flat and the sale transaction in respect of schedule mentioned flat would be completed with six months from the date of execution of the agreement for sale.
The developer being the OP 1,2 & 3 failed to complete the construction of the proposed flat in question in habitable condition within stipulated period inspite of repeated request by the complainant. On enquiry the complainant came to know that the proposed flat has not yet completed for habitable condition. The op-2 & 3 are also not allowed the complainant to enter into the building G+4 to inspect supervise and to instruct the internal decorative work as per her choice which the complainant deserves to do so but the op-2 & 3 intentionally, motivatedly and with ill-motive has been doing so to defraud and deprive the complainant in future by saying otherwise. The complainant finding no other alternative sent a letter dated 28.12.2019 through her ld. Advocate to the op-1,2 &3 by registered post with A/Din their proper address as mentioned in the agreement with request to complete the proposed flat in habitable condition and also requested for delivery of possession of the flat by receiving the balance consideration and to make an arrangement for execution and registration of the deed of conveyance but the ops did not pay any heed of requests made by her ld. Advocate rather sent a reply through ld. Advocate dated 4.1.2020 without giving any importance of the agreement for sale dated 20.1.2019 though the complainant was always ready to purchase the flat in question by paying balance consideration money.
The complainant then served another legal notice dated 10.2.2020 through her ld. Advocate to the ops in their proper address by registered post with A/D requesting to complete the flat in question in habitable condition and by way of internal suggestive decorative work of the complainant and to receive the balance consideration money before handing over possession of the flat and make an arrangement for registration of the deed of conveyance fixing a ;suitable date. In reply of the said legal notice dated 10.2.2020 the op through letter dated 19.2.2020 of ld. Advocate described the said agreement for sale as cancelled and denied liability to sale the flat as mentioned in schedule mentioned hereunder.
Complainant filed the complaint petition praying direction upon the opposite party to put the complainant in possession in complete schedule mentioned flat in habitable condition and by way of internal suggestive complete decorative work of the complainant as early within time and to execute and register deed of conveyance in favour of the complainant in time and not to create any obstruction to the complainant and her men to enter into the building G+4 and the proposed schedule mentioned flat for inspection supervision the internal suggestive decorative work and to pay a sum of Rs. 200000/- for harassment, sufferings, mental agony and treatment.
Defense Case:- The OP No. 2 contests the case by filing written version denying inter-alia all the material allegations leveled against them and states that the op no-1 is a partnership firm having its office at 43(25/3/3),K,C, Chatterjee Street, P.O-Baidyabati, P.S-Serampore, Dist-Hooghly, Pin-712222, represented by its two partners op no-2 of 118,N.T Road, P.O-Baidyabati, P.S-Serampore, Dist-Hooghly, Pin-712222 and op-3 of 204(54/P) N.C. Banerjee Road, P.O-Baidyabati, P.S-Serampore, Dist-Hooghly Pin712222.
The op-4 & 5 are the Landowners of the project namely “Jagannath Apartment” at the aforesaid municipal holding with whom the op-1 & 2 entered into a joint venture development agreement cum power of attorney being no.1348 registered in the office of the D.S.R-II, Hooghly on 8.6.2018 so they are being represented by their constituted attorney “M/S Jagannath Construction” i.e. the op no. 1 and the op no. 1 and the op-1 being the constituted attorney as well as the developer in respect of the aforesaid project, entered into an agreement for sale with the petitioner on 20.1.2019 and time limit was the main essence of that agreement as the consideration amount of the flat to be sold was fixed @1200/- per square feet which was quite less than the prevailing market rate. The total consideration amount of the flat was fixed at Rs.1020000/- as the flat was measuring more or less 850 sq.ft. out of which the petitioner advanced an amount of Rs.612000/-. It is pertinent to mention here that there was specific and explicit clauses in the said agreement for sale regarding the tenure, liability, jurisdiction of dispute, forfeiture etc. among which the clause no.4 clearly says that the tenure of the agreement is 6 months starting from the execution of the said agreement and the tenure was 20/01/2019 to 20/7/2019 and it was also stipulated that the possession of the said flat shall be given only after payment of the balance amount of the consideration concerned to the developer by the petitioner. During the tenure, the petitioner only paid Rs.612000/- to the op-3 through there was no specific mention about the detail of such payment regarding its mode in the memo of consideration but the complaint neither paid the balance amount of Rs.408000/- nor made any sort of clear or explicit communication with op -1 or 2 or 3 regarding the balance payment. So as per clause no.4 of the said agreement, this was a clear and deliberate breach on the part of the petitioner and from the clause no.5 of the said agreement clearly states that the execution of the conveyance deed and its registration solely depends upon the full payment of the consideration amount by the petitioner to the developer. The petitioner has willfully infringed the condition too by not paying the balance amount. From the clause 15 of the said agreement transparently enumerates the forfeiture policy by way of liquidated damage as well as the cancellation and refund policy. As per this clause, failure of payment in agreed time by the purchaser (the petitioner herein) would attract forfeiture of 10% of the advanced payment along with loss of right over the said flat and cancellation of the said agreement as well as refund of the balance of earnest money after such deduction. The petitioner has caused several breaches of various clauses of the said agreement and since there was no proper communication from the part of the petitioner regarding her said breach towards purchase of the said flat and since there was no renewal provision in the said agreement, the developer had no other way but to treat the said agreement as cancelled and the developer acted legally but after a long gap of 5 months from the date of expiry of the said agreement, the petitioner suddenly sent a legal notice dt. 28.12.2019 to the op no. 1 by stating that she was ready to pay the balance consideration amount to have the registration process of the said flat and its possession. In her letter the petitioner also falsely alleged that the op no. 1 was delaying the matter in completing the said flat in habitable condition. She also tried to force the op no. 1 in her letter to fix a date of registration and possession of the said flat within 7 days. It was only this legal notice in which for the first time, she mentioned about paying the balance amount in an explicit way and in turn the op no. 1 replied the said legal notice through its Attorney dt. 4.1.2020 and clearly mentioned about the conditional clause being Clause no. (15) and its tenure and forfeiture policy and asked the op to collect her earnest money after such deduction as is concerned and not to raise any illegal claim about the flat and also intimated her about the expiration of the said agreement and immediately after receiving the said reply, the petitioner’s husband came to the op nos. 2 and 3 at their garage at Chawk Bagdipara, Baidyabati Hooghly without paying any heed to the aforesaid reply of the legal notice sent by her, instead again sent another legal notice even after 2 months making the same false allegation and repeated her illegal demand once again to purchase the flat. In reply op no. 1 again sent a letter through its Attorney clearly mentioning the concerned Clauses of the said Agreement being Clause no. (4), (5) & (15) which were adequately sufficiently to interpret the simple condition of cancellation of the Agreement if the balance amount stood unpaid by the petitioner within the stipulated period. Though the op no. 1 was kind enough on the question of humanity as it waived the aforesaid forfeiture of 10% on the earnest amount paid by the petitioner and was ready to return the exact amount of Rs. 6,12,000/- but the petitioner intentionally did not receive the same and has been trying to make illegal gain against the ops and lastly came before the ld. Court with some false pleas. So the instant case is liable to be rejected.
The opposite party Nos. 4 and 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that they are joint owners of the schedule mentioned property I.e. All that piece and parcel of Bastu land measuring an area of 03 cottah 04 chattak 20 sq.ft more or less comprised in R.S plot no.327 under R.S. Khatian No.700 corresponding to L.R plot no.311 under L.R Khatian no.439 & 1674, lying at Mouza-Baidyabati, J.L.no.5 Municipal Holdingno.43(25/3/3) & 45(25/3/2). K.C Chatterjee street, Baidyabati, ward no.16 under Baidyabati, Municipality, ADSR Serampore and police station Serampore, Dist-Hooghly, Pin-712222 and answering op number 4&5 states that considering the dilapidated condition and financial condition, had contacted the said op no.1 the developer company being represented by OP -2&3 to develop and make construction of flats over the said schedule mentioned property abiding by the terms and conditions as agreed between them and the answering op number 4&5 further states that the op -4&5 in good faith signed a development agreement and power of attorney with op -1 represented by op-2&3, and registered the same before the office of the DSR-II, Hooghly on 8.6.2018 and answering op-4 & 5 thereafter states that according to the development agreement it was agreed between op-4&5 and op-1 that out of the proposed fully constructed structure by the developer, the land owner shall be provided an area or flat 2000 sq. ft area and this shall be mentioned as the owner’s allocation, and it was further mentioned therein that the land owner or the op-4 & 5 shall never claim or demand any amount, flat from the developers allocation or any other facilities from the developer / op-1 and the answering op-4 & 5 further states that it was also agreed in the said registered power of attorney that the developers shall have all the right, power and authority to sell and enter into agreement for sale from its developer’s allocated area of proposed flats etc to be constructed together with the proportionate share of land underneath of the proposed building to any purchaser of their choice and also receive and advance consideration money from the prospective purchaser in lieu of it and the answering op-4&5 further states the owners were abiding by the development agreement wherein it was mentioned that the powers shall always be cooperating with the developers in all matters relating to the developer’s allocated share of the proposed building and the answering op -4 & 5 states that theop-4 & 5 in good faith had given complete power totheop-1 represented by op-2 &3 to enter into any agreement for sale with any purchaser, proposing to purchase flat out of the developer’s allocation and had also mentioned the same under the said power of attorney executed between op-4&5 and op-1 and the answering op-4&5 had never in person executed any agreement with the complainant nor even knows the complainant in person .
The entire selling, lending and accepting of consideration money from the complainant was completely handled by op-1,2 & 3 without any knowledge of the op-4&5 and OP -4& 5 has seen the construction of the proposed building being carried out and has got no further knowledge about any other matters as mentioned in this complaint and the complainant is not a consumer under op-4&5 and no legal notice has been received or sent from and on behalf of theop-4&5 to the complainant.
The answering op-4 & 5 is not guilty of any wrong doing towards the petitioner. The op-4 & 5 have in no way committed any act which can be termed as unfair trade practice. The op -4 at no point of time failed to provide proper service.
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 O.P. Nos. 1, 2, 4 and 5 have filed separate evidence on affidavit which reiterates the averments of the written version.
This case has been heard ex parte against Op no. 3 by virtue of this order.
Argument highlighted by the ld. Lawyers of the parties
Complainant and answering opposite parties have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.
Issue no.2:
Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
One tripartite agreement was made by and between the complainant , the owners and the developers on 20/01/2019 with regard to the flat in question and as per such agreement for sale the sale transaction shall be completed within six months from the date of execution of the agreement for sale , so for the dead line for the completion of the flat was exhausted on 20/07/2019.the complainant intended to purchase the flat in question for which the consideration amount was fixed and agreed by and between the parties as Rs. 10,20,000/ out of which the complainant had already paid as Rs. 6,12,000/ as advance on 20/01/2019 to OP 2 & 3 ,and as per the said agreement for sale it was agreed that the balance amount of Rs. 4,08,000/ would be paid by the complainant at the time of delivery of possession. As per submission of the complainant the OP nos. 2 & 3 never allowed the complainant to inspect, supervise the internal work of the flat in question and as the complainant was desirous to purchase the said flat ,even after the lapse of six month time period for agreement for sale complainant sent a letter on 28/12/19 through her Ld. Advocate to complete the said flat and execute and register the same in favour of the complainant and subsequently another letter was sent by the Ld. Advocate of the complainant dated 10/2/20 in reply to such letter the OPs said that the agreement for sale was cancelled. Even in the written version also the OP no 2 has categorically stated that “time limit was the main was the main essence of that agreement as the consideration amount of the flat to be sold was fixed @1200/- per square feet which was quite less than the prevailing market rate. The total consideration amount of the flat was fixed at Rs. 1020000/- as the flat was measuring more or less 850 sq.ft. out of which the petitioner advanced an amount of Rs.612000/-. It is pertinent to mention here that there was specific and explicit clauses in the said agreement for sale regarding the tenure, liability, jurisdiction of dispute, forfeiture etc. among which the clause no.4 clearly says that the tenure of the agreement is 6 months starting from the execution of the said agreement and the tenure was 20/01/2019 to 20/7/2019 and it was also stipulated that the possession of the said flat shall be given only after payment of the balance amount of the consideration concerned to the developer by the petitioner. During the tenure, the petitioner only paid Rs.612000/- to the op-3 through there was no specific mention about the detail of such payment regarding its mode in the memo of consideration but the complaint neither paid the balance amount of Rs.408000/- nor made any sort of clear or explicit communication with op -1 or 2 or 3 regarding the balance payment. So as per clause no.4 of the said agreement, this was a clear and deliberate breach on the part of the petitioner”.
Admittedly, the petitioner advanced an amount of Rs. 6,12,000/ for the said flat. As per version of OP 2 the total consideration amount of the flat was fixed at Rs.1020000/- as the flat was measuring more or less 850 sq.ft. out of which the petitioner advanced an amount of Rs.612000/- only. The OPs are putting emphasis on clause 4,5 and 15 of the said agreement for sale. But if we consider clause 9 and 12 of the said agreement for sale, Clause 9 runs as: “that if the Purchaser in spite of readiness and willingness fails to purchase the schedule flat within the aforesaid time the Owner and the Developer fail or neglect to execute and register and also refuse to execute and register proper instrument of transfer in that case purchaser has every liberty to file a suit for Specific Performance of contract before the court of competent jurisdiction and after getting decree shall put for execution and registration proper instrument of transfer through Court for the “B” schedule flat and in that case Developer shall be liable for all costs” and Clause 12 runs as: “that if the Developer is not be able to give possession of the said flat to the Purchaser on account of any reasonable cause, the Purchaser shall be entitled damages and shall be entitled to receive back the money, paid by him/ her to the owner towards the consideration of the said flat together with Bank interest”.
Here though six months have elapsed , but once the petitioner has paid an advance amount of Rs. 6,12,000/ for purchase of the said flat it shows her readiness and eagerness to buy the same for which she served letter for two times and expressed her willingness to pay the residue amount to get the flat registered. But the OP 1, 2 & 3 showed their negligence in handing over the said flat to the complainant.
The OP 2 time and again reiterated that as six month has elapsed and the complainant did not pay the balance amount and since there was no renewal provision in the said agreement, the Developer had no other way but to treat the said agreement as cancelled. Here the Hon’ble Apex court in cases of CHAND RANI VS KAMAL RANI, 1993(1) SCC 519 and GOMATHINAYAGAM PILLAI VS PALANISWAMI NADAR, 1967(1) SCR 227, has held that fixation of the period within which the contract has to be performed, does not make the stipulation as to time the essence of contract and when a contract relates to a sale of immovable property, it will normally be presumed that time is not the essence of the contract.
The OP nos. 1,2,3 took the plea that the time of six months has elapsed and complainant did not pay the balance amount for which they cancelled the agreement but no single scrap of paper has been produced by the OPs to show that the flat was completed within the stipulated time of six months.
So, there is deficiency in service and the developer has adopted unfair trade practice, complainant is entitled to get the possession of the said flat after due registration and execution of sale deed by the ops along with compensation.
OP nos. 4 & 5 are the land owners and the agreement foe sale was a tripartite agreement in between the land owners, the developers and the complainant and they are the confirming parties with regard to registration and execution of the sale deed.
Both the issues are thus disposed of.
In the result it is accordingly
ordered
that the complaint case being no. 49 of 2020 be and the same is decreed on contest against the ops.
The ops are directed to execute and register deed of conveyance and also to deliver actual possession after getting the balance consideration money within 2 months from date otherwise complainant is given liberty to execute this order as per law.
The op nos. 1 to 3 are directed to pay Rs. 50,000/- as compensation for harassment, suffering and mental agony and Rs. 10,000/- as litigation cost within 60 days from date to the complainant otherwise complainant is given liberty to execute this order as per law.
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.
