Dt. of filing – 10/01/2018
Dt. of Judgement – 19/03/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the Complainant Anit Bose against the Opposite Parties namely 1) Samir Das 2) Rudram Banerjee 3) Anirban Sengupta 4) Nripendra Nath Adhikary and 5) Bimal Halder alleging deficiency in rendering service on their part.
Complainant’s case in brief is that Opposite Party Nos.1 to 3 are engaged in the business of development and construction and Opposite Party No. 4 & 5 are the joint owners of the land measuring an area of 3 Cottahs together with structure thereon at premises no.664, Mouza Kalikapur, J.L. no.20, R.S Dag no.375(P) under Purba Jadavpur,Police Station. They entered into development agreement to raise a multistoried building. The Complainant was looking for a residential flat for his own residence and on being represented by the developer/Opposite Party Nos.1 to 3, he entered into an agreement for sale dated 12/2/2014 to purchase a flat measuring an area of 700 Sq ft at a total consideration price of Rs.8,00,000/- . The Complainant had paid an amount of Rs.1,25,000/- as booking amount before signing of the of the agreement for sale dated 12/2/2014. Complainant thereafter has paid an amount of Rs.5,25,000/- time to time to the developers and thus paid total sum of Rs.7,00,000/- out of the total consideration price of Rs.8,00,000/-. It was agreed that remaining amount of Rs.1,00,000/- would be paid at the time of handing over of the possession. Opposite Parties till the beginning of the year 2015 did not complete the work as per the stipulated time. They gave assurance that they would complete the construction by October, 2016. But in November, 2016 when Complainant visited the said premises was shocked to see that the flat purchased by him was handed over to a third party. On enquiry it was learnt that the said flat has been sold by the developers to the said third party. So Complainant asked the developers to return the amount paid by him but they paid no heed. Complaint was also lodged by the Complainant at Tiljola Police Station for cheating and criminal breach of trust against the Opposite Parties. So as the Opposite Parties have neither handed over the flat nor have refunded the money to the Complainant, present complaint is filed by the Complainant for directing the Opposite Party Nos. 1 to 3 to deliver vacant and peaceful possession of flat equivalent to the one booked, to execute and register Deed of Conveyance, to refund the said amount of Rs.7,00,000/- paid by the Complainant along with interest @ 18% from the date of receipt of such amount and to pay compensation of Rs.4,00,000/- and Rs.2,00,000/- as punitive damages and Rs.1,00,000/- towards litigation cost.
Complainant has filed along with the complaint, copy of the development agreement entered into between the Opposite Parties dated 17/1/2014, copy of the agreement for sale entered into between the Complainant and the Opposite Parties dated 12/2/2014, copy of another agreement for sale dated 12/2/2014 entered into between wife of the present Complainant and the Opposite Parties, copy of the FIR lodged by the Complainant at Tiljola Police Station on 12/12/2016 and the copy of the power of attorney executed by the Opposite Party Nos.4 to 5 in favour of the developers.
Complaint is contested by the Opposite Party Nos.1 to 3 by filing written version denying the allegations made against them in the petition of complaint. It is the specific case of the Opposite Parties that the Complainant as a financier invested money in the schedule flat on the top floor of the building and another flat on the first floor in the name of his wife not for use of the same for their residential purpose but for the use of the said two flats for investment/commercial purpose.
It is the further case that due to old and good relationship between the Complainant and the Opposite Parties. Complainant has agreed to invest his money in the said housing project and entered into agreement on 12/2/2014 in respect of flat which is simplicitor a lien (security for invested money). So the Complainant paid Rs.7,00,000/- and further another amount of Rs.7,00,000/- in the name of his wife. It is the further case of the of Opposite Parties that the consideration price of Rs.8,00,000/- towards 700 Sq ft as agreed if accepted, then the rate of flat per sq ft comes to Rs.1,143/- which is impossible and absurd. The possession of the flat has been handed over to a person with the consent of the Complainant with an intention to sale and transfer the same at a price of Rs.16 lakhs and out of the sale proceed of the said flat, the Opposite Parties have adjusted sum of Rs.5,00,000/- towards further investment of the said amount for one another flat at premises no. B/5, Ganga Nagar P.S. Purba Jadavpur by an agreement dated 26/12/2015. Complainant is not a consumer and if there is any dispute, only Civil Court has the jurisdiction to adjudicate the same. So Opposite Parties have prayed for dismissal of the complaint. They have also filed copy of the agreement for sale dated 26/12/2015 and copy of the valuation of the same as per present market value.
During the course of the evidence both the parties have adduced evidence by filing affidavit-in-chief followed by filing of questionnaire and reply thereto.
Argument has also been advanced by both the respective parties and they have also filed written notes of argument supporting their respective claims.
So the following points require determination:
- Whether the Complainant is a consumer under the provision of Consumer Protection Act?
- Whether there has been any deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1
It has been contended by the Opposite Parties that the present Complainant is not a consumer as he had invested money towards flats for commercial purpose. It is argued that apparently Complainant has booked two flats on the same day and another flat by an agreement dated 26/12/2015. So the purchase of the flat is nothing but for commercial purpose.
In this context it may be pertinent to point out that apparently Complainant had entered into an agreement for purchase of flat in his name on 12/2/2014 and another flat in the name of his wife on the same date. However, so far as the agreement as referred to by the Opposite Parties dated 26/12/2015 has been disputed by the Complainant. Be that as it may, apparently Complainant entered into an agreement for purchasing of two flats respectively in his name and in the name of his wife, So question is purchasing of two flats by itself will amount to purchase for commercial purpose? This aspect came into consideration before the Hon’ble National Commission in the case of Poonam Aggarwal Vs Gujral Associates and Others, wherein it has been held “unless there has been evidence on record that the Complainant was engaged in the business of selling and purchasing properties on a regular basis, it would not be proper to classify such acquisition as a commercial activity merely on the basis of number of units booked by such person”.
In the said above mentioned case law, the decision of ‘Kavita Ahuja Vs Shipra Estate Ltd and allied has also been referred wherein also it has been held that “ in the case of projects of houses which the service provider undertakes to construct for purchaser, the purchase can be said to be for commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and/or plots as a regular basis, solely with a view to make profit by sale of such houses. If however, the houses to be constructed by the service provider is purchased by him purely as a investment and he is not undertaking the trading of houses on a regular basis and in the normal course of business profession or service he is engaged, it would be difficult to say that he had purchased house for commercial purposes. A person having surplus fund available with him would not like to get such fund ideal and would seek to invest them in such a manner that he gets maximum return on his investment”.
So in view of the legal proposition in the above mentioned case laws, purchase of more than one flat by itself will not amount to commercial purpose. In this case Complainant has also stated during the evidence that his wife retired from the service and so out of the said retirement benefit, they have purchased the flats for their own house. No evidence has been adduced by the Opposite Parties that the Complainant or his wife have been regularly purchasing the flat and selling it. No document has been filed in order to substantiate that the Complainant or his wife have sold the flats to anyone before, after purchase.
Thus in such a situation there remains no doubt that the Complainant is a consumer under the Consumer Protection Act.
Thus this point is answered accordingly.
Point No.2 & 3
Both these points are taken up together for discussion in order to avoid repetition.
Complainant has filed the copy of the agreement dated 12/2/2014 executed between the Complainant and the Opposite Parties/developers. From the agreement it appears that the Complainant agreed to purchase the flat measuring an area of 700 Sq ft described in schedule B of the agreement at a total consideration price of Rs.8,00,000/-. So far as execution of the agreement between the parties and that the Complainant has made the payment of Rs.7,00,000/- out of Rs.8,00,000/- has not been disputed by the Opposite Parties. Only claim which has been made by the Opposite Parties is that the Complainant had invested the said amount of Rs.7,00,000/- on being approached by the Opposite Parties for providing financial assistance to the Opposite Parties in raising of the said project. So the said agreement for sale of a flat in favour of the Complainant was nothing but a security towards repayment of the said amount of Rs.7,00,000/- invested by the Complainant. But in this context it may be pertinent to point out that there is absolutely no indication in the agreement or in any other documents, to accept the claim of Opposite Parties that it was just security for repayment of the amount. It is settled principle of law that when the terms of any contract required by law to be reduced in the form of a document, have been proved, no oral evidence will be accepted. If the transaction is reduced to writing than the existence of the document excludes all other evidence of transaction.
If according to Opposite Parties the agreement was just for a security and the flat was subsequently sold to a third party sometimes in 2016 with the consent of the Complainant then there ought to have some documents in this regard. Mere assertion will not be sufficient. On the contrary claim of Opposite Parties that Complainant consented to sell, is nothing but an afterthought to cover up their case. If according to them it was security towards repayment of amount then it was but natural that when the flat was sold to a third party, they would have refunded the amount along with yield @ 14.3 p.a as agreed in the agreement by them. So far as the claim that the market value was higher, no document is filed by the Opposite Party with regard to market value of the flat in question. They have filed with regard to the flat allegedly purchased by the Complainant by an agreement for sale dated 26/12/2015 but the same has been denied by the Complainant. The original of said agreement has not been filed by the Opposite Parties for the reason best known to them. However, from the copy which has filed, it appears that the same does not bear the signature of the Complainant in all the pages of the alleged agreement dated 26/12/2015. Agreement dated 12/2/2014 relating to flat in this case, bears the signature of the Complainant and the Opposite Parties in all the pages. No explanation is forthcoming from the Opposite Parties as to why the alleged agreement dated 26/12/2015 was not signed by the Complainant in all the pages and it only bears the signature of the Opposite Parties. So it creates some suspicion regarding execution of the said agreement.
So, apparently as the Opposite Parties have neither handed over the flat as agreed nor have refunded the amount paid by the Complainant, Complainant is entitled to refund of the amount paid by him along with interest in the form of compensation. In the given situation of this case we do not find any justification to allow punitive damages claimed by the Complainant however he is entitled to the litigation cost.
These points are thus answered accordingly.
Hence,
ORDERED
CC/14/2018 is allowed on contest. Opposite Parties are directed to refund Rs.7,00,000/- to the Complainant along with the interest at the rate of 12% p.a from the date of last payment to till this date within 60 days from the date of this order. Opposite Parties are further directed to pay Rs.15,000/- towards litigation cost to the Complainant within the aforesaid period of 60 days in default the entire amount shall carry interest at the rate of 10% p.a till realization.
