FINAL ORDER/JUDGEMENT

SMT. SAHANA  AHMED  BASU, MEMBER.  

The case of the complainant in a nutshell is that the complainant was introduced to OP1 through an agent to purchase a flat from the OP1, who claimed to be the owner of the said flat.  They mutually agreed regarding the consideration price of RS. 35,00,000/- of the said flat and an amount of Rs. 1,00,000/- paid by the complainant as  advance in favor of the OP1 on 01.11,2017 and an Agreement For Sale is executed by and/or between the parties on the same date . After that the complainant approached to OP2 for availing a financial assistance for completion of the transaction . In course thereof , the complainant demanded for all the relevant documents to OP1 and the Op1 agreed to hand over the remaining documents directly to OP2 as early as possible . But on 19.01.2018 the OP2 verbally informed the complainant that they have arrived at a legal opinion that , the required loan cannot be sanctioned in favor of the complainant as the OP1 could not supply the original documents as required . Then the complainant sent several emails to the OP2 to know the status of the loan , but no written update was given by the OP2. In this circumstances the complainant on his own motion applied for the certified copy the relevant documents from which it surfaced that the said property has been leased out long ago rendering the said property to be defective as encumbered and thus, not having good and marketable title . As a result the complainant treated the agreement for sale dated 01.11.2017 to be rescinded/cancelled and demanded the refund of advanced money amounting of Rs.1,00,000/- from the OP1. The Op1 refunded Rs.70,000/- on 28.04.2018 and an amount of Rs.30,000/- has remained to be accrued on the part of the OP1. In spite of repeated demand of the complainant the OP1 failed to comply the same . The complainant issued a legal notice on 05.07.2018 to OP1 the same was received by the OP1 . But the OP1 has not initiated any step to redress the grievances of the complainant. Finding no other option the complainant take refuge to this Ld. Commission.

OP1 did not turn up to contest the case and defend her side and the case did proceed ex-parte against OP1.

OP2 failed to file W.V. within the stipulated period due to pandemic situation and filed the same on 08.01.2021 with the prayer to accept W/V and it was accepted as per Hon’ble Supreme Court directives.

We have heard the Ld. Advocates of both sides. Perused all the documents on record coupled with annexures thereto and have given our thoughtful consideration to the contention.

Despite service of notice the OP1 remained unturned and this gesture of the OP1 does not appear as good gesture at all. Therefore, the case did proceed ex-parte against the OP1. Without any controverting documents on the part of the OP1 we have to rely upon the evidences furnished by the complainant.

On receipt of notice on 13.02.2020,  the OP2 appeared on 13.03.2020 with a prayer for time to file W/V. but  failed to file same within the statutory period and  the case was posted on  ex-parte board against OP2. The OP2 filed a petition being registered as MA/08/2021 with a prayer to pass an order for filing W/V and vacating the case from ex-parte board. As per order passed by the Hon’ble

Supreme Court on the background of pandemic situation, this Ld. Commission allowed the prayer of  OP2 and the same was filed on 15.02.2021 by the OP2.

The complainant and the OP2 both have furnished evidences on affidavit and submitted BNA as per C.P. regulations.

We find that the complainant met the OP1 through a broker , namely Khokan Mondal, for purchasing a flat from the OP1 who claimed herself to be the owner of the property situated at Indraprastha Apartment , IB, Natore Park First Road , flat NO.204 , P.S. Kasba , Kolkata 700039 for the price Rs.35,00,000/-. The fact remains that, an Agreement For Sale was executed on or about  01.11.2017 between the parties and the complainant as we see had appropriated a sum of RS. !,000,000/- by way of an A/C payee cheque bearing no .1510005 dated 01.11.2017 drawn on ICICI Bank , Ballygunge  Branch , Kolkata 700019 in favor of OP1. We have also perused that it is mentioned in theclause 4 of the aforesaid agreement that ,the vendor hereby at the time of execution of this agreement delivers all the photocopies of the documents in respect of the said property  to the purchaser for his verification and shall also handover the vacant and peaceful possession of the said property together with all original documents to the purchaser . But the OP1 failed to supply the required documents regarding the said property and also failed to  fulfil the condition of the said agreement on repeated requests of the complainant . Moreover the complainant alleged that the OP2 verbally intimated the complainant that his loan application cannot be sanctioned as the required documents is not supplied by the OP1 . When on his own interest the complainant applied for certified copies of the relevant documents it surfaced that the said property has been leased out long ago rendering the said property to be defective as encumbered and thus , not having good and marketable title  . Then the complainant treated the agreement dated 01.11.2017 cancelled an demanded the refund of money amounting Rs.1,00,000/- in terms of clause10 of the said agreement in which it is clearly mentioned  that -

It is agreed by the parties that if the title of the property is found to be not good and marketable then the purchaser has the absolute liberty to cancel this agreement for sale and subsequently the vendor shall be liable to refund back the entire advance money to the purchaser on his demand .

Admittedly the OP1 refunded R. 70,000/- to the complainant vide Cheque No. 007448 dated 28.04.2018 drawn on Oriental Bank of Commerce , Asutosh Chowdhury Avenue ,  Kolkata 700019 being part of admitted dues  . In spite of repeated requests ,persuasions , reminders balance amount of Rs.30,000/- has remained to be accrued on the part of the OP1. This act of the OP1 appears as a  gesture of unfair trade practice to us .

The OP2 contested the case by filing W/V contending inter alia that the case is misconceived ,not maintainable  and bad for miss-joinder of parties .Ld. Advocate for the OP2 submitted that the instant case as filed by the complainant  is based only on the transaction transpired by and between the complainant and OP1 and OP2 not in any way concerned with OP2. The complainant had approached to OP2 in the month of December 2017 for availing housing loan . on perusing the photocopies of the title documents submitted by the complainant certain queries is raised by the Ld. Advocate of the OP2 and OP2 sought clarifications and other documents from the complainant through mails . But the Complainant failed to satisfy the said queries / clarifications  and also failed to produce Deeds and Documents as sought from the complainant . In view of the aforesaid failure the OP2 could not process the housing loan. OP2 has denied the allegation made by the complainant that it has verbally informed the complainant that they have arrived at a legal opinion that the required loan cannot be proceeded to be sanctioned in favor of the complainant , whereas the true fact is that process of obtaining legal opinion for the property  proposed to be purchased by the complainant could not be proceeded further by the OP2  for the reason of non-submission of required documents and not satisfaction of queries/clarifications as required by the OP2 .The complainant submitted that due to mala fide intention of the OP1 the required documents could not be produced to the OP2.  It is also needed to be mentioned that the complainant does not seek any relief against OP2.

On the background of above facts and on perusal of the matter carefully, we think that there was no deficiency in service on the part of the OP2.

As such, we are of the opinion that the fault is lies on the part of the OP1 and not on the OP2. However, we refrain from passing any award for the entire sum of Rs.3,80,000/- as claimed by the complainant .

Consequently, the case merits success in part.

Hence,

Ordered

That the instant case be and the same is allowed on ex-parte against OP1 with cost of Rs.15,000/- and dismissed on contest against OP2.

OP1 is directed to refund remaining balance of an amount of Rs.30,000/- to the complainant within 30 days from the date of order.

OP1 is also directed  to pay an amount of 25000/- to the complainant as compensation for causing mental agony and harassment within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.