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 complainant being an intending purchaser entered into an agreement for sale on 9.2.2019 with the op for purchasing a residential flat on the 03rd floor, front side of the building named as “Asha Niketan” having super built up area more or less 1150 sq. ft. (entire 3rd floor) situated under holding no.5C, S.R. Dutta Sarani, ward no.11, under R.S. Dag no.1721, Khatianno.4191, L.R Dag no.3183 within Uttarpara –Kotrung Municipality under P.S. Uttarpara, Dist-Hooghly which is within the jurisdiction of this ld. Forum. The details of the said agreement for sale at a settled consideration of Rs.12,80,000/- including stamp duty, registration charges and lawyer’s fees.
The op shall hand over the said flat within the end of March, 2020 and the rest amount of Rs.6,80,000/- will be paid by the purchaser and the seller handover the vacant peaceful possession of the said flat to the purchaser and execute the necessary transfer documents in favour of the petitioner at the time of registration of the said flat. The petitioner has paid an amount of Rs.1,00,000/-on 22.8.2019, Rs.3,00,000/- on 11.12.2019, Rs.80000/- on 1.1.2020 and Rs.4,00,000/- on 9.1.2020 total amounting to Rs.8,80,000/- out of the total consideration amount and thereby the petitioner became the consumer under the op. It is also pertinent to mention here that the op received those amount after giving proper receipts to the petitioner and as per agreement for sale, the balance consideration amount ofRs.400000/- will be paid to the op at the time of execution and registration of the proper deed of conveyance in favour of the petitioner. The petitioner on several occasions ask and request the op to receive the balance consideration amount and to handover the possession of the flat within March, 2020.
The op in order to avoid his duties and liabilities sent one Advocate’s letter dt. 3.2.2020 to the petitioner through his Advocate whereby the op gave some false statements and after receiving this letter the petitioner on 10.2.2020 sent a reply through his ld. Advocate and requested the op to complete the said flat within time and to execute a proper deed after receiving the balance consideration amount from the petitioner. Again op sent another letter dt. 16.11.2020 through his ld. Advocate demanding additional sum of Rs. 1,79,560/- for works to be done in the flat pertaining to fixture of titles etc. and op supplied a pay slip dt. 1.1.2020 where the forged signature of the petitioner appears. Then the petitioner protested the said illegal acts of the op by sending another notice dt. 27.11.2020 through ld. Advocate.
The op illegally hand over the flat in question measuring about 1150 sq.ft. in the 3rd floor of the premises and after obtaining the information the petitioner informed the op through notice dt. 27.11.2020 and on 14.12.2020 the petitioner visited the said flat and it was noticed that some portion of the flat has been occupied by one unknown person and on enquiry it came to his knowledge that the said unknown person purchased 650 sq.ft. from his portion of 1150 sq.ft. and then the petitioner collected necessary information from the office of ADSR, Uttarpara and found that the op has illegally sold out that portion to the third party. Then finding no other alternative the petitioner lodged complaint before Uttarpara P.S. being Uttarpara P.S. case No. 05/21 dt. 2.1.2021 u/s 468/420/406 of IPC against the op.
Complainant filed the complaint petition praying direction upon the opposite party to execute and register the deed of sale in respect of the residential flat on the 3rd floor front side of the said building measuring an area of 1150 sq.ft. situated in the schedule mentioned property after receiving the balance consideration amount and to deliver the Khass possession of the said flat i.d. return back Rs. 8,80,000/- along with interest to the petitioner and to pay a sum of Rs. 10,00,000/- towards compensation for mental harassment and unfair trade practice and to pay a sum of Rs. 50,000/- towards litigation cost.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the work could not be completed within the end of March, 2020 due to shortage of labour ensuing due to the Covid situation at that point of time and out of the total amount, there lies a huge discrepancy with regard to the sum of Rs.80,000/- the technicalities of which has been discussed above already. With regard to the handing over the flat, the op would have handed over the said flat by the end of March, 2020 if the lockdown had not ensued. Since the letters were issued by the Ld. Counsel of the op for demanding the rest of the consideration amount for completion of the flat alongwith the charges for extra work, which the complainant is in complete denial of. The complainant agreed upon and asked the op to carry on with the extra work, to which effect he even signed on the bill and accepted the same, but later on when the cordial relation among the duo turned bitter, the complainant on a very straight note denied to accept his own signature and claimed it as forged. It is then that he sent a legal notice through a different advocate to inform the same. This gives a vivid illustration of his notoriousness. The complainant had filed a frivolous and harrassive criminal litigation against the op, from which the op has obtained order of Bail from the ld. Court by stating the truth of the events. The pleadings made as prayer by the complainant is liable to be rejected and that these prayers do not have any sanction in accordance to law.
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 party.
The O.P. has filed a evidence on affidavit which reiterates the averments of the written version.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party 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.
Mr. Abhijit Das, the complainant has filed the present case stating therein that he being an intending purchaser entered into an agreement on 9/2/2019 with M/s. King Construction ( the opposite party ) for purchasing a residential flat on the third floor of the building named Asha Niketan having super built area more or less 1150 sq.ft ( entire third floor) situated under holding number 5C, S.R. Dutta sarani , ward no. 11. The settled consideration was for Rs. 12,80,000/ out of which Rs.8,80,000/ was paid by the complainant and the balance consideration of Rs. 4,00,000/ amount was agreed to be paid at the time of execution and registration of the proper deed of conveyance in favour of the petitioner.
The opposite party contests the case by filing written version denying therein regarding payment and admits that he has received less than half of the total consideration amount from the complainant. His further case is that he issued a dateless money receipt to the tune of Rs. 80,000/ being requested for the same by the complainant. He has admitted that the delivery of the flat was not made within the end of March 2020 on the ground that he could not complete the work within the specified time due to shortage of labour during the COVID situation at that point of time. His specific case is that there was an extra charge of Rs. 1,79,560/ for extra work. He has also denied about sale any portion of the third floor to anyone else. It is also the case of the O.P that the complainant has lodged some cases against him making absurd claim and the petitioner has lost his case and as such the claim of the petitioner is to be rejected.
Both the parties have filed their evidence on affidavit on 16/12/21 and 19/5/22 respectively which this commission has made scrutiny. It appears from the evidence of the petitioner that there was an agreement for sale on 9/12/19 with the opposite party for purchasing the residential flat on the third floor having super built area more or less 1150 sq.ft for consideration of Rs. 12,80,000/ and which was to be handed over within the end of March 2020. In support of his contention the petitioner has submitted photo copies of four documents which have been marked as money receipts and there by the O.P appears to have received Rs. 8,80,000/ and as such the fact of payment of the aforesaid amount cannot be denied by the O.P.
A frustrated Endeavour has been made by the O.P regarding issue of date less money receipt to the tune of Rs. 80,000/ in favour of the complainant. The petitioner has also filed an agreement which has been written as “notarial certificate” dated 9/12/2019 wherein it appears that the flat should have super built-up area of 1150 sq.ft on the third floor and that the said fat has to be handed over to the complainant within the end of March 2020. Both these facts about part payment of consideration and for a flat with super built area of 1150 s.ft cannot be denied in any manner what so ever. About issue of one date less money receipt to the tune of Rs. 80,000/ in favour of the complainant is a baseless and vague assertion.
Admittedly, the flat was required to be handed over to the complainant by end of March and it is also an admitted fact on behalf of the O.P that the same could not be done and the reason therefore has been given that “at that point of time due to shortage of labour ensuing due to the COVID situation “.
Fact remains that a criminal case was lodged against this O.P which was treated as Uttarpara case no. 05 dated 2/1/21 in the court of Ld. ACJM , it is also a fact that the complainant made request of extra additional work for which a bill amounting to Rs. 1,79,560/ was due and this fact has been substantiated by a bill dated 1/1/20 duly signed by both the parties. It is also an admitted fact that the flat was required to be delivered to the complainant within March 2020 and as such the fact remains that this expenditure of Rs. 1,79,560/ was made within the period of handing over possession of the flat to the complainant.
It is also an admitted fact that there was a sale of a portion of the flat in question of 475.2 sq.ft more or less being flat no. T 1 to Mr. Pradip Rout and Mrs. Anita Rout and the petitioner has also been able to prove the same by submission of photocopy of deed of conveyance dated 31/3/2022 being no. 062101945 for the year 2022, volume no. 0621-2022, book no. 1. Thus there is no other alternative but to hold that the O.P intentionally failed to comply with the agreement with the petitioner to deliver possession of the flat in question in time and also it is an admitted fact on the basis of the photocopy of the deed referred to herein above relating to transfer of a portion of flat no. “T 1” of the third floor to somebody else and thereby has intentionally avoided to handover the flat in question to the complainant within the specified time.
Admittedly, the opposite party made some extra work in the said flat and the bill of Rs. 1,79,560/ was raised by O.P for such work which the complainant duly signed but as the said bill was unpaid the opposite party shall deduct the said amount of Rs. 1,79,560/ from the amount that has already paid to them by the complainant as consideration amount.
Both the issues are thus disposed of.
Hence
ordered
that the complaint case no. 20 of 2021 be and the same is decreed on contest against the opposite party.
The complainant do get back Rs. 8,80,000/ along with 9% interest p.a from the date of initiation of this instant case till realization from the O.P within 45 days from date else complainant do take recourse to law.
The complainant do get further amount of Rs. 8,00,000/ within 45 days from date on the ground of sale of portion of flat in question vide being no. 062101945 for the year 2022, volume no. 0621-2022, book no. 1 referred to herein above else complainant do take recourse to law.
The petitioner do further get an award of Rs. 3,00,000/ towards compensation and mental harassment as well as an award of Rs. 50000/ towards litigation cost within 45 days from date otherwise petitioner may take recourse to law.
Be it noted that an amount of Rs. 1,79,560/ be deducted from the total awarded amount by the O.P for expenditure towards extra work .
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.
