FINAL ORDER/JUDGMENT
Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainants that the complainants entered into an agreement on 19-12-2012 for purchase of a flat (A2) in the second floor and a garage (car parking space) in the ground floor at a consideration of Rs. 24,26,625/- for flat and Rs. 2,25,000/- for garage/car parking space and as per terms of the agreement the opposite parties have registered the flat in favour of the complainants on 11-07-2013 vide registered deed being no. 2084/2013 and have delivered possession of the flat and the garage lying to the front middle portion, being no. 2 in the ground floor on the same date and the complainants purchased the properties by procuring loan from SBI, Mankundu Branch, for the purchase of the said flat and garage. and the complainants tendered a sum of Rs. 25,000/- for purchase of the garage vide cheque dt. 11- 07-2013 of Axis Bank, Chandannagore Branch.
The complainants also state that ever since after payment of balance consideration after registration of the flat the complainants repeatedly verbally requested the opposite parties to complete the sale of the garage so that they can obtain the remaining loan from the Bank after keeping in deposit the sale deed of garage but the opposite parties dilly dialed in the matter and ultimately told the complainants that they have some difference of opinion amongst partners and assured them that the deed would be executed soon and on December 2016 while receiving statement from the Bank for the concerned loan account, the complainants learnt that they are losing huge amount inasmuch as although they have been sanctioned the entire amount for purchase of flat and garage after deducting the processing charges, but they have been disbursed proportionately the cost of flat only after keeping aside the cost of garage and that they pay EMI for the amount disburse and unless they avail the entire amount they have to bear the burden of paying huge Banking interests which is not commendable.
The complainants also state that on getting knowledge about the fact the complainants again requested the opposite parties over telephone on 25-12-2016 for taking necessary steps for registration of the garage after accepting the balance consideration money of Rs. 2,00,000/- but the opposite parties did not heed to the request and since 2013 the complainants ready and willing to get the deed executed and registered by the opposite parties on receipt of the balance consideration money which will be disbursed by the Bank but the same is not possible owing to the recalcitrant attitude of the opposite parties and ultimately on 1-02- 2017 the opposite party no. 2 visited the complainants and on that also the complainants finally requested the opposite party for performing their part of the contract but on that day said opposite party illegally claimed from the complainants as additional sum of Rs. 1,00,000/- towards registration of the garage which is illegal and arbitrary.
The complainants also state that they issued a notice through their duly authorized Advocate stating the grievances and requesting the opposite party nos. 1 to 3 to execute and register the deed of sale of the garage and the opposite party nos. 1 to 3 have neither sent any reply stating the reasons for not complying with it nor have made any attempt to comply with the request and they took a flat and a garage. So, the complainants were compelled to file a case against the opposite party nos. 1 to 3 before the Ld. DCDRF, Hooghly being C.C. case no. 173 of 2017 and during the pendency of the case , the SBI, Mankundu Branch sent a letter to the complainants dt. 18.2.2018 requesting them to resolve the mater of pending of the registration of the sale deed of garage as because the final disbursement of the loan amount is pending with the bank beyond the permissible time frame. After proceedings of almost 3 years, the ld. Forum was pleased to pass an order dt. 20.2.2020 that the ld. Forum has no pecuniary jurisdiction to entertain the case and has given liberty to file the case in appropriate Forum without changing the nature and character of the complaint
The cause of action arose firstly in March 2014 when the opposite parties disclosed that owing to some differences of opinion they are unable to register the deed for sale of garage for the time being and then on 25.12.2016 when they finally requested for registration of the deed and thereafter on 1.2.2017 when the opposite parties demanded extra amount for registration the deed for the garage and lastly on 11.5.2017 when deposit receipt of the notice and expiry of the time stipulated therein the opposite parties failed to comply and is continuing day to day thereafter.
Complainant filed the complaint petition praying for direction upon the opposite party nos. 1 to 3 to arrange, to accept the balance consideration money and to register the deed in respect of the garage in favour of the complainants within a stipulated time by fixing any date or otherwise and to appoint any court officer and/or Commissioner to register the deed on behalf of the opposite parties in case they fail to comply and to pay sum of Rs. 50,000/- for harassment, deficiency of service all these years and to pay a sum of Rs. 10,000/- for litigation costs and to pass any further order/ orders of relief/ reliefs in favour of the complainants as deems fit and proper.
The opposite party nos. 1 to 3 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. These opposite parties submits that on 19.12.2012 they executed a Deed of Agreement for sale of a residential flat and also a garage in favour of the complainants and at the same time of execution of the said Agreement for sale in the name of the complainants herein the consideration price of the residential flat has been fixed @ Rs. 22,01,625/- only and total consideration price of the garage has been fixed @ Rs. 2,25,000/- only and total consideration price of the flat and garage of Rs. 24,26,625/- and on the day of execution of the said agreement for sale the complainants herein paid a sum of Rs. 3,67,743/- only to Developer company and in accordance with the terms of the agreement for sale dt. 19.12.2012 the complainants herein did not purchase the Garage property as because on 9.7.2013 the vendors and the developer (opposite party nos. 1 and 3) executed and registered a deed of sale comprising the Flat being no. A-2 on the second floor of the said building and they paid a sum of Rs.17,75,882/- only by bankers draft being no. 954171 dt. 9.7.2013 of SBI, Mankundu Branch and Rs. 3,750/- only by cash and remaining amount of Rs. 3,67,743/- by cash and also by cheque and which amount was given by the complainants at the time of execution of agreement for sale and thus, the complainant paid a sum of Rs. 22,01,625/- for the purchase of residential flat in the names of the complainant herein.
These opposite party nos. 1 to 3 also submit that apart from said residential flat the vendors and the developer (opposite party nos. 1 and 3) executed and registered the flat in favour of the complainants on 11.7.2013 and they paid the entire amount of the said shop room and on 11.7.2013 the complainants paid or the opposite parties or any men of the opposite parties' received a sum of Rs. 25,000/- only by way of cheque on SBI for the purchase of garage and on 19.12.2012 the opposite parties executed a deed of agreement for sale of a residential flat and also a garage in favour of the complainants and at the same time complainants fixed Rs. 22,01,625/- only and total consideration price of the garage has been fixed of Rs. 2,25,000/- only and total consideration price of flat and garage of Rs. 24,26,625/- only and on the day of execution of the said agreement for sale the complainants paid a sum of Rs. 3,67,743/- only. According to the agreement for sale dt. 19.12.2012 the complainants did not purchase the garage property as because the opposite parties executed and registered a deed of sale comprising the flat being no. A-2 on the second floor of the said building and they paid a sum of Rs. 17,75,882/- only by bankers draft and Rs. 3750/- only by cash and remaining amount of Rs. 3,67,743/- only by cash and also by cheque. Thus, the complainant paid Rs. 22,01,625/- only for the purchase of residential flat. On 11.7.2013 apart from said residential flat the opposite parties executed and registered a commercial place/ shop room in the name of the mother of the complainant no. 1 and wife of the complainant no. 2 and mother of the complainant no. 1 paid the entire amount of the said shop room to them.
On 9.7.2013 or subsequently till date the complainants never paid any amount to the vendors or developers for the purchase of garage and the complainants do not have any intention at the material point of time to purchase the garage and after execution and registration of the said residential flat and shop room the complainants got the possession of the same and sometimes in second weeks of February 2017 the complainants requested the opposite parties to use the open garage of the apartment for few days but neither the vendors nor the developers agreed the proposal of the complainants and the opposite parties requested the complainants that they have no right to give the said garage for their use as because they delivered the said garage to other third party and on 1.2.2017 neither the complainants came nor any request to the opposite parties for performing their part of contract or the opposite parties illegally claimed additional sum of Rs. 1,00,000/- from the complainants and no notice was served upon the opposite parties and the said notice purported to have been served is illegal, insufficient and inoperative and the complainants never spend any amount to purchase the garage. Actually the complainants intentionally and deliberately filed the instant case only to harass the opposite parties so, this case is liable to be dismissed with cost.
Evidence on record
The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
Argument highlighted by the ld. Lawyers of the parties
Complainants have filed written notes of argument. As per BNA of complainants shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of the complainant at length. In course of argument ld. Lawyer of the complainant has given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainants are the consumer?
- Whether there is any cause of action to institute the instant proceeding?
- Whether the proceeding is suffering from the point of limitation?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.
Issue nos.2 &3:
Both the issues being interlinked with each other have been taken up together for disposal. It appears from the petition of the complaint that the cause of action arose firstly in March 2014 when the opposite parties disclosed that owing to some differences of opinion they are unable to register the deed for sale of garage for the time being and then on 25.12.2016 when they finally requested for registration of the deed and thereafter on 1.2.2017 when the opposite parties demanded extra amount for registration the deed for the garage and lastly on 11.5.2017 when deposit receipt of the notice and expiry of the time stipulated therein the opposite parties failed to comply. On minutely perusal of the petition of the complaint, it is also found that on the basis of the said cause of action which was continuing then, one petition of complaint was filed the same complainants against the same opposite parties on the same said subject matter before this Commission being numbered as C.C. case no. 173 of 2017 which has been disposed of vide order dated 20.02.2020. It is on record that vide order dated 20.02.2020, the complainants were given liberty to file the case in appropriate Forum without changing the nature and character of the complaint.
In view of the aforesaid facts and circumstances, when the present complaint and the prayer made therein are looked into together with the cause of action for which the prayer and/or relief clamed for by the complainants in the present petition of complaint, it is found that the cause of action arose for the present petition of complaint also lastly on 11.5.2017 whereas the present petition of complaint has been filed on 10.11.2020 by the complainants herein. In the decision reported in (1998) 6 SCC 514 passed in the case of Sadanandan Bhadran vs. Madhavan Sunil Kumar, Hon’ble Supreme Court has been pleased to observe that cause of action means every fact, which it is necessary to support a right or obtain a judgment. Cause of action gives occasion for and forms the foundation of the suit. On consideration of the aforesaid discussion, it is concluded that the cause of action arose for the complainants to get relief as prayed for is beyond the statutory period as laid down in the Consumer Protection Act as amended till date.
Hence both the issues are disposed of accordingly.
Issue nos. 4, 5 & 6:
As the issue nos. 2 and 3 have been decided in negative against the complainants and therefore no further discussion for the instant issues is required.
In the result, it is accordingly
ordered
that the complaint case being no. 79 of 2020 be and the same stands dismissed with no order as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
