Dated : 07 July, 2022

Final Order / Judgement

HON’BLE MR. AYAN SINHA                 MEMBER

FACTS IN BRIEF

This is a complaint U/S. 35 of C.P. Act, 2019 made by Vinod Shaw alleging unfair trade practise and deficiency of service against the OPs (1) Maity Enterprise (OP No. 1)  (2) Bablu Maity (OP No. 2) (3) Bechu Gopal Das (OP No. 3) and accordingly prays for a direction upon the OPs for delivery of possession, to execute and register  deed of conveyance, to hand over the  completion certificate or alternatively to refund the earnest  money of Rs.11,24,000/-.

          In a nutshell, the  case  of the complainant is that he had entered into an agreement  for sale dated 18.07.2016 with OP No. 1, represented by Opposite Party  2 and the OP  No. 3 in order to buy two 550 sqr. ft. flats along with car parking space as mentioned in Schedule B at a  consideration of Rs.35 lakh. Out of the said consideration price, he paid 11,24,000/- in total by instalment on different dates during the period from 06.01.2014 to 25.06.2018 to OP No. 2. Prior to that, on 22.02.2013 by way of an agreement  for construction  the Opposite Parties jointly agreed to develop the entire property (Schedule A property) in  which B schedule property is a part. OP No. 3 also for the purpose of said development of A schedule property executed and registered one power of attorney in favour of OP No. 2. But ultimately, the Opposite Parties failed to complete the construction of the flats etc. as per agreement and deliver the B Schedule property to the complainant and thereby failed to perform their part of the contract. Finding  no other   alternative, complainant sent several  letters demanding possession of the B schedule property and execution & registration of  deed  on receiving the balance consideration money. Or, in the alternative, refund the amount received by them as advance with statutory interest. But nothing was  done by the  opposite parties and finally  the complaint filed the instant appeal before this  Commission seeking several reliefs, namely, delivery of possession of the B Schedule property execution and registration of property deed of conveyance, compensation etc.

          Both the OPs No. 1 & 2 contested this case by filing a written statement whereby they denied the allegations made in the petition of complaint. However, they admitted the agreement having been made between them and the complainant in respect of the B Schedule property and also the amount   of money advanced by the complainant. However, their case is that upon completion of the construction of the said flats in the month of August, 2019, the complainant was asked by OP No. 2 to take possession of  his flats by paying the balance consideration money. It is alleged that despite numerous requests from their part the complainant did not pay the balance consideration and take possession of his flats. Since the complainant   failed to fulfil his part of obligation in  terms of agreement dated 18.07.2016 and after waiting for a substantial period of time, OP No. 2 was compelled to sell the said flats to other intending purchasers, on 30.04.2021 and 29.07.2021. So, they prayed for dismissal of the instant complaint. 

OP No. 3 did not contest this case by filing written version.

          Both the parties have filed their evidence.  They also exchanged questionnaires and replies thereto and finally submitted brief notes of argument. Both   of them also filed documents. The point  for  consideration, therefore, are as follows:

POINTS FOR DETERMINATION

1. Is the instant complaint maintainable?
2. Whether the  complainant is entitled to the reliefs as prayed for?

DECISIONS WITH REASONS

We have carefully gone through the materials on record including the  evidence filed by both  the parties and the questionnaires and replies thereto and also the documents. On behalf  of the complainant it  was argued that the opposite parties failed to comply with their part in terms of the agreement for sale  even though the complainant advanced  a substantial amount of consideration price. It is argued that this failure to complete the flats and the car parking space as agreed upon and handing over the same to the complainant is nothing but unfair trade practice and deficiency in service on the part of the opposite parties. Whereas the opposite parties argued that despite several requests the complainant failed to pay the balance consideration price  for  execution & registration of the deed of conveyance in favour of the complainant.

          Admittedly, complainant had entered into  an agreement with the OPs for  two flats and one car parking space as mentioned in the order to the complaint at a consideration of Rs.35 lakh in total. It is also admitted that complainant paid by way of instalment Rs.11,24,000/-  in total. We further find that subsequently the said flats were already sold out to  other intending purchasers. Now the question is who is actually responsible for the flats and the car parking space not being handed over to  the complainant thereby violating the terms and conditions of the deed of agreement.

          What we find both the parties lay blame on each other. The complainant  all along claimed that despite a substantial amount of advance being made by him, the  OPs were at fault in not getting the flats completed and also in execution of the deed of conveyance. On the other hand, according to OPs, the  construction was completed in the month of August, 2019 and immediately, thereafter OP 2 called upon the complainant to take possession  of the flats. It is alleged that the complainant did not take  possession of the said flat by paying the balance consideration. It is further alleged  by  OPs that complainant requested them to wait for some time as  they were unable to remit balance sum and after waiting for a reasonable period, the OPs on compulsion sold out the property to  third parties.

We  find  complainant filed documents namely, deed of agreement and the  vouchers showing  payment of advance made  to the OPs and  three letters exchanged between the parties. The first letter dated 30.03.2021 by which complainant through their Advocate informed the OPs that he was/is all along ready and willing to perform his part of contract and asked the  OPs to deliver possession of  the flats as agreed upon between  them and also to execute the deed of conveyance on receiving balance consideration price. In the said prayer, complainant also made an alternative proposal for refund of the entire amount of advance which is 11,24,000/- with interest as

against the said letter. OPs issued a letter  through their Lawyer dated 13.04.2021 in which they requested the complainant to pay the balance consideration price and to take possession of the flats. By this letter the  complainant was also requested to take pertinent steps for registration and execution of the deed  of conveyance and accordingly to inform the OPs regarding the date and  venue of the registration so that he can commence the process of registration. As against this, complainant issued letter dated 22.04.2021 through his Advocate  and in the said letter, the complainant still contended that the flats were unfinished and he refused to pay the money.  And ultimately, the said flats were sold to third parties on 13^th April, 2021 and 29^th July, 2022. Now, the  question is if on 22.05.2021 the flats remained unfinished as per the letter issued on behalf of the complainant, then how the said flats were sold immediately thereafter.

 Therefore, from the documents produced in this case, we think that  the complainant failed to prove the laches on the part of the  opposite  parties.

          Be that as it may, as the flats were already sold to third parties, no order for handing over the said flats and/or the car parking space to the complainant does arise at all. Now the only relief that can be given to the complainant is refund of the amount he made advance to the OPs  with interest so that   he can be adequately compensated. This apart, the complainant is also entitled to cost of litigation  in this case.

          So going through the materials on record and in view of the discussion  as made above, the complainant   is entitled to get relief(s) in this case.

Hence,                            it is

ORDERED

That the instant case be and the same is allowed on contest.

 Complainant is entitled to get refund of Rs.11,24,000 (eleven lakh  twenty four thousand) from the OPs along with interest at the rate of 10% p.a.  from the date of payment which was last paid on 25.06.2018 by the complainant, until realization in full.

 OPs are also directed to pay Rs.5000/-(five thousand only)  to  the complainant towards cost of litigation.

OPs are jointly and severally liable to comply with the aforesaid order by making payment of the said amount and accordingly they are directed to pay the said amount within 45 days from the date of this order, failing which complainant shall be at liberty to proceed in accordance  with law.

Dictated and corrected by me.