Sri Partha Kumar Basu, Member (Commission)
This complaint petition u/s 35 of the Consumer Protection Act’ 2019 is at the instance of the Complainants namely Mr. Debadri Roy s/o Timir Kumar Roy of Maheshtola, Kolkata 700141 and Mrs Averi Roy w/o Debadri Roy of Sonarpur, Kolkata 700150 against the OPsposite parties Realmark Oracle Projects LLP, 209 AJC Bose Road, Karnani Estate , 4th floor, Room no 170B, PS :Beniapukur, Kolkata 700017 (OP1) and Mr. Gagan Lohia (OP2) working for gain at the aforesaid company for alleged deficiency in services on the part of the OPsposite parties in a consumer dispute of housing construction.
The case of the complainant as adduced by evidence is that the OP Company was to construct a G+4 new building at the schedule premises comprising of flat units, car parking space etc. at municipal holding no 460 N.S.Road, ward no 26 under Rajpur Sonarpur Municipality, South 24 Parganas, West Bengal. The scheduled property is a residential flat bearing number 5D (5th floor) admeasuring about 1361 SFT SBU alongwith one car parking space and the undivided proportionate share of land beneath the said building
The complainant wanted to purchase a residential flat and so entered into an agreement on 03.01.2019 with the OPs against a consideration money of Rs.53,96,742/-. A sum of 20% was paid by the complainant to the OPs as consideration money and another sum of Rs. 48,67,805/- was transferred by the banker of the complainant to OPs. The complainant stated in their complaint petition on affidavit that by an email dated 12.03.2021, thereafter, the complainant ‘requested the OPs to guide them in their harsh situation whether they should to sell the said flat or would avail some other schemes which could be provided by the Opposite parties’. But after three months the OPs issued a letter dated 19.06.2021 to the complainant accepting the proposal of the complainant and cancelled the said flat booking with a mention that the advanced amount would be refunded after deduction of cancellation charges. The case of the complainant is that they never asked for the cancellation of their booking and it was a malafide intention of the OPs as after a lapse of three months they cancelled the said booking by termination of agreement unilaterally in violation of the terms of the agreement. By a letter dated 19.06.2021 and legal notice dated 17.08.2021, the complainant informed the OPs that they never requested to return back the advanced money that had already been transferred to OPs in respect of said flat and also requested the OPs for execution of deed of conveyance. But the OPs did not take any step in getting the said flat registered in favour of the complainant. Rather the OPs by an email dated 06.08.2021 stated the said sale agreement dated 03.01.2019 had already been cancelled and ceased to be operative and as such there is no question of registration of the said flat. In this regard, all the requests and persuasions of the complainant went in vein. As per complainant the OPs neither have the power to revoke or terminate the sales agreement dated 03.01.2019 by virtue of such communication dated 19.06.2021 nor to neglect to register the deed of conveyance since in terms of the Cl no 11.1 of the said agreement dated 03.01.2019 such termination, that too with one month advance notice from OPs, can be effected only in case of non-payment of dues by the purchaser (complainant herein) which is not a case herein having paid off 21 instalments duly. The complainant further submitted that the OPs sent another letter dated 23.08.2021 to complainant intimating that an amount of Rs.37,88,457/- had been refunded to the banker of the complainant and another sum of Rs.5,97,496/- been refunded to the complainant after deducting 10% of the sales agreement value.
Hence, the complainant approached this Commission with a prayer for a relief inter-alia to pass an order to give direction upon the OPs either to handover vacant possession of the said flat property and execute deed of conveyance or to pay bank interest on Rs.55,71,742/- alongwith a compensation of Rs.1,50,000/- for the harassment and mental agony plus litigation cost as the OPs failed to provide service in favour of the complainant The list of documents that has been relied upon are exhibited as per running page number 13 to 72 consisting Agreement for sale, email dated 12.03.2021, statement of loan account, reply of OPSs dated 19.06.2021 accepting purported cancellation request, email from OPs dated 06.08.2021, legal notice dated 17.08.2021, reply of OPs dated 23.08.2021 and copy of order dated 06.12.2021 from DCDRC Kolkata III on territorial jurisdiction of the complaint case.
The OPs on the other hand denied all the allegations in their W/V and adduced Evidence and BNA. OPs denied having any deficiency in service and claimed having given already a refund of Rs. 37,88,457/- through complainant’s bank and Rs.5.97,496/- to complainant after a deduction of 10% of the sale agreement value in terms of Cl 11 (1) of the said agreement dated 03.01.2019 .OPs also contested about complainant being a consumer as per CP Act 2019 due to the reasons that the complainant tried to purchase the flat for commercial purpose as per Annexure B – running page 47 exhibited by complainant. The main contention of the OPs is that the complainants themselves refused to take the services of the OPs vide email dated 12.03.2021 and paid Rs.48,67,805/- out of total consideration money for Rs. 53,96,742/- keeping the balance money pending for payment. OPs also contended that they are free to cancel the agreement under circumstances stated in Cl 11 (1) of the sale agreement.
The complaint case was contested by both parties supported by evidence on affidavits and exhibits. The submissions made by the both side Ld. Advocates were heard and materials on record and BNA were scrutinised. The OPS filed written version and both the sides availed the opportunity to file Questionnaires, touching upon the evidence filed by other side.
Now following are the Points of consideration :-
- Is the complainant a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice ?
- Is the complainant entitled to get reliefs as prayed for?
Decisions with reasoning :
Point No. 1:
On perusal of the case record along with the copies of documents it appears that the OP company was in the process of developing a G+4 building consisting flat units, car parking spaces and facilities on a piece of plot and the complainants intended to take the services of the OP company cum developer to purchase the scheduled flat as per complaint petition for a consideration amount of Rs.53,96,742/- including GST (Rupees Fifty Three Lac Ninety Six Thousand Seven Hundred and Forty Two) only for which an agreement for sale dated 03.01.2019 has been executed by and between the parties and payment has been made by the complainant to the OPs who acknowledged receipt of the same.
Therefore, the complainant is a consumer as defined under Section 2(7) of the Consumer Protection Act, 2019. As such Point No. 1 is decided in favour of the complainant and against the O.Ps.
Point No. 2 & 3
Both the points are taken up together for the sake of brevity and to avoid repetition.
On perusal of the petition of complaint, WV and the evidences on record, it transpires that the OPSs were going to construct a G+4 housing comprising of flat units, car parking space, facilities etc. The complainant and the Opposite parties entered into an agreement on 03.01.2019 and by this agreement the complainant booked one flat with right to use a car parking space. It also appears that at that time of the booking of the said flat the complainant paid consideration money, EMIs through their banker and direct payments to the OP company as per exhibits.
It is not in dispute that the OPS has not done the flat construction or not received the amounts as per schedule of sales agreement. But the one and only dispute centres around alleged cancellation of the sale agreement by the OP without clearance from the purchasers cum complainants and denial thereof by the OPs claiming to have informed consent of the complainants as per their email dated 12.03.2021, which is quoted below :
“Myself Debadri Roy and Averi Roy wanted to inform you that we had booked a flat in Realmark Oracle. The flat no. is 5D. due to some unavoidable circumstances we want to sell the flat. It was a very hard decision for us to take but at these moment we have no other choice. For these reasons we need your help and we request you to please guide us. We will be waiting for your reply”
Interpretation of this purported email dated 12.03.2021 has yielded all the controversy and as such the matter was adverted with support of other relevant documents. A careful examination of the exhibits of both sides would reveal that the sales agreement dated 03.01.2019 contains ‘termination clause’ as per para 11.1 which states in it’s second para & also in the Cl no. 8.4.2 of the sales agreement that depicts that the ‘cancellation clause' as below :-
“in case the purchaser commits default in making payment of consideration mentioned herein or in observing the covenants herein within time then in such event, , the developer shall give one month’s notice in writing to the purchaser setting out the default of breach complained of and calling upon the purchaser to remedy the default or breach complained of and if on expiry of such notice the purchaser continues to default or breach, then this agreement shall at the option of the developer stand terminated and rescinded and also if the purchaser wishes to cancel and / or withdraw from the agreement of his own volition. then in both such events the developer shall become entitled to enjoy and/or transfer the said unit and the car parking space to any person without in any way becoming liable to the purchaser and upon the developer having entered into a contract for sale of the said unit and the car parking space with any new buyer or buyers, only thereafter the developer shall refund to the purchaser the earnest money paid by the purchaser to the developer after deduction of a sum equivalent to 10% (ten percent) of the consideration as and by way of pre-determined compensation/liquidated damages or service charges”
In the case in hand, neither the complainant defaulted in payment nor the sale agreement was rescinded nor any notice was served by OPs so that the contract is rendered null and void and no longer becomes legally binding on either party. Rescission can occur due to various reasons including applicable circumstances so that it can be freed to non-liable parties from their agreed obligations so as to restore them to the position they were in before the contract was signed. But there is no document in support of this contention available on record. The only document, therefore, is available to render support to the stand taken by the OPs for cancellation is the email of complainants dated 12.03.2021. But the said email is grossly insufficient to determine the complainants’ intention, in clear terms, as interpreted by the OPs. This is more so, as because as per the defence exhibit letter dated 11.04.2019 the OPs were very much conspicuous in insisting the complainants for registration of the sale agreement during flat booking process but on the other hand never took steps to follow proper process to rescind the same agreement or to serve notice to complainants equivalent, while envisaging cancellation or rescinding the contract.
Therefore considering the facts and circumstances and materials on record it is palpably clear that the OPs did not follow proper process to cancel the sales agreement and refrained from taking steps to give effect of the same without clear consent of the complainants and also penalised the complainants by deducting 10% cancellation charge in violation of the terms of sale agreement. Hence the OPs are found to be deficient in rendering services towards the consumers.
In view of the above, the complaint case partly succeeds and the complainants are entitled to get refund of the amount deducted OPs as cancellation charges @ 10 % of consideration money along with appropriate compensation in the form of interest for the financial loss and for mental agony and harassment suffered by them on account of the failure of the OPs. We hold that there is deficiency in service on the part of the Opposite parties in the matter of not giving delivery of possession of the property and executing deed of conveyance as per terms and conditions of the sale agreement. In result, the Complaint case succeeds.
Hence, it is Ordered :-
Ordered
That the complaint case no. CC/157/2021 be and the same is allowed on contest against the OPs. The OPs are hereby directed to refund the amount equivalent to the cancellation charges @ 10% which they held back/deducted from the complainants’ account, along with a compensation in the form of simple interest @ 8% per annum on the entire amount which the OPs received from complainants and their banker originally, with effect from 19.06.2021 i.e. date of reminder letter from complainants. GST, deposited if any meanwhile, to be absorbed by the OPs.
The OPs are also directed to pay Rs. 10,000/- (Rupees Ten Thousand) only to the complainant as cost of litigation.
Compliance the above order will be made The payment in terms of this order shall be made within two months from this day.
If the Opposite parties fail to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.
Let a plain copy of this Order be provided to both the parties free of cost as per CPR.
