Date of filing – 07.12.2015
Date of final hearing – 19.01.2018
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a couple/intending purchaser against the Developer/Builder on the allegation of deficiency in services on the part of developer in a dispute of housing construction.
Shorn of unnecessary details, complainants’ case is that on 12.11.2012 they entered into a Memorandum of Understanding (MOU) with the Opposite Party to purchase of a self-contained flat measuring about 1228 sq. ft. on the 2nd floor being Flat No.204, Block-C (Flat Type-4, 3BHK) and a covered car parking space in the project at ‘Magnolia Sky View’ in a proposed G+10 storied building lying and situated at Mouza – Kashinathpur, P.S.- Rajarhat, Kolkata -700135, Dist- North 24 Parganas at a consideration of Rs.28,85,800/- + Rs.2,85,000/- = Rs.31,70.800/-. At the time of entering into such MOU, the complainants had already made payment of Rs.9,22,740/- by way of three cheques. On 06.07.2013 the OP issued a notice for payment of Rs.73,747.40P only for execution of Agreement but on protest, the amount was reduced to Rs.44,367/- and the complainants paid the said amount of Rs.44,367/- by cheque dated 31.07.2013. In January, 2014, the complainants were sent a draft copy of Agreement for Sale and the complainants responded by suggesting/proposing several reasonable corrections and/or amendment in the said Agreement. But despite repeated e-mails and personal phone calls, the OP failed and neglected deliberately to act in a positive manner. On 26.09.2014 all on a sudden the OP issued a letter regarding pre-cancellation-cum-final notice of outstanding amount against the Agreement for Sale of the subject flat. On 04.10.2014 the complainants through their Advocate stating all the facts and countering all the claims of the OP. However, by a letter dated 08.12.2014, the OP terminated the MOU in between the parties owing to efflux of time. Hence, the complainants approached this Commission with prayer for following reliefs, viz. – (a) to direct the OP to withdraw the notice dated 08.12.2014 terminating the MOU dated 12.11.2012 and to conclude the deal for transfer of the subject property; (b) to direct the OP to pay damages and cost etc.
The Opposite Party by filing a written version has stated that this Commission has no jurisdiction to adjudicate the complaint and to give relief to the complainants. The OP admitting the MOU has specifically stated that the project got sanctioned on or about 04.07.2013 and they had mistakenly demanded Rs.73,747.40P in place of Rs.44,367/- and promptly rectified the said mistake. The OP has specifically stated that the complainants along with their Advocate insisted them to make changes in the Sale Agreement and taking this as a valid ground, the complainants refrained from executing the Sale Agreement on one pretext or the other for which they cancelled the MOU and executed another Agreement for Sale dated 14.03.2015 with a third party. Therefore, the complaint should be dismissed.
In support of complainants’ case, complainant no.1 Sri Amit Majumdar has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OP. On behalf of OP, Sri Milan Poddar, Director of the Company has filed evidence through affidavit. The said witness has also given reply against the questionnaires put forward by the complainants. Besides the same, the parties have relied upon several documents including the MOU dated 12.11.2012.
I have scrutinised the pleadings, evidence on record including the documents. I have also considered the submission advanced by the Ld. Advocates appearing for the complainants and OP.
Undisputedly, on 12.11.2012 the complainants entered into a Memorandum of Understanding (MOU) with the Opposite Party/Builder to purchase of a self-contained flat measuring about 1228 sq. ft. on the 2nd floor being Flat No.204, Block-C (Flat Type-4, 3BHK) and a covered car parking space in the project at ‘Magnolia Sky View’ in a proposed G+10 storied building lying and situated at Mouza – Kashinathpur, P.S.- Rajarhat, Kolkata -700135, Dist- North 24 Parganas at a consideration of Rs.28,85,800/- + Rs.2,85,000/- = Rs.31,70.800/-. At the time of entering into such MOU, the complainants had already made payment of Rs.9,22,740/- by way of three cheques. The clause 1(e) of the Agreement, stipulates-
“e) Once the new project at the above mentioned address gets its sanctioned plan, this MOU will be replaced by Sale Agreement on appropriate non-judicial stamp paper. This sale Agreement will be executed by both parties within 6-9 months from the date of signing this MOU and till the new sale agreement is executed, second party shall not be required to make any more payment to first party”.
The materials on record indicate that the opposite party/builder has obtained the sanctioned building plan from the local authority on 04.07.2013. It implies that both the parties were bound to execute the Sale Agreement within 6-9 months from the date of obtaining sanctioned plan. Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the MOU with open eyes after evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the MOU. Therefore, the contents of MOU between the parties towers above the rest. In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –
“In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract”.
The evidence on record goes to show that after obtaining sanctioned plan, the OP insisted the complainants to enter into Agreement for Sale and to that effect sent draft copy of Agreement for sale in late January, 2014 but from the contents of petition of complaint, it emerges that the complainants responded the said draft copy by suggesting/proposing several corrections and/or amendments in the said agreement. Ultimately, by a notice of pre-cancellation dated 26.09.2014 the OP issued final notice and in the said notice, they demand execution of Agreement for Sale along with payment of Rs.44,367/- within 7 days. But fact remains that such a claim of the opposite party is baseless because the complainants have already made payment of amount of Rs.44,367/- on 31.07.2013 and the same was duly acknowledged by OP by issuing a money receipt on the self-same date. This indicates that OP has adopted an unfair means to grab extra money from the complainants. In any case, by a notice dated 08.12.2014 the opposite party cancelled the MOU with an undertaking to refund the deposit made by the complainants.
Be it mentioned here that taking advantage of their position after cancellation of the MOU, the OP entered into a fresh Agreement for Sale on 14.03.2015 with a third party named – Sri Tapas Chakraborty and Smt. Suchismita Chakraborty meaning. Thereby, the opposite party got the entire consideration amount of the subject flat but did not take any pain to refund the amount as per letter of cancellation of MOU dated 08.12.2014. This act and conduct of the OP clearly demonstrates that they have adopted an unfair trade practice for unlawful gain and thereby deficient in rendering services to the complainants.
In their written version, the opposite party has raised a question as to maintainability of the proceeding but that too only applicable in respect of prayer (a) to the Prayer Clause of the petition of complaint. A Forum constituted under the Act is meant for disposal of a dispute in a summary way for a limited purpose and an order for declaration of a notice being illegal beyond the jurisdiction of a Forum constituted under the Act and for redressal of their grievances in this regard, the complainants should have approached a competent Civil Court. But when the complainants being ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act hired the services of OP for purchase of a unit for their own for consideration and despite receipt of part consideration when the OP has failed to render services and found deficient within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act, OP is certainly bound to refund the amount paid by the complainants i.e. Rs.9,22,740/- + Rs..44,367/-= Rs.9,67,107/- along with interest thereon.
The OP being builder invested the amount paid to them by the complainants and earned profit by investment and the same is evident when they unilaterally cancelled the MOU on 08.12.2014 and immediately entered into an Agreement for Sale with a third party on 14.03.2015 and ultimately sold out the same. Therefore, when OP utilised the amount of the complainants for commercial purpose, certainly the amount of Rs.9,67,107/- must carry interest at commercial rate, which in my view, should be 18% p.a. from the date of payment till its realisation. The non-payment of the amount as per commitment by letter dated 08.12.2014 prompted the complainants to lodge the complaint and as such the complainants are also entitled to litigation cost which I quantify at Rs.10,000/-.
In view of the above, the complaint is allowed on contest. The OP is directed to refund Rs.,9,67,107/- along with interest thereon @ 18% p.a. from the date of payments till its realisation. The OP must also pay a litigation cost of Rs.10,000/- to the complainants within 30 days from date otherwise the amount shall carry interest @9% p.a. from date till its recovery.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance.
