Date of filing : 29.06.2017
Judgment : Dt.8.4.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Renu Singh and Janifar Singh (1) Pailan alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Rana Bhattacharjee, (2) Smt. Usha Das, (3) Sri Khokan Das alias Ajit Das, (4) Sri Amit Das, (5) Smt. Anima Das and (6) Smt. Nilima Das.
Case of the Complainant, in brief, is that the Complainants, an intending purchaser of a flat to be constructed by OP No.1 (Developer) on a piece of land lying and situated at premises No.51, Purbachal Main Road, P.S.-Garfa, Kolkata – 700 078 owned by predecessor in interest of OP Nos.2 to 6 namely Anil Das (Since deceased), entered into an Agreement for Sale on 14.12.2016 with OP No.1 in respect of the said flat measuring about 750 sq.ft. being flat No.B.
The Complainants have stated that they were introduced to said land-owner through OP No.1 who by virtue of a Development Agreement executed by and between the OP No.1 and one Anil Das (Since deceased) and, accordingly, a Power of Attorney executed in favour of the OP No.1 was empowered to construct a building on the said premises and to receive payment and enter into agreement for sale in respect of the flats to be constructed. The Complainants have stated that out of agreed consideration amount of Rs.14,00,000/- out of which the Complainants paid Rs.7,50,000/- on the date of execution of Agreement for Sale and further amount of Rs.1,00,000/- was paid on 9.1.2017 and balance amount of consideration was to be paid in following schedule – Rs.2,00,000/- at the time of grill and paris work, Rs.2,00,000/- at the time of flooring, Rs.1,00,000/- at the time of electrical wiring and rest amount of Rs.50,000/- at the time of taking possession. It is further stated by the Complainant that all such work was to be completed within March, 2017 and failing which the OP Developer promised to pay Rs.4,000/- per month till handing over possession of the said flat but no such work of completion and finishing of the flat had been done within the stipulated period and even on receiving request from the end of the Complainant the OP did not complete his contractual obligation and subsequently the land owner Anil Kumar Das passed away and consequently the Power of Attorney executed by him in favour of OP No.1 had lost its force and on being intimated that the agreement stood cancelled the Complainant lodged a general diary before Garfa P.S. on 16.5.2017 and sent a letter to the OP No.1 on 19.5.2017 asking him to obtain fresh Power of Attorney from legal heirs of Anil Kumar Das since the Power of Attorney earlier executed by said Anil Das had been lapsed on the event of Death of said Anil Kumar Das but the OP No.1 replied the letter stating that registered Power of Attorney had not been lapsed with the death of the person granted power.
It is further stated by the Complainant that till the date of institution of the case the Developer neither completed the unfinished work nor did obtain occupancy certificate from the KMC. Moreover, the OP No.1 had been trying to sell out the flat in question to any third party and, therefore, the Complainant by filing the instant Consumer Complaint prayed for direction upon OPs to register the flat in question in favour of the Complainant and to hand over the possession, permanent injunction in respect of the flat in question, and further direction upon OPs to pay Rs.4,000/- per month as per Agreement dt.14.12.2016 till handing over possession of the said flat, to pay Rs.2,00,000/- towards compensation and Rs.20,000/- towards cost of litigation and other reliefs.
All the opposite parties contested the case by filing written version.
The OP No.1 by filing written version denied and disputed all the allegations made in the petition of complaint stating inter alia, that being approached by the Complainant the OP No.1 handed over all relevant papers such as title deed etc to the Complainant prior to execution of Agreement for Sale and as per Para 7 of the said Agreement for Sale the Complainant had to pay Rs.8,50,000/- as to part payment and balance consideration amount was to be paid by 5 installments and default in payment of installment would lead to cancellation of the Agreement for Sale and in that situation the intending purchaser would get deposited amount refunded after deduction of 20% of the deposited amount but the Complainant failed to pay the amount as per agreement for sale dt.14.12.2016 and OP No.1 vide letter dt.16.5.2017 requested the Complainants to comply the terms and conditions of the Agreement for Sale but to of no avail and the OP No.1 by Advocate’s letter dt.10.6.2017 informed the Complainant that due to non-payment of balance consideration as per agreement dt.14.12.2016 the said agreement stood cancelled. The Complainant receiving such information registered a Criminal Case against OP No.1 u/s 420/406. It is further stated by the OP No.1 that the Complainants compelled him to obtain fresh Power of Attorney from the legal heirs of the deceased Anil Kumar Das which was not actually required under the expressed provision of law and, moreover, the allegation of the Complainant regarding unfinished work is baseless. Accordingly, the OP No.1 has prayed for dismissal of the case.
Written version is also filed on behalf of OP Nos.2, 3 & 4. The OP Nos.2, 3 & 4 by filing written version has stated that they are ready to co-operate with the Complainant subject to fulfillment of the terms and condition of the agreement. These OPs have further stated that the OP No.1 had been violating the terms of Development Agreement by handing over possession to intending purchaser without handing over owner’s allocation to the owner and accordingly prayed for passing necessary order.
The OP Nos.5 & 6 by filing written version has denied all the averment made in the petition of complaint stating inter alia, that after demise of Anil Kumar Das these OPs including OP Nos.2, 3 & 4 several times requested the OP No.1 to accept registered power of attorney from the legal heirs of Anil Kumar Das i.e. OP Nos.2 to 6 herein and executed the same on 18.7.2017 to continue with the smooth functioning of development and they are no way liable for any deficiency and accordingly prays for dismissal of the case.
The Complainant adduced evidence in respect of which OP Nos.1, 2, 3 & 4 files questionnaire and the Complainants filed reply. Similarly, the OP Nos.1, 2, 3 & 4 filed evidence followed by questionnaire from the Complainant and reply thereto. The OP No.1 by filing evidence has further stated that the OP No.1 refunded deposited amount after deducting 20% of the deposited amount as per Agreement for sale to the Complainant by cheque being No.615873 dt.22.12.2017 which was duly received by the Complainant.
The Complainant annexed Development Agreement dt.7.10.2013, General Power of Attorney dt.7.10.2013, Agreement for Sale dt.14.12.2016, money receipts dt.14.12.2016, 9.1.2017, coy of complaint lodged with Garfa P.S. The OP no.1 filed letter dt.23.12.2017 and Power of Attorney dt.19.7.2017.
In course of argument Ld. Advocate on behalf of the Complainant has stated that the Complainants are ready to pay balance consideration amount but the claim of the OP regarding refund of deposited amount is baseless. No such amount has been received by the Complainant from the OP No.1 and the OP No.1 has never mentioned in his written version anything regarding refund of deposited amount.
The OP No.1 has submitted that the Consumer vis-à-vis the service provider relationship no more exist between the OP No.1 and the Complainant.
The OP No.1 placed reliance upon the decision of (1) Hon’ble Supreme Court reported in MANU/SC/0222/1968 in Civil Appeal No.644 of 1965 in [Seth Loon Karan Sethiya VS Ivan E. John and Ors] and (2) the High Court of Gujarat reported in MANU/GS/0085/2003 in Special Civil application No.9291 and 10359 of 2002 in [Bhagwanbhai Karamanbhai Bharvad VS Aryonagar Co-OP Housing Society Ltd. Ors. (b) reported in MANU/GJ/10742/1998 in [Her Highness Shantadevi Pratapsinh Rao Gaekward VS Savji Bhai H. Patel & Ors].
Points for determination
- Whether there is deficiency in providing service?
- Whether the Complainants are entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for comprehensive discussion and decision for the sake of convenience and in order to avoid repetition.
Admittedly, the Complainants entered into an Agreement for Sale on 14.12.2016 with OP No.1 in respect of a flat to be constructed by OP No.1 and paid Rs.8,50,000/- out of entire consideration of Rs.14,00,000/-.
In supprt of such contention , the Complainant filed photocoy of agreement dt. 14.12.2016 wherefrom it appears that the agreement was executed between the Complainant and the OP No.1 and an amount of Rs.8,50,000/- has been paid by the Complainant.
On perusal of said Agreement it appears that as per said agreement the OP was to handover possession of the said flat in March, 2017. It further appears from said agreement that balance consideration amount was to be paid on installments after completion of certain phases of works.
The Complainant has claimed that the Power of Attorney executed in favour of the Complainant automatically stood cancelled o n the event of the death of the executor of the Power. However, the OP denied the same.
It is claimed by the Complainant that in spite of receiving the said amount, the OP No.1 neither completed the construction work nor did register the Deed and handover possession of the flat within stipulated time. On the other hand, the OP No.1 has claimed that he has refunded the deposited amount to the Complainant vide cheque being No.615873. In this regard, the Complainants have denied to receive any amount and further stated that the said matter will be crystal clear if the OP No.1 brings the latest documents before this Forum but no such documents have been filed so far.
On perusal of documents on record, it appears that the OP No.1 filed written version on and the said cheque being No.615873 dt.22.12.2017 drawn on Corporation Bank which clearly indicates that the said cheque was issued after filing of this complaints even after filing affidavit in evidence by the Complainant. However the Complainant who denied the said event stating that they have not received the said amount OP has not substantiated the same by filing any document that the cheque was encashed and the amount was received by he Complainant. The OP No.1 claims to have refunded the amount, So, burden of proof lies upon him but in this regard OP No.1 have failed to discharge his burden of proof.
The Complainants have claimed that they have noticed that the construction work had not been completed within March, 2017. It appears from complaint dt.16.5.2017 lodged by the Complainants with Garfa P.S. that the Complainants requested the promoter to receive balance consideration amount after arranging the same by selling of their jewellery and ornaments. It further appears from letter dt.19.5.2017 issued from the end of the Complainant to OP No.1. that the Complainants were ready to pay balance consideration amounts to get possession of the said flat and registered the same in their favour. It appears from Advocate’s letter dt.10.6.2017 issued by Ld. Advocate for OP No.1 that the agreement for sale stood vacated for non-payment of balance consideration amount as per schedule of Agreement for Sale. However, on perusal of Clause No.7, we do not find any time schedule mentioned therein for payment of balance consideration amount. It is only mentioned in the payment schedule that certain amount would be paid after completion of certain phase of construction /finishing work. Had the time schedule been mentioned the Complainants might make payment on time. It is not clear whether the OP No.1 intimated the Complainants after completion of every phase of work mentioned in the Agreement for Sale. Furthermore, as per said agreement last installment was to be paid at the time of handing over possession but no such situation actually happened.
The OP No.1 claimed that he refunded the amount after deducting 20% by cheque to the Complainant on 23.12.2017.
The instant case has been instituted on 29.6.2017 after receiving intimation from OP No.12 regarding cancellation of agreement for sale.
It is observed no documents as to encashment of the claimed cheque by the Complainants has been produced before us. Therefore, it is held that no refund of paid consideration amount has been done by the OP No.1 to the Complainant.
Further, the OP Developer by citing the case laws as mentioned hereinabove, put much emphasis on the point that he holds a valid power of Attorney and there is no need to execute any Power of Attorney afresh in favour of him by the legal heirs of Anil Kumar Das (since deceased). Had it been so then what prevented the OP Developer to act in accordance with the terms of agreement for sale dt.14.12.2016.
In the light of the foregoing discussion, it is clear that the OP developer neither took any initiative to deliver the flat in question nor did refund the paid amount to the complaint which is an example of deficiency in service of the part of the OP developer.
Regarding prayer for registration of the deed of conveyance and handing over possession in favour of the Complainant, in our view this prayer deserves to be allowed.
As regards prayer for payment of Rs.4,000/- per month and compensation to the tune of Rs.2,00,000/-, we do not find any ground to allow the same.
As regards payment of litigation cost, in our view the OP No.1 compelled the Complainant to file the instant case and, therefore, liable to pay cost of Rs.10,000/-.
In the result, the Consumer complaint succeeds in part.
Hence
ordered
That CC/353/2017 is allowed on contest with cost. The OPs are directed to execute and register the deed of conveyance and handover possession of the flat in question in favour of the Complainant within two months from the date of this order on receiving balance consideration amount from the Complainant.
The OP No.1 is further directed to pay Rs.10,000/- towards cost of litigation within aforesaid period.
