Hon’ble Mr. Ajeya Matilal, Presiding Member
Ld. Advocate for the complainant is present. Received communication from the Registrar vide Memo No. 002/SC/2J – 2/17 dt. 14.06.2023 wherefrom the Registrar requested us to dispose of the case in accordance with law.
Ld. Advocate for the complainant is present.
Heard the Ld. Advocates for the complainant and OP no. 2.
This is a case u/s 17 of the C.P. Act, 1986 with a prayer for direction upon the OP no. 1 to deliver the possession of flat in question in a habitable condition and execute a deed of conveyance etc with alternative prayer for refund of the deposited amount of Rs. 3,54,978/- along with other dues.
The complainant’s case is in short like that the complainants are father and daughter as the complainant no. 1 resides abroad so he is represented by her father being complainant no. 2. OP no. 1 is a developer carrying its business at Godrej Genesis Building, 2nd floor, Salt Lake City, Kolkata- 700091 and the OP no. 2 is a financier who sanctioned the building loan to the complainants. The OP no. 1 started construction of a multi storied building called ‘SANHITA’ at a property situated at Mouza – Satuli, J.L. no. 49 under P.S. Kashipur, Bhagwanpur Gram Panchayet, District- South 24 Parganas. Seeing the advertisement in a daily Newspaper the complainant decided to purchase a residential flat mentioned in the schedule of the complainant. So, the complainant submitted an application form on 13.02.2014 and paid application money of Rs. 2,00,000/- and 1,00,000/- against which the money receipts were issued by the OP No. 1.
Subsequently, the OP no. 1 allotted a flat bearing no. 3H on the 3rd floor at Block No. 3B4 under Precient-01 having super built up area of 916 sq. ft. consisting of 3 bed room, 1 car parking space etc for total consideration of Rs. 19,69,890/- including cost of flat of Rs. 17,74,890/- and cost of car parking space 1,70,000/-. An agreement for sale dt. 20.06.2015 was executed between the parties in certain terms and condition. As per agreement for sale dt. 20.06.2015 the OP no. 1 allotted the scheduled flat. An agreement for sale was executed between the parties on 22.06.2015 and subsequently, a fresh agreement for sale was executed on 27.08.2016.
As per the agreement the OP no. 1 agreed to complete the construction of project and deliver the possession and the flat within 36 months from the date of allotment within the extended period of 6 months. For purchasing the flat the complainant approached the OP no. 2 for House Building Loan for an amount of Rs. 14,59,762/- which was sanctioned vide sanction letter dt. 11.08.2015. As per terms of the sanctioned letter the complainants were supposed to submit property related documents and accordingly the complainants requested the OP no. 1 for supply of property related documents for final disbursement of loan. But in spite of repeated demands from the complainants, the OP no. 1 failed to provide any related documents. So, the complainants failed to satisfy the financer consequently the complainant did not get any loan.
The complainants paid Rs. 3,54,978/- to the OP no. 1 on 08.07.2014 before allotment. The OP no. 1 received the total payment of Rs. 3,54,978/- which would reveal from continuing page 18 of the complaint.
The OP no. 1 demanded the rest consideration amount from the complainants. But the complainants were unable to make such payment because no loan was sanctioned in their favour due to non delivery of the original documents by the OP no. 1 to the Financer being OP no. 2.
On 18.03.2019 the complainant served a legal notice to the OP no. 1 through his Advocate requesting him to deliver the possession of flat on payment of balance consideration money and execute the deed of conveyance.
In reply to the letter incorporated in running page 56 of the complaint, the OP no. 1 stated that due to non compliance by the complainants they cancelled the agreement for sale. So, the complainants filed the case on 05.10.2020.
The OP no. 1 initially contested the case by filing W.V denying the materials allegations of the claimed petition.
In para 10 of the W.V OP no. 1 admitted that the delay occurred in completion of construction of the building due to some political as well as local disturbances and the reason for delay has been duly communicated to the complainants. But the OP no. 1 did not adduce any evidence.
The OP no. 2 being the Financer contested the case stating that as alleged loan was sanctioned to the complainant subject to fulfilment of certain terms and condition and the said sanction was valid for 3 months only. The complainant did not fulfil the terms and condition within stipulated period, so no loan was sanctioned. It appears that no relief has been sort for by the complainants against the OP no. 2.
In proper adjudication of the disputes between the parties following points are taken for consideration:-
(i) Whether the complainants are consumer?
(ii) Whether there was any deficiency in service?
(iii) Whether there was any cause of action to file the complaint?
(iv) Whether the complainants are entitled to relief as prayed for?
Decision with reasons:
All the points are taken together for the sake of convenience.
The agreement for sale dt. 28.08.2016 annexed at page no. 22 of the complaint.
The money receipts regarding payment of the aforesaid sum which we have discussed are already on record and the payment of the said sum was also confirmed by the OP no. 1. Complainant adduced evidence to the effect that within the stipulated period the OP no. 1 failed to deliver the completed possession of the completed flat to the complainant. So, it is apparent that there is deficiency in service on the part of the OP no. 1.
The Ld. Advocate for the complainant referred to a decision of Hon’ble NCDRC reported in 2016 (4) CPR 260 (NC). In para 14 of the said judgment the Hon’ble Commission observed “The petitioner as per the Agreement could not have cancelled the deal without waiting for the respondent to pay the balance amount after obtaining a loan.”
The Ld. Advocate for the complainant also referred to a decision of Hon’ble NCDRC reported in 2017 (4) CPR 836 (NC) wherein the Hon’ble Commission observed “The relationship of consumer and service provider does not come to end on account of one of the parties cancelling the said agreement. If deficiency on the part of the respondents in rendering services to them is proved, the complainants/ appellants would be entitled to appropriate relief in terms of the provisions of the Consumer Protection Act.”
Ld. Advocate for the complainants also referred to a decision reported in 2022 (1) CPR 23 (NC) wherefrom it appears that in case of delay in delivery of possession the complainant is entitled to get relief.
The Ld. Advocate for the complainant referred to the Clause 2F of the agreement for sale at running page 27 of the complaint wherefrom it appears that there is a provision that in case of default by the purchaser the OP no. 1 shall be entitled to refund the same after deducting 30% of the amount paid by the complainant.
We have perused the oral and documentary evidence adduced by the complainants. It appears that evidence adduced by the complainants was not shaken.
So, on careful consideration of the evidence we are of the view that the complainants are consumers and there is a deficiency on the part o the OP no. 1 and the complainants are entitled to get refund as prayed for. We have already discussed that in case of delay in delivery of possession the complainants are entitled to refund in view of discussion of the Hon’ble National Commission referred above. So, all the points are decided accordingly in favour of the complainant.
Hence it is ordered
The CC/668/2019 is allowed ex parte against the OP no. 1 and dismissed against OP no. 2. The OP no. 1 is directed to refund Rs. 3,54,978/- within 60 days from this order with 12% interest on the paid amount from the date of payment with a litigation costs of Rs. 20,000/-. If the amount is not paid within the stipulated period, the complainants will be at liberty to put the award into execution.
