Date of Filing : 18 June, 2019.
Date of Judgement : 12 June, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when the complainant, Sri Rathindra Nath Biswas, files a complaint under Section 12 of the Consumer Protection Act, 1986, herein after called the said Act, against (i) M/s. S. P. Enterprise, (ii) Sri Ganesh Paul, (iii) M/s. Swabhumi Real Estate India Ltd. and (iv) Sri Ramesh Subudhi, herein after called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the O. Ps.
The statement of the complaint is, in brief, that the O. Ps. were developing a land of 30 Cottahs at Mouza – Parui, Touji No. – 1523, J. L. No. – 3, R. S. Dag No. – 2456, R. S. Khatian No. – 958, R. S. No. – 79-1/2, Holding No. – F6-44, New Beledanga Road, Ward No. – 14 under Maheshtala Municipality, P. S. – Maheshtala, Dist. – 24 Pgns (S), by constructing multi storied building having different Flats/units with an intention to sell them. Complainant, after getting this information, met with the O. Ps. and agreed to purchase a flat and then the complainant entered into an Agreement for Sale with the O. Ps. on 23/12/2013 with an intention to purchase a flat being No. I on the 3rd floor measuring more or less 805 sq. ft. super built up area for a consideration of Rs. 12,07,500/-. Complainant paid the entire consideration of Rs.12,07,500/-. It was written in the Agreement that the O. Ps. would hand over the scheduled flat within June 2014. Complainant states that the O. Ps. have completed the construction of the building but they did not hand over possession of his flat despite his repeated requests. Finding no other way to get possession of his desired flat complainant filed this instant complaint praying to refund Rs.12,07,500/- along with interest of Rs.7,24,500/-, litigation cost of Rs.50,000/- and other reliefs under the law.
Complainant submitted copies of (i) Agreement for Sale dated 23/12/2013 and (ii) two receipts of payments issued by O. P. – 3 company dated 23/12/2013 & 24/12/2013.
Notices were served, after admission, to the O. Ps. to appear before this Commission and to contest the case. O. Ps. – 1 & 2 appeared through their Ld. Advocate and subsequently filed their written version. Notices were also served upon the O. Ps. – 3 & 4 but both returned with note: ‘Item returned Addressee cannot be located’, for which complainant prayed for issuance of notice upon O. Ps. – 3 & 4 through news paper. Despite the notices were served upon the O. Ps. – 3 & 4 through daily news paper on 01/02/2020 they never appeared before this Commission though repeated opportunities were given to them till 29/01/2021 and ultimately the case proceeded ex parte against O. Ps. – 3 & 4. Thereafter complainant filed his Affidavit-In-Chief. Contesting O. Ps. – 1 & 2 did not file their questionnaire nor they have filed their evidence. So the case proceeded to the argument. Argument was heard from the complainant only as none of the OPs attended the argument. Now, we are going to deliver the final order in this case. We have to decide whether the O. Ps. are deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.
DECISION WITH REASONS
Let us begin our discussion with the ‘Agreement for Sale of a Flat’ dated 23/12/2013, annexed with the complaint, together with the statement of complaint petition. According to this agreement, (1) Sri Kashinath Chandra, (2) Sri Dinanath Chandra, (3) Sri Subhas Chandra, (4) Sri Paresh Nath Chandra, (5) Smt. Krishna Chandra, (6) Smt. Malati Chandra, (7) Smt. Lovely Das, (8) Smt. Sweeti Das, (9) Smt. Beuty Bhattacharjee and (10) Sri Biplab Chandra are the joint owners, cited as the Party of the First Part, of a plot of land measuring more or less 30 Cottahs of Sali land lying and situated at Mouza – Paruli, being J. L. No, - 03, R. S. No. – 79-1/2, being R. S. Dag No. – 2456 under Khatian No. – 958, Paraganas – Balia being Touzi No. 1523 by virtue of inheritance as this plot of land was purchased by their father Late Probodh Kumar Chandra in the year 1965 from the owner Sri Bhabendra Chandra Roy. They made a joint venture agreement for development of this land with M/s. S. P. Enterprise whose proprietor, Sri Ganesh Paul, became the constituted Attorney/Assignor. This Assignor then made a joint venture agreement with M/s. Swabhumi Real Estate India Ltd. on 26/07/2010 to develop the land due to paucity of their fund. So M/s. Swabhumi Real Estate India Ltd., represented by its Director Sri Ramesh Subudhi, became the Builder/Developer and got the absolute right to construct the building on its own cost, got the building plan sanctioned by the Maheshtala Municipality being No. 000523, dated 24/10/2011. Thereafter they made this sale agreement with the Purchaser/Complainant for selling a flat being No. – I on 3rd floor in Block – C in the above mentioned land measuring more or less 805 sq. ft. super built up area for a consideration of Rs.12,07,500/-. It was decided in this agreement that the developer/builder/O. P. – 3 would hand over possession of the flat to the purchaser/complainant on or before June 2014. A Memo of Consideration is annexed with this agreement which says that the purchaser has paid the entire consideration before signing this agreement. This agreement has been signed by the O. P. – 4 on behalf of O. P. – 3 as constituted attorney/builder. The Purchaser/Complainant has annexed copies of two money receipts issued by the O. P. – 3 company for payment of Rs.8,00,000/- on 23/12/2013 and for Rs.4,07,500/- on 24/12/2013, both payments have been made in cash. Besides these receipts and the agreement for sale, complainant has not placed any document before us to support his claim which could tell us that he repeatedly attempted to get his flat be registered in his favour and to give possession to him from 23/12/2013 to 18/06/2019, a long five and a half years, when he filed this case.
In their written version O. Ps. – 1 & 2 denied all the allegations made by the complainant stating that they have no involvement in this purchasing process. They have stated that the subject land has been developed according to their plan and almost all the flats were sold out and if the complainant were interested to get his flat in his possession then he should move accordingly. Even they claimed that the complainant might have the intention of money lending as he claimed interest Rs.7,24,500/- for his investment of Rs.12,07,500/-. O. Ps. - 1 & 2 have not filed any document in support of their statement. We have noted that in the Memo of Consideration of the sale agreement that receipt of Rs.12,07,500/- have been acknowledged but manner of payment has not been stated. From the Money Receipts we found that each payment of Rs.8,00,000/- & Rs.4,07,500/- has been made in cash which surprises us for such a huge cash transaction without inclusion of PAN details of the depositor/purchaser.
In his Affidavit-In-Chief complainant stated in Para-18 that O. P. – 2 is the Director of O. P. – 3 whereas in the Cause Title complainant himself stated that O. P. – 2 is the Proprietor of O. P. – 1 and O. P. – 4 is the Director of O. P. – 3. Moreover, in Para-19 in his AIC complainant stated that O. P. – 2 had every knowledge of the facts and he is the main person for such illegal acts. But complainant has not annexed any document further beyond those annexed with the complaint petition from which we can find any support of this statement as the agreement for sale as well as the money receipts told us the entire fact is revolving in between the complainant and the O. Ps. – 3 & 4. As the O. Ps. – 3 & 4 have not participated in this case we have no other alternative views in this case except the statements of the complainant together with its annexure and the written version of O. Ps. – 1 & 2.
So, considering all these aspects stated above we have no hesitation to say that both the complainant and the O. Ps. – 3 & 4 are deficient in performing their duties in accordance with the agreement for sale dated 23/12/2013. Complainant should have initiated his claim for possession of his flat together with its registration starting from June, 2014 and the O. Ps. – 3 & 4 should have the duty to take step for handing over the subject flat to the purchaser/complainant within June 2014 or immediately after this month as they have promised in the agreement. In our view, the O. Ps. – 3 & 4 should be directed to refund the entire sum the complainant paid. A simple interest @ 9% will be enough to compensate for breach of agreement and a litigation cost of Rs.8,000/- must be paid by the O. Ps. – 3 & 4 to the complainant for bringing this complaint to this Commission/Forum. As the complainant prayed for refund of his payments so the he should not get any relief from O. Ps. – 1 & 2 as the transaction was made with O. Ps. – 3 & 4.
Hence,
it is
ORDERED
That the Complaint Case No. CC/290/2019 is allowed on contest against O. Ps. – 1 & 2 and ex parte against the O. Ps. – 3 & 4.
The Opposite Party Nos. – 3 & 4 are directed to refund Rs.12,07,500/- together with simple interest at the rate of 9% per annum with effect from the date of last payment made by the Complainant up to the date of this order within 60 days from the date of this order. The O. Ps. – 3 & 4 are also directed to pay Rs.8,000/- to the Complaint within the aforesaid period as litigation cost, failing which the entire sum shall carry 9% interest per annum till full and final realisation.
