FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The factual matrix of the case is that Complainants have entered into an Agreement for Sale with the OPs 1 to 10 for purchasing a flat measuring about 666 sq.ft on the 1^st floor being no. D at Trinetra Apartment, 116, North Station Road, Agarpara, P.S. – Khardah, 24 Parganas (North) by paying Rs.2,90,000/- as booking money and Rs.11,26,000/- paid by OP11 as per the “Payment Terms” of the THIRD SCHEDULE of the Agreement. As per Clause 25 of the said Agreement Ops 1 7 2 agreed to hand over  the possession of the said flat within 24 months but till date no such delivery has been made by the OPs 1 & 2. Complainants tried to contact with the OPs 1 & 2 and requested them to make registration and deliver the possession of the said flat but the OPs 1 & 2 never turned up. After waiting for a long time the Complainants sent a letter dated 06.03.2018to the OPs 1 & 2 and in reply falsely alleging the Complainants OPs 1& 2informed through their Advocate that they have severalreminders for paying the balance consideration but failing which the said agreement has been terminated. It is also intimated on behalf of the OPs 1 & 2 that they will refund the deposited amount. The Complainants sent a letter dated 30.08.2018 to the OPs 1 to 10 which despatched on 07.09.2018 for redressal of the grievance and it has been duly received by the OPs 1,3,5,7 and 10 but till date no reciprocal has been intimated. Finding no other alternative Complainants preferred to file this case praying relief/reliefs.

OPs 1 & 2 contested the case by filing W.V. contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and this Forum has no jurisdiction to hear the case. The case of the OPs 1 & 2 is that the flat in question was ready for delivery of possession and that was intimated to the Complainants on several occasions. On receipt of the notice dated 06.03.2018, issued by the Complainants, OPs 1 & 2 immediately replied the same on 13.03.2018. Further, it is submitted by the OPs 1 & 2 that they have not received any letter dated 30.08.2018 as alleged by the Complainants. More over there is a major mistake on the part of the valuation. As such, the Complaint Petition is liable to be dismissed.

OP11 contested the case by filing WV contending inter alia that the instant is bad for suppression of material facts and non-joinder and mis-joinder of necessary parties. OP11 is a Financial Institute engages in providing Home Loan/Credit facilities to the intending purchaser. On receipt of Application for availing loan by the complainant the OP11 madenecessary search in respect of the said property and also the flat in question and sanctioned the loan and disbursed an amount of Rs.5,70,000/- at an agreed rate for specific period on 13/12/2013 Rs.2,30,000/- on 25/04/2014 and Rs.2,26,000/- on 12/11/2014 in total Rs.10,26,000/- vide Loan Account No. 210200002009 and the EMI is rs.11,731/- . Thereafter the Complainants paid EMI regularly through EDS from their banker HDFC Bank Ltd or by cheque except EMI of April 2018 and February 2019. As per statement of Loan Account of the ComplainantsRs.8,32,109.59/- is due on 25/02/2019. It has been clearly mentioned in the Loan Agreement that an additional interest will be charged on defaulted installments. Further, it is submitted by the OP11 that it is highly illegal and arbitrary act on the part of the Ops 1 & 2 as they have failed to hand over the possession of the said flat to the Complainants within 24 months from the date of the Agreement for Sale dated 17.12.2013. Moreover the instant case is dispute between the OPs 1 7 2 and the Complainants. Op11 is in no way liable for any deficiency of service. As such, the instant Complaint Case is liable to be dismissed against the OP11.

Upon service of notice OPs 3 to 10 did not appear before the Commission to defend themselves and no WV is filed on behalf of them within stipulated period. Thus the case has proceeded ex parte against them.

Contested parties have tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.

Evidently the Complainants booked a flat measuring about 666 sq.ft bearing No. D on the 1^st Floor of the premises No.116, North Station Road, Agarpara, Kolkata – 700109 by paying Rs.2,90,000/- as Booking Amount andRs.10,26,000/- vide Loan Account No. 210200002009 out of total consideration of Rs.14,31,9000/-. Money Receiptsissued by the OPs 1 & 2 in respect of Booking Amountand photocopy of the Statement of Loan A/C 210200002009, Appl No. 2102002542 adduced by the OP11 support the averments made in the Complaint Petition. Ld. Advocate for the Complainant alleged that despite several efforts of the Complainants OPs 1 & 2 neglected to hand over the possession and register the said flat. Therefore they have sent a letterdated 06.03.2018with abovementioned prayer to the OPs 1 & 2 expressing their willingness to pay the remaining amount. On Perusal of the documents on record annexed by the Complainants it is found that OPs 1 & 2 intimated the Complainants through Advocate’s letter dated 13.03.2018 that, as per registered Agreement for Saledated 17.12.2013OPs 1 & 2 was ready for giving possession to the Complainants but inspite of reminders the Complainants did not turn up for payment and registration. Therefore as per Clause 20 OPs 1 & 2 was empowered to determine or terminate the purchase of purchasers for non-compliance of the aforesaid registered agreement. But no such material has been placed on record by the OPs 1 & 2 which can prove that despite trying it could not be get any response on the part of the Complainants. As such, the abovementioned statement made on behalf of the OPs 1 & 2 has no value in the eye of the Law.Rather, it appears as gross negligence on the part of the OPs 1 & 2.

Ld. Advocate for the OPs 1 & 2 argued that as an evidence of payment of installments towards the Consideration Amount of the said flat the Complainants have relied upon the Provisional Certificate issued by the OP11 but no Money Receipt issued by the OPs 1 & 2 or Statement of Account is adduced by the Complainants in this regard. We have perused the documents on record and found that OP11 submitted on oath that, on receipt of the Application for availing loan by the Complainants they made necessary search in respect of the suit property and sanctioned the loan and disbursedLoan Amount of Rs.5,70,000/- on 13/12/2013,Rs.2,30,000/- on 25/04/2014 and Rs.2,26,000/- on 12/11/2014. Photocopy of the Statement of Loan A/c 210200002009, Appl. No. 2102002542furnished by the OP11  support this contention. It is also submitted by the OP11 that OPs 1 & 2 failed or neglected to deliver the possession of the flat in dispute within stipulated period as per Agreement for Saleto the Complainants. Moreover, Ld. Advocate for the OPs 1 & 2 submitted that as per Clause 20 of the Agreement for Sale OPs 1 & 2 have terminated the said Agreement due to default of  payment of consideration amount. It is noted by us that as per Clause 25 of the Agreement for Salethe possession of the flat in question was to deliver to the Complainants by the OPs within 24 months from the date of the execution of Agreement for Sale i.e. on 17.12.2015. On 06/03/2018 the Complainant No.1 wrote a letter to the OP2 expressing his willingness to complete the finalregistration and take the possession of the flat by paying the remaining amount and also agreed to pay the charges for extra sq.ft. We have noticed that OPs 1 & 2 issued Legal Noticedated 13/03/2018 to the Complainants through their Ld. Advocate after receiving the abovementioned reminder from the Complainant No.1 stating that:

In the premises, on behalf of my client advice both of you to take the notice that registered agreement is terminated herewith by this notice and you are to take liberty to take refund of advanced amount after deduction by coming to the office of the developer at office address and official time at an early date.

We have also observed that not a single scrap of paper placed on records wherefrom it can establish that OPs 1 & 2 knocked the Complainants for handing over the possession subject to payment of balance consideration or they have sent any reminder to the Complainants for non-compliance of scheduled payment as per Agreement for Saledated 17/12/2013 as alleged by OPs 1 & 2. In this connection we may refer the letter dated 06/03/2018 and submission of the OP11 wherein it is stated that the Complainants have paid the EMI regularly through ECS from their banker HDFC Bank Ltd or by chequeexcept EMI of April 2018 and February 2019.Therefore exercise of Clause 20 of the Agreement for Sale by the OPs 1 & 2 is an example of unfair trade practice.  To prove their case OPs 1 & 2 relied upon the observation of Hon’ble Supreme Court in the matter of RAVNEET SINGH BAGGA Vs. M/S KLM ROYAL DUTCH AIRLINES AND ANOTHERwhich have no relevance to this case. Failing to deliver the possession of the flat in question within stipulated period OPs 1 & 2 have fall under deficiency of service.

In the result, the Consumer Complaint is allowed on contest in part against the OPs 1& 2 and dismissed on ex parte against the OPs 3 to 10 and also dismissed on contest against the OP11 with a following direction:

1. OPs 1 & 2 are jointly severally directed to refund the deposited amount of Rs.13,16,000/- (290000+570000+230000+226000) with interest @9% p.a. to the Complainants from the respective dates of payment.. 

2. OPs 1 & 2 are also directed to pay an amount of Rs.10000 to the Complainant as litigation cost.

3. The abovementioned payment should be made within 45 days from the date of this order failing which the deposited amount shall attract the interest @12% from the date of this order.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.