Date of filing: 02/02/2021                                                    

Date of Judgment: 08/08/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed under section 35 of the Consumer Protection Act, 2019 by (1) Ms. Sumana alias Sumana Saha and (2) Smt. Bandana Saha alleging deficiency in service and unfair trade practice on the part of the opposite parties (referred as OPs hereinafter) namely (1) M/s. Millennium India Construction (2) Debashish Sarkar (3) Sri Samir Kumar Halder (4) Smt. Anamitra Chakraborty, (5) Smt. Lakshmi Chakraborty (6) Karmarjit Chakraborty (7) Satyajit Chakraborty and (8) Ms. Sara Chakraborty.

Case of the complainants in short is that OP 4 and predecessor-in-interest of OP 5 to 8, namely Amitrajit Chakraborty were the joint owners of Municipal premises No. 237, N.S.C. Bose Road under Jadavpur Police Station now under Netaji Nagar Police Station, Kolkata – 700 047. OP 4 and the said Amitrajit Chakraborty the predecessor-in-interest of OP 5 to 8 entered into an agreement with OP 1 being represented by OP 2 & 3 to develop the said property and to construct a multi storied building therein. The development agreement was executed on 31.08.2006 and the owners OP 4 and Amitrajit Chakraborty (since deceased) also executed and registered a general power of attorney in favour of OP 2 & 3. Building plan was sanctioned being plan no. 151 dated 02.08.2010. Subsequently by an agreement for sale dated 22.07.2010 OP 2 and 3 as developer being partners of OP 1 and as constituted attorney of the owners OP 4 and Amitrajit Chakraborty predecessor-in-interest of OP 5 to 8 agreed to sell a flat and a car parking space described in the schedule ‘B’ of the said agreement at total consideration price of Rs. 25,00,000/-. According to the terms of the said agreement complainants paid sum of Rs. 15,50,000/- in the name of OP 1 firm. But when complainants requested the OP developers to complete the flat and cause registration on receiving balance consideration price, at that time OPs / developers expressed their inability to complete and hand over the said schedule ‘B’ flat i.e. flat no. B3 in Block ‘B’ instead agreed to sell flat no. 9 in Block ‘B’ measuring super built up area 1250 sq. ft. and a car parking space in the ground floor at Rs. 30,00,000/-. However when they sent the final draft deed, area of the flat was decreased to 1115 square feet in place of 1250 sq. ft. super built up area. Thereafter OP 2 sent a draft deed through e-mail on 28.09.2020 but in the draft deed stated the consideration price  Rs. 40,00,000/- instead of Rs. 30,00,000/-. On being asked by the complainants, OP 2 assured that they will send corrected copy and thus OP 2 through e-mail on 10.10.2020 sent a corrected draft deed and he also sent on 02/10/2020 a floor plan wherein the area of the flat was stated as Rs. 1250 sq. ft. However OP 2 again sent a copy of draft describing area of the flat 1115 sq. ft. super built up area. Complainants agreed to purchase the said flat described in schedule ‘C’ of the complaint with an assurance of the developer to refund the excess amount for deficit floor area of the said flat. Accordingly 14.10.2020 was fixed for execution and registration of schedule ‘C’ property. Complainants had paid the entire consideration price of Rs. 30,00,000/- but on the demand of developer paid further sum of Rs. 2,00,000/- towards registration fee and stamp duty. Accordingly on 14/10/2020 in the office of developer in presence of some unknown person who were represented as staffs of registry office, complainants signed in the deed of conveyance. Thereafter complainants started arrangement for furnishing the flat with furniture and fixtures through the agent of OPs namely Badal and also paid sum of Rs. 15,000/-. But taking advantage of situation of Covid – 19 OPs developer forcefully and fraudulently broke open the pad lock and took the forceful possession. Complainants came to know for the first time on 22/01/2021 that on 14/10/2020 no deed was registered in the name of the complainants in respect of subject flat. Complainants also approached the local police station but of no help. Suddenly thereafter OP issued a letter on 27.01.2021 allegedly cancelling the agreement to which complainants have replied and sum of Rs. 50,000/- transferred in the account of the complainant Sumana Saha was also returned back. So the present complainant has been filed by the complainants praying for directing opposite parties 1 to 3 to hand over physical possession of the subject flat and car parking space described in the schedule “C’, to execute and register the deed of conveyance in respect of the said flat and car parking space, to pay 50,000/- for deficit area of 135 sq. ft., to pay stamp duty and registration fee before the authority at the time of registration to direct the OPs not to create any third party interest, in alternatively to direct the OPs to refund Rs. 32,40,000/- only with interest @ 12% from 22.07.2010 to till realisation of the amount,  to pay sum of Rs. 10,00,000/- as compensation for mental agony and harassment caused by OP 1 to 3, to refund Rs. 2,00,000/- paid by complainants for registration of deed, to pay Rs. 5,00,000/- towards extra charges for completing the flat and to pay Rs. 50,000/- as cost of litigation.

Opposite party 1 & 2 have contested the case by filing the written version disputing and denying the allegations made in the complaint contending inter-alia that due to violation of payment schedule of the agreement, OP 1 & 2 asked the complainants to pay the market value but due to request of the complainants price could be moderated but it was not Rs. 30,00,000/-. OP 1 & 2 had all along asked the complainants to pay at least Rs. 40,00,000/- for the alleged flat and car parking space. In spite of such good gesture by the developer, complainants are trying to obtain a high value property in an under value rate which OP could not accept. So the developer have been compelled to revoke the said unregistered agreement. It is further contended that the landowners have already filed a title suit being T.S. 60 of 2021 against the developers in which Ld. Civil Judge (Sr. Division) 5^th court at Alipore has passed an order of interim injunction. So the OP 1 & 2 have prayed for dismissal of the complaint.

OP 3 & 4 to 8 have not turned up on service of notice and thus the case has been heard exparte against them.

During the course of trial, complainants filed examination in chief on affidavit which was followed by filing of questionnaire and reply thereto. Thereafter contesting OP 1 & 2 filed their examination in chief on affidavit. Complainants filed the questionnaire but no reply was filed by the OP 1 & 2 in spite of opportunity given. Thus ultimately argument has been heard on behalf of the complainants. Brief notes of argument has also been filed by the complainant. Even though neither OP nor anybody on behalf of OP appeared but a brief notes of argument was found lying with the record.  

Complainants in support of their claim have filed the following documents:-

1. Copy of agreement for sale dated 22.10.2010.
2. Money receipts and copy of cheques showing payment of sum towards consideration price, for registration fee and stamp duty and Rs. 15,000/- towards furnishing the flat and also 2 no. of floor plans,
3. Emails dated 28/09/2020, 29/09/2020, 01/10/2020, 02/10/2020, 03/102020, 05/10/2020 and email 06/10/2020 with their respective attachments.
4. Copy of what app messages exchanged between Sri Pronob Kumar Saha & Debasis Sarkar / OP 2.
5. Complaint lodged before Netaji Nagar Police Station.
6. Copy of letter dated 27.01.2021 sent by OP 1 and
7. Copy of reply sent by the complainants to the aforesaid letter dated 27.01.2021.

Contesting OP 1 & 2 have also filed the following documents:-

1. Copy of letter dated 03/02/2020 sent by OP 1 to the complainants stating the recent market value of the flat was Rs. 62,00,000/-
2. Copy of letter dated 29/01/2021 stating consequent to cancellation OP 1 transferred considerable amount as refund.
3. Copy of letter dated 27/01/2021 sent to complainants stating about cancellation of agreement.

So on consideration of rival contentions, following points are required to be determined:

1. Whether the OP / developer agreed to sell the property described in the schedule ‘C’ of the complaint consequent to inability to transfer the property described in schedule ‘B’ of the agreement for sale dated 22.07.2010?
2. Whether there has been deficiency in service and unfair trade practice on the part of OP / developer?
3. Whether the complainants are entitled to the reliefs as prayed for?

DECISION WITH REASONS

All the three points being co-related are taken up together for discussion in order to avoid repetition. At the very outset it may be pertinent to point out that there is no dispute that an agreement for sale was entered into between the complainants and OP 1 to 3 as developer and constituted attorney of the owners OP 4 and Amitrajit Chakraborty (Predecessor-in-interest of OP 5 to 8) on 22.07.2010 to sell a flat and a car parking space as described in schedule ‘B’ of the said agreement. The flat described in the agreement of sale was flat no. B3 in Block ‘B’.

On a careful scrutiny of the written version filed by the contesting OP 1 & 2 (the firm and its one of the partner) that it has also not been specifically denied that subsequently they agreed to sell the flat no. 09 in Block ‘B’ in third floor. According to the complainants OP developer expressing their inability to transfer the schedule “B” flat in the agreement i.e. flat no. B-3 in Block “B” agreed to sell flat no. 9 in Block “B”.

The only contention raised by the contesting OPs / developer is that the price was actually Rs. 40,00,000/- and not Rs. 30,00,000/- as claimed by the complainants. But in support of their such claim, OPs / developer have not filed any document. On the contrary they have not challenged sending of copy of draft deed ultimately on 03/10/2020 to the complainants along with email. On perusal of the said draft copy of the deed it is evident that the flat and car parking space agreed to be sold has been described in schedule ‘B’ wherein the area of the flat has been specified as super built up area 1115 sq. ft. more or less in third floor being flat no. 9 in Block “B” along with a car parking space no 38 on the ground floor measuring area about 135 sq. ft. The price of the said flat no. 9 and car parking space has been categorically mentioned as Rs. 30,00,000/- and in the memo of consideration therein there is acknowledgement of payment of entire consideration price of Rs. 30,00,000/-. However since the said document which is a draft deed does not bear the signatures of the parties, it cannot have any evidentiary value but preparation of the said draft deed and sending of the same by OP 2 the partner of the OP 1 firm is established from the whats app chats exchanged between the parties.

It is the specific claim of the complainants that as per the demand of the OP developer, they had paid sum of Rs. 2,00,000/- for the execution and registration of the deed of conveyance. The draft of which was sent to them as mentioned above for approval. On 14.10.2020 complainants had signed in the deed of conveyance in the Office of OP firm in presence of some persons who were represented to the complainants that they were the staffs of concerned registry office and subsequently developer had also handed over the key of the said flat.

The abovementioned claim of the complainants is strengthened rather well established from the whats app message sent on behalf of the complainants on 02.12.2020 and 14.12.2020 wherein OP 2 has been specifically asked to give the sale deed and possession letter. The whats app message sent on 14.12.2020 reads as follows:-
“As per telephonic talk you are giving me sale deed and possession letter on 15.12.2020”.

In reply OP 2 has sent message asking to go on 18.01.2021. He has replied “After 18^th January”.

Thereafter on behalf of complainants, Sri Pronob Kr. Saha who appears to be father of complainants has replied “O.K. I am coming to you on 19^th January for electricity connection meter and to take sale deed and possession letter”.

Nowhere OP 2 has stated that he did not have any such sale deed or no such deed was registered. So these messages also establish the claim of the complainants that keys of the flat was handed over to them making them to believe that the sale deed was already registered in their name. Complainants have also stated that after the key was handed over, they started the arrangement for furnishing the flat through the agent of OP developer namely one Badal and had paid Rs. 15,000/- in the account of one Madhav Pandit but taking the advantage of situation of Covid – 19 pandemic, OP developers had taken forceful possession of the said flat.

It is evident from the written version filed by OP 1 & 2 that in effect no such deed of conveyance was registered but OP developer by practising fraud upon the complainants made them to believe that the deed of conveyance was registered on 14.10.2020 on commission in the office of developers. This amounts to not only deficiency in service but also unfair trade practice on the part of the OP / developers. This is an example of how a developer exploits and cheats bonafide purchasers and the purchasers have no option but to believe and trust the developer to get the property purchased by them after paying such a huge amount. So any cancellation of the agreement by the developer is illegal and amounts to unfair trade practice and thus complainants are entitled to the flat and car parking space described in the schedule ‘C’ of the complaint, compensation for harassment, refund of Rs. 2,00,000/- paid towards registration cost and also the litigation cost. Since by the original agreement dated 22/07/2020, OP developer agreed to sell flat measuring 1250 sq. ft. super built area but subsequently stating their inability agreed to sell a flat of 1115 sq. ft., complainants are also entitled to excess amount paid towards deficit area. OP, developer could not enhance the price from Rs. 25,00,000/- to Rs. 30,00,000/- and at the same time also give the area of the flat less than what was originally agreed upon. In alternatively complainants are entitled to refund of total sum of Rs. 32,00,000/- paid as consideration price and registration costs along with interest therein and the compensation and litigation cost as already observed above.

Before parting it may be pointed out that regarding the contention of the contesting OP developer about pendency of a civil suit and order of interim injunction therein, a detailed order has been passed on 12.11.2021. Since the said order has not been challenged by the OP in higher forum, it has reached its finality.

Hence

                ORDERED

CC/74/2021 is allowed on contest against opposite party 1 & 2 and exparte against rest of the opposite parties. Opposite party 1 to 3 are directed to handover the flat and car parking space described in schedule ‘C’ of the complaint to the complainants within one month from the date of passing of this order. OP 1 to 3 are further directed to pay Rs. 50,000/- towards refund of deficit area. They are further directed to pay compensation of Rs. 3,00,000/- towards harassment and mental agony suffered by the complainants and also towards unfair trade practice. OP 1 to 3 are also directed to refund Rs. 2,00,000/- paid by the complainants as cost of registration and further pay Rs. 15,000/- as litigation cost. All the amount shall be paid by the OP 1 to 3 within the aforesaid period of one month in default the entire sum shall carry interest @ 10% p.a. till its realisation.

All the opposite parties are further directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat as described in schedule ‘C’ of the complaint within the aforesaid period of one month failing which the complainants may take step for getting it registered through the machinery of this commission by way of execution. 

In alternatively if OPs fail to deliver possession of the flat and car parking space and execute and register the deed of conveyance, OP 1 to 3 shall refund the sum of Rs. 30,00,000/- paid by the complainants as consideration price and Rs. 2,00,000/- paid towards registration cost along with interest on the said total sum of Rs. 32,00,000/- @ 10% p.a. from the date of agreement i.e. 22.07.2010 to till this date within the aforesaid period of one month.

     OP 1 to 3 shall also pay the compensation of Rs. 3,00,000/- and Rs. 15,000/- as litigation cost as already directed above. In default of payment, entire sum shall carry interest @ 10% p.a. till realisation.