This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants, Arup Ratan Biswas and Smt. Namita Biswas.

The case of the complainants’ in short is that the petitioners along with their daughter entered into an agreement for sale with the opposite party No.1&2 being owners/developers and as such vendors to purchase the flat mentioned in the schedule as on 26.7.2013. Subsequently a tripartite agreement for housing loan was entered into between the petitioners and the opposite party No.1 as builder and LIC Housing Finance Ltd. as the petitioners availed of loan facility from LIC Housing Finance Ltd. On 10.9.2014 an agreement was registered between the petitioners and the opposite party No.1 & 2 for sale of the flat. In the said agreement it was mentioned that the petitioners was to make purchase of the flat in the schedule mentioned area for a total consideration of Rs.16,00,000/- and out of the same the opposite party received Rs.13,00,000/- by way of seven cheques. In the said agreement it was also mentioned the possession of the flat would be handed over within 18 months from the date of agreement.

That on 10.9.2014 the petitioners made an agreement with the opposite party No.1 & 2 for sale of a car parking space in the ground floor of the building.  It be mentioned here that it was agreed that petitioners will pay Rs.16,00,000/- in total for the said flat and the car parking space.

On 3.10.2015 the petitioners received a notice from the opposite party No.1 stating the fact that opposite party wanted to deliver the possession of the flat to the petitioners by payment of balance consideration money of Rs.3,00,000/-.  In the said notice it was also stated that cheque No.819865 dated 25.12.2013 amounting to Rs.50,000/-, cheque No.925074 dated 21.8.2014 amounting to Rs.1,50,000/- and cheque No.925075 dated 21.8.2014 amounting to Rs.1,50,000/- i.e. total Rs.3,50,000/- was not received by the opposite party No.1 and demanded Rs.6,50,000/- from the petitioners, otherwise  threatened to cancel and rescind the agreement by reimbursing Rs.7,60,000/-. The petitioners submit that opposite party has no legal authority to rescind the agreement. The petitioners also stated that they paid Rs.13,00,000/- to the opposite party and opposite party No.1 or its agent have encashed the said sum of Rs.13,00,000/-.  The demand for payment of Rs.3,50,000/- was illegal.

On 14.11.2015 the petitioners sent a notice through their advocate to the opposite party No.1 informing that the above mentioned three cheque were duly handed over to Tapan Kumar Das, the representative/agent of the opposite party No.1 at the relevant point of time which was well known by the opposite party No.1.  In this notice the petitioners requested the opposite party to withdraw the notice dated 3.10.2015 and to accept the balance consideration money of Rs.3,00,000/- and complete the process of registration of deed of sale.

That on 16.3.2016 the opposite party No.1 through its Advocate again sent a notice to the advocate of the petitioners and cancelled, terminated and revoked agreement dated 26.7.2013 read with cancellation of the subsequent agreement for sales dated 10.9.2014 and also alleged that the petitioners deliberately failed, neglected and avoided to perform the above mentioned agreement and that the opposite party No.1 sent amongst other reply dated 5.12.2015 as against the reply dated 14.11.2015 mentioned above in which the opposite party No.1 accepted the request of the petitioners and granted time till 25.12.2015 to comply terms and conditions of payment but as it was not paid, so the agreement stood cancelled.

That the petitioners submit that the said agreement for sale would suffice that the opposite party No.1 cannot rescind and cancel the contract. The bulk of the consideration money i.e.Rs.13,00,000/- out of total consideration money of Rs.16,00,000/- has been paid. The act and conduct of the petitioners would suffice that they are at all points of time ready and willing to pay the balance consideration money of Rs.3,00,000/-. The opposite party No.1 and 2 is restraining from completing the act of registration. 

On 3.5.2016 the petitioners again received a letter dated 27.4.2016 from the side of the opposite party No.1 asking them to make payment of Rs.7,96,250/- to ensure registration of the property. Finding no other alternative the petitioners filed this case before this Forum with a prayer to direct the opposite party No.1 & 2 to execute and register the deed of sale of the property mentioned in the schedule, to pay Rs.2,00,000/- towards compensation and to pay litigation cost.

The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against it. This opposite party submits that they constructed the building and has given notice to the complainant to pay balance amount and take possession of the said flat No.202 mentioned in the agreement for sale dated 26.7.2013 and agreement for sale dated 10.9.2014. The opponent further states that as per the agreement for sale the complainant failed to pay balance consideration amount of Rs.6,50,000/- to the opposite party No.1 and hence it was not registered for which the opponent cannot be held responsible and therefore the opponent No.1 sent legal notice dated 3.10.2015 to the complainant for paying balance consideration amount of Rs.6,50,000/- along with interest further amount of Rs.68,250/- being interest calculated at 18%  per annum from February 2015 onwards and take possession of the said flat.  The complainant failed to pay abovementioned amount till date.  It seems that complainant had no interest to pay the consideration amount and get the said agreement registered.  Thus the opposite party No.1 cannot be held responsible for not getting registered the agreement and to pay any compensation as is claimed by the complainant in the present complaint.  Thus, there is not any kind of deficiency of service on the part of the opposite party No.1 as alleged by the complainant in the present complaint petition.

The opposite party No.2 also contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party stated that opponent No.1 is a duly registered partnership firm and the opposite party No.2 was the partner of the opposite party No.1 firm and the opposite party No.1 & 2 registered Retirement Cum Reconstitution Deed on 22.12.2014. Therefore, the opposite party No.2 is no more partner of the opposite party No.1 firm and also the said fact is admitted by the opposite party No.1. The opposite party No.2 further submitted that complainant had no cause of action against him and ought not to have impleaded him in this complaint and if two separate suits were to be instituted by the complainant, then no common question of law or fact would arise due to the reasons set out herein above. In any event this opposite party No.2 has no interest in any of the relief claimed by the complainant and therefore, it is respectfully prayed that complaint be forthwith dismissed against opposite party No.2.

The opposite party No.2 further submits that this opposite party has already been retired by Retirement Cum Reconstitution Deed 22.12.2014 registered at the Registrar of Firm State of Maharashtra and as such he is not a necessary party and moreover admitted position that Partner No.2, Mrs. Shukla Das had been admitted as Partner with effect from 22.12.2014 and question of dissolution of Partnership does not arise at all when one partner had already taken retirement and the publication given in Anandabazar Patrika, Kolkata edition on 10.1.2015 and also the Times of India, Kolkata edition on 26.1.2015.  The opposite party No.1 has taken all the responsibility and liability of the opposite party No.2 and this fact is admitted by the opposite party No.1 in his written version and therefore this Hon’ble Forum be pleased to remove/delete the name of the opposite party No.2 in this present proceeding.

The opposite party No.3 contested the case by filing written version  and submits that a tripartite agreement for housing loan was entered into between the petitioners as borrower, the opposite party No.1 as builder and the petitioners availed of loan facility for the flat mentioned in the schedule from LIC Housing Finance Ltd i.e the opposite party No.4.  That on 10.9.2014 a registered agreement for sale was entered into between the petitioners and the opposite party No.1 & 2 pertaining to the sale of the flat. That on 10.9.2014 the petitioner and the opposite party No.1 & 2 again entered into an agreement for sale with regard to a car parking space in the ground floor of the apartment and described in detail in the schedule of the petition of complaint.  It be mentioned herein that it was agreed that the petitioners herewith will pay Rs.16,00,000/- only in total for the said flat and the car parking space.  That the electric connection in the flat mentioned in the schedule of the petition of complaint stands in the name of petitioner No.2 Smt.Namita Biswas and the petitioners have to pay the electricity bill month by month without enjoying the property.  Hence, the case.

 Both sides filed evidence on affidavit and written notes of argument which are taken into consideration while passing final order. 

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Shri Arup Ratan Biswas & Smt. Namita Biswas area ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainants?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Shri Arup Ratan Biswas & Smt. Namita Biswas are ‘Consumers’ of the opposite party?

From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein are the consumers of the opposite party, as the complainants being the intending purchasers of flat from the opposite party No.1&2 and took loan from the opposite party no.4 following the terms and conditions of loan agreement. So, they are entitled to get service from the opposite party as consumers.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainants and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.18,00,000/- as compensation for mental agony and value of the flat ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?

 The case of the complainants is that they along with their daughter entered into an agreement for sale with the opposite party No.1&2 to purchase a flat on 26.7.2013 and also a tripartite agreement for housing loan was entered into between the complainants as borrower, the opposite party no.1 as builder and LIC HOUSING FINANCE LIMITED opposite party No.4 is the financier. That on 10.09.2014 a registered agreement for sale was entered into between the complainants and the opposite party No.1 & 2 pertaining to the sale of the flat. The total consideration was 16,00,000/- only.  Out of which a sum of Rs.13,00,000/- has been paid by the complainants and the opposite party No.1 received the same by way of seven cheques on the same date there was also another agreement for sale executed in between the parties for purchasing a car parking space. The opposite party No.1 through their advocate Mr.K.V.Singh served a notice dated 3.10.2015 upon the complainants to hand over the possession of the flat on payment of balance consideration of Rs.3,00,000/-. But in the body of the said letter the opposite party No.1 mentioned in the agreement for sale dated 10.9.2014 and acknowledged herein that the opposite party No.1 have received seven cheques but actual three cheques have not been received by the opposite party No.1 and demanded Rs.6,50,000/- only from the complainants otherwise threatened to cancel the agreement by reimbursing Rs.7,60,000/-. That on 14.11.2015 the petitioner through their Ld. Advocate Mr. Kinjal Kr. Baral informed that the abovementioned three cheques were duly handed over to Sri Tapan Kumar Das, the representative/agent of the opposite party No.1 at the relevant point of time which was well within the knowledge of the opposite party No.1 & 2. In the said reply the factum of balance consideration of Rs.6,50,000/- was denied and it was further mentioned to withdraw the notice dated 3.10.2015 mentioned above and to accept the balance consideration money of Rs.3,00,000/- only. Again on 16.3.2016 the opposite party No.1 through his advocate Mr. K.V. Singh again served a notice to the advocate of the petitioner regarding the cancellation or termination of agreement if the complainants deliberately failed, neglected and avoided to perform as per agreement. Then the Advocate’s of the complainant served reply stating to withdraw the cancellation of agreement and asked for registration and handing over the possession after taking balance consideration money. Then the opposite party No.1 served another letter dated 27.4.2016 asking to pay a sum of Rs.7,96,250/- to ensure registration of the property. Being aggrieved the complainants filed the instant complaint before this Forum praying directions upon the opposite party for deficiency of service.

The opposite party No.1 by filing written version denied the allegations and averred that the complainants have to pay balance sum on the purported agreement. The answering opposite party further states that the cheques referred to had not been received by opposite party No.1 and acknowledgment has been granted only to facilitate advancement of loan to the complainant. The complainant is bound to prove that opposite party No.1 received the amount mentioned in those cheques by furnishing proper statements of account. The said cheques amounting to Rs.3,50,000/- were not handed over to him on the pretext that some building work was going on and the complainants assured to clear the same on getting possession and final registration of the sale deed. The answering opposite party also admitted that only amount of Rs.9,50,000/- by cheques was received and admittedly the last three cheques have not been encashed by him as they were never handed over to him and the complainant will not be able to show that any direction was given by the firm to hand over those cheques to one Tapan Kumar Das.  It is also asserted that the opposite party firm was all along ready and willing to execute and registered the sale deed of the contractual property accepting the entire due consideration of Rs.6,50,000/-. As the complainant made delay for which they are bound to pay the interest.  So, letter has served upon them to pay balance consideration amount along with interest but the complainants did not pay heed and took no steps for getting the property registered. So, he has no alternative but to cancel the agreement. The answering opposite party further stated that the complainants by cheating him got electricity in their name since they were not handed over the possession of the flat.  As such this opposite party has taken necessary action to transfer the meter in his name.

 In his written version the opposite party No.2 took plea that he should not made a party in the instant case as he has retired from the partnership firm being the opposite party No.1 and left all his liabilities and assets and he already circulated through the news paper edition regarding his retirement from the disputed partnership firm.  So, if there are any relief of the complainants from the opposite party No.1 i.e. the partners of the firm.

Opposite party No.3 being the proforma defendant by filing written version took plea that the opposite party No.1 & 2 entered into an agreement with her but they failed to provide proper service to the complainants and the complainants have suffered a lot due to acts/ omissions of the opposite party No.1 & 2.

The complainants argued that the land was purchased in the name of the opposite party No.2 and Tapas Kumar Das in their individual capacity.  The LR record of rights still stands in the name of the opposite party No.2 and Tapas Kumar Das. Rent is being paid in the same name. The land has been mutated with the Serampore Municipality in the name of individual owners. The opposite party No.1 also tried to change the existing electric meter standing in the name of the complainant No.2 in the flat in question dubiously. The matter was also intimated to the electricity supply corporation and this Forum. The Ld. Forum vide its order directed the CESC not to change the meter standing in the name of Namita Biswas, one of the complainants.  The complainants further submitted that the agreement for sale executed on 10.9.2014 and registered in the office of the ADSR, Serampore wherein the complainants are purchasers and opposite party No.1 represented by its partners, Andrew Francis Monterio and Tapas Kumar Das as owners/developers/vendors. In the memo of consideration it has been clearly mentioned a sum of Rs.13,00,000/-by way of seven cheques have been handed over by the complainants and received by the opposite party No.1 as per consideration out of total consideration of Rs.16,00,000/- only. A registered document cannot be contradicted, varied, added to or subtracted from its terms.  It is also argued by the complainants that Mr. K.V. Singh Ld. Advocate on behalf of the opposite party No.1 sent a notice dated 3.2.2015 to Tapan Kumar Das alleging that he was associated with some illegal acts and Mr. Tapan Kumar Das has condoned the acts and has amicably settled the issue.  But said Tapan Kumar Das called upon to furnish the full, fair and clear account of the amounts received by him from his client as well as from the prospective flat purchasers from whom he has received the balance payment in respect of flat No.301, 302 & 405 and also to complete the remaining work for which he has taken the money from the clients.  The flat in question relates to flat No.202 and a car parking space but nothing has been mentioned in the above notice dated 03.2.2015 about the properties concerning the complainants. The letter dated 03.2.2015 by Ld. Advocate K.V. Singh by Tapan Kumar Das nothing with regard to the three cheques were mentioned. Thus it is crystal clear that any point of time no question arose regarding non-receipt of the three cheques in question. The plea taken by the opposite party No.1 regarding no-receipt of three cheques was firstly taken vide notice dated 3.10.2015 long after more than a year of execution of the agreement for sale and long after eight months from the notice dated 3.2.2015. So, it is nothing but an afterthought and the plea to make a wrongful and illegal gain at the cost of the complainants. Lastly Ld. Advocate Kinjal Kumar Baral on behalf of the complainants have categorically answered the question to Tapas Kumar Das that Tapan Kumar Das being the representative of the opposite party No.1 was handed over the three cheques on the advice of the opposite party No.2 the then partner of the opposite party No.1 partnership firm.  The opposite party No.2 has not denied the contents of the letter dated 14.11.2015 issued by Ld. Advocate Kinjal Kumar Baral to Advocate K.V. Singh to the extent that on his advice and direction of Mr. Andrew Francis Monterio the opposite party No.2 herein and the then partner of the opposite party No.1 partnership firm, the three cheques were handed over to Sri Tapan Kumar Das.The alleged dispute between principal/ opposite party No.1&2 and the agent/representative Sri Tapan Kumar Das are the dispute between principal and the agent and the complainants have no locus-standi in the dispute nor Sri Tapan Kumar Das has any locus-standi in the dispute being adjudicated in this case. Presence of Sri Tapan Kumar Das as a party is not necessary to adjudicate the instant case and as such the case does not suffer from non-joinder of necessary parties. The complainants are consumers under opposite party No.1 & 2 and they have paid huge money to the opposite party No.1 & 2, now they have been suffering a lot due to act or omission on the part of opposite party No.1 & 2.  So, they are liable for committing unfair trade practice and deficiency of service.

After hearing the arguments, perusing the case records & documents it is crystal clear that the complainant entered into registered agreement with the opposite party on 10.9.2014 to purchase a residential flat as stated in the schedule (B) of the agreement measuring 1003 sq ft (including 25% super built up area), being flat No.202 on the second floor of the building & a parking space on the ground floor at 19/B, ward No.17 of Serampore Municipality, Jannagar Road, P.O.- Mahesh, P.S.- Serampore, Dist.- Hooghly by paying a sum of Rs. 13,00,000/- in total through 7 cheques issued on different dates in the year 2013 &2014. The opposite party No.1 received those cheques from the purchasers as per memo of consideration page-13 of the agreement for sale. The value of the flat fixed a sum of Rs.16,00,000/- in total out of which the complainant paid a sum of Rs.13,00,000/- in total within the date of agreement. Dispute cropped up in between the opposite party No.1 and the complainants when the complainants wanted to get his flat delivered, executed & registered by deed of conveyance by paying the balance consideration money amounting to Rs.3,00,000/- but the opposite party no.1 demanded a sum of balance consideration money of Rs.6,50,000/-instead of Rs.3,00,000/- as per agreement. The opposite party No.1 demanded that he received a sum of Rs.9,50,000/- instead of Rs.13,00,000/-. So he informed the complainants through letter to pay a sum of Rs.6,50,000/- to get the sale deed executed in their favour. As because the complainants paid three cheques being Nos 819865 dated 25.12.2013 for Rs.50000/-,925074 dated 21.08.2014 for Rs.150000/- and 925075 dated 21.08.2014 for Rs.150000/- total money amounting to Rs.3,50,000/- to one Tapan Kumar Das which is not received by the opposite party No.1. It is also stated in the written version as well as written notes of argument that the opposite party No.1&2 acknowledged total sum of Rs.13,00,000/- on 10.9.2014 to facilitate the complainants for getting loan from the opposite party No.4. The opposite party No.1 assailed that the cheques were received by one Tapan Kumar Das on his personal capacity. He is not empowered to receive cheques from the prospective purchasers. A legal notice has been served by the opposite party No.1 to the Tapan Kumar Das. It is the case of the complainants that the impugned money of Rs.3,50,000/- accepted by the Tapan Kumar Das on behalf of the opposite party No.1 and it is also recognised by the opposite party No.1 in the agreement for sale. So the claim of opposite party No.1 regarding non acceptance of Rs.350,000/- is not tenable in the eye of law. From the above discussion we may hold that the complainants paid a sum of Rs.13,00,000/- in total for getting schedule mentioned flat to the opposite party No.1 and they are entitled to get the flat delivered, executed and registered in favour of them. It is pertaining to mention that the opposite party No.2 i.e. Mr. Andrew Francis Monteiro, being the partner of opposite party No.1 firm entered into agreement for sale with these complainants and the opposite party No.1&2 registered Retirement Cum Reconstitution Deed on 22.12.2014. Therefore, the opposite party No.2 is no more partner of the opposite party No.1 firm and also the said fact is admitted by the opposite party No.1. The Ld. Advocate of the opposite party No.1&2 during the period of argument, argued that the opposite party No 2 retired from the opposite party No.1 partnership firm and he has no liability in respect of agreement for sale with these complainants. It appears from the documents of the case record that the opposite party No.2 i.e. Mr. Andrew Francis Monteiro, retired from the opposite party No.1 partnership Firm following the formalities in accordance with the provisions of the law. So liability if any will be vest upon the partners of the opposite party No.1.    

It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainants have made several requests to the opposite parties to get the deed executed in favour of them but it remained unheeded. The opposite party no. 1 tried to evade their responsibility by putting blame on Mr.Tapan Kumar Das who being the agent of the opposite party No.1. Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties. In the instant case the opposite party No.1 and its partners are landowners as well as developers.

Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of delivery of possession and getting the deed executed & registered in their favour. Since the landowner as well as well as developers did not take appropriate steps for execution of sale deed in favour of the complainants within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants.

Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat & parking space by adducing cogent document/evidence so the prayer of the complainants are allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly. Interim order if any allowed during the pendency of the complainant petition is vacated with the final order.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party No.1 and its partners in respect of delivery of possession, execution & registration by deed of conveyance.

ORDER

 Hence, ordered that the complaint case being No.63/2016 be and the same is allowed on contest against the opposite party No.1, with a litigation cost of Rs.10,000/- to be paid by the opposite party  No.1 to this complainant.

The Opposite Party No. 1 is directed to handover the delivery of possession alongwith the possession letter, execute and register the deed of conveyance in favour of the complainants after accepting the balance consideration money amounting to Rs.3,00,000/- from these complainants in accordance with the terms of the agreement for sale within 45 days from the date of passing this order.

 The Opposite Party No.1 is directed to pay compensation amounting to Rs.50,000/- to the complainants for causing mental pain and agony within 45 days from the date of passing this order.

 At the event of failure to comply with the order the Opposite Party No.1  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

Opposite party No.2 to 4 are exonerated from this proceeding.

 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 & necessary action.