Jharkhand

Bokaro

CC/52/2021

Ashit Soni or Ashit Kumar Soni - Complainant(s)

Versus

Sandeep Kapoor - Opp.Party(s)

Basudeo Pandey

04 Mar 2023

ORDER

District Consumer Disputes Redressal Commission, Bokaro

Date of Filing-11-12-2021

Date of final hearing-01-03-2023

 Date of Order-04-03-2023

Case No. 52/2021

  1. Ashi Soni @ Ashit Kumar Soni S/o Late Balbhadra Prasad Soni

 2. Rita Soni W/o Ashil Soni @ Ashit Kumar Soni

     R/o Rana Pratap Nagar Check Post, Chas, Bokaro

Vs.

Sri Sandeep Kapoor S/o Sri Chandra Mohan Kapoor

of Salimarbaag, Argora Kathal More, P.S. Jagarnathpur,

T.O.P. Pundag, District- Ranchi, Pin 834001

 

 Present:-

                             Shri Jai Prakash Narayan Pandey, President

                  Smt. Baby Kumari, Member

PER- J.P.N Pandey, President

-:Order:-

1. Complainant has filed this case with prayer to direct the O.P. (Builder) to handover the flat No. 1/C, First Floor, Super Build up Area 1717 Sq. ft. at the Multi Storied Residential Building called SHALIMAR BAAG situated and located at Village Pundag, P.S. No. 228, P.S.- Jagarnathpur, District- Ranchi to the complainant after taking rest of the consideration amount Rs. 4,21,200/- keeping in view that earlier the complainant has paid Rs. 14,67,500/- and also direct the O.P. to pay compensation of Rs. 50,000/- for physical and mental harassment and also to pay litigation cost. Further it is prayed to grant any relief entitled to the complainant.
2. Complainant’s case in short is that the O.P. Sandeep Kapoor is a builder who offered the complainant for sale of a flat being Flat No. 1/C, First Floor, Super Build up Area 1717 Sq. ft. at the Multi Storied Residential Building called SHALIMAR BAAG situated and located at Village Pundag, P.S. No. 228, P.S.- Jagarnathpur, District- Ranchi on Rs. 18,88,700/- @ Rs. 1100/- per Sq. ft. Accordingly both parties agreed and as per agreement complainant started to pay the consideration amount from 14.07.2009 to 03.02.2012 total Rs. 9,67,500/- and thereafter, O.P. arrived at the shop of the complainant on 01.04.2021 who received Rs. 5,00,000/- cash and promised to give receipt later on but it was not provided, rather O.P. served legal notice dt. 07.10.2021 mentioning therein that due to non payment of the consideration money O.P. has canceled the agreement, who was ready to return the money already received with interest. Further case is that in this way complainant paid Rs. 14,67,500/- to the O.P. and Rs. 4,21,200/- was to be paid for which complainant is ready to pay but inspite of promise flat has not been handed over to the complainant. Further case is that complainant replied the legal notice dt. 07.10.2021 and on 22.09.2021 there was telephonic conversation between both the parties by which it transpired that O.P. is not willing to hand over flat to the complainant. O.P. has only send photo copy of cheque of Rs. 9,19,125/- who never sent or transferred that very amount to the complainant. Reply of the legal notice was again replied by the O.P. thereafter this case has been filed.
3. O.P. has filed W.S. admitting the fact regarding agreement to sale of  the flat as mentioned in the complaint petition, on the amount as mentioned by the complainant. As per O.P. consideration amount of Rs. 18,88,700/- was to be paid in 9 installments within stipulated time and in default complainant was liable to pay interest @ 21% per annum on the due amount, otherwise O.P. was having liberty to cancel the agreement and to liquidate the damage of 5% of the paid amount or 2% of the consideration amount whichever is higher was to be forfeited and rest of the amount was to be returned. As per O.P. complainant has paid only Rs. 9,67,500/- and he has already issued receipt for it but rest of the amount Rs. 5,00,000/- has never been received by the O.P. Further reply is that inspite of oral intimation and demand complainant has not paid rest of the amount hence agreement was canceled by the O.P., hence there is no deficiency on the part of the O.P. who has shown good gesture by offering to pay the amount already received but complainant demanded Rs. 30,00,000/- with threatening hence matter has been reported to be Police concerned and case is not maintainable at all.
4. On the basis of pleadings of the parties it is apparent that both the parties have admitted the following facts that :-

1. That O.P. Sandeep Kapoor is engaged in construction of multi storied buildings and he is working as builder.
2. That the complainant was in search of a flat for which O.P. has approached the complainant.
3. That both the parties agreed for sale and purchase of flat No. 1/C, First Floor, Super Build up Area 1717 Sq. ft. at the Multi Storied Residential Building called SHALIMAR BAAG situated and located at Village Pundag, P.S. No. 228, P.S.- Jagarnathpur, District- Ranchi.
4. That for the first time complainant paid Rs. 11,000/- on 14.07.2009 and he continued to pay the consideration money in installments.
5. That O.P. used to received the payment either in cash or through bank transfer.
6.  That in the year 2009 from 14.07.2009 to 17.12.2009 complainant paid Rs. 1,70,000/- to the O.P.
7. That in the year 2010 from 17.02.2010 to 27.12.2010 complainant paid Rs. 1,96,000/- to the O.P.
8. That in the year 2011 from 06.01.2011 to 23.12.2011 complainant paid Rs. 5,01,500/- to the O.P.
9. That in the year 2012 on 03.02.2012 complainant paid Rs. 1,00,000/- to the O.P.
10. That O.P. has issued receipt for Rs. 9,67,500/- to the complainant.
11. That O.P. has not given the flat to the complainant till date.

5. In light of above mentioned admitted facts as well as the pleadings of the parties following points are disputed which are required to be decided by this Commission.

1. Whether complainant has paid total Rs. 14,67,500/- or only Rs. 9,67,500/- ?
2. Whether complainant is entitled to get relief as prayed ?

6. For sake of convenience both points are being taken up together for discussion. As per complainant he has paid total Rs. 14,67,500/- to the complainant amongst which Rs. 9,67,500/- was paid earlier and Rs. 5,00,000/-  cash was paid to the O.P. on 01.04.2021 at Bokaro for which O.P. promised to provide receipt later on but he has not provided it. The fact that Rs. 9,67,500/- has already been received by the O.P. is not in dispute, rather there is only dispute regarding the payment of cash Rs. 5,00,000/- on 01.04.2021. Since there is no any documentary evidence on this aspect hence it has to be decided on the basis of the oral evidence.
7. Complainant has filed his examination in chief on affidavit on 25.08.2022 by furnishing  its copy to the O.P. on same day and he was cross-examined by the O.P. on 20.09.2022. At para 3 and para 12 of the deposition complainant has specifically stated about payment of cash Rs. 5,00,000/- to the O.P. at Bokaro on 01.04.2021  and on that very statement there is no cross-examination by the O.P. Therefore, the fact related to payment of Rs. 5,00,000/- by cash to the O.P. has not been controverted by the O.P. in the evidence of the complainant. Contrary to it O.P. has denied said fact in his evidence on affidavit who has been controverted by the complainant during cross-examination by putting questions/suggestions. In this way it is very much clear that complainant is able to prove its case regarding payment of cash Rs. 5,00,000/- on  01.04.2021 to the O.P. at Bokaro.
8. In light of above discussion we are of the view that complainant has proved his case regarding payment of total Rs. 14,67,500/- to the O.P. and rest of the amount Rs. 4,21,200/- has to  be paid later on.
9. So far, prayer of the complainant is concerned it is very much clear from the pleadings of the parties that till filing of the W.S. O.P. has not disclosed the fact that he has already sold the flat concerned to other person. As per O.P. there was oral agreement between the parties and said agreement was acted upon to the some extent. During course of trial O.P. has admitted the fact during evidence that the flat which was booked on 14.07.2009 for the total price Rs. 18,88,700/- has been sold out to Abhay Kumar Pandey on 18.02.2013 on Rs. 13,06,430/- only. Photo copy of said sale deed has been filed by the O.P. as annexure-B of his deposition on affidavit. It is very much surprising that the flat which was agreed to be sold in the year 2009 on Rs. 18,88,700/- has been sold out only on Rs. 13,06,430/- in the year 2013 after cancelation of the agreement between both the parties of this case, it shows that O.P. is having ill intention from the very beginning and the amount mentioned in said sale deed is not a real amount. No where it has been explained by the O.P. that why he has sold out said flat on less price.
10. Another aspect of the case is that there is written agreement between the parties. No where either in the legal notice dt. 07.10.2011 annexed with the complaint petition as page No. 1,2 & 3 or reply dt. 26.11.2021  on reply of legal notice O.P. has not disclosed the specific date on which agreement to sale was canceled nor it has been disclosed that concerned flat has already been sold out to some other person on 18.02.2013. As per statement furnished by the O.P. with the legal notice at page 4 & 5 of the annexure it appears that earlier regular payment was received till 03.02.2012 and sale deed has been executed on 18.02.2013 without giving any notice to the complainant regarding cancelation of the agreement. In this way it is apparent that cancelation of the agreement is completely one sided action of the O.P. and it is without consent of the complainant. During cross-examination of O.P. he has stated that in the month of Jan. 2013 on 29.01.2013 agreement was canceled and in the legal notice sent in the year 2021 the fact related to cancelation of the flat on 29.02.2013 has not been mentioned. Therefore, it is very much clear that there is no any fairness on the part of the O.P. and contrary to it complainant has shown all fairness.
11. It is important to mention here that for the first time O.P. has brought the fact in his W.S. at para 6 that as per agreed terms and conditions between the parties in case of default in payment of 9 installments by the complainant he has to pay interest @ 21% per annum on the due amount. Said fact has also been stated by the O.P. during his evidence ( at para 5 of the evidence on affidavit) that as per agreement in case of default in payment, complainant was to pay interest @ 24% per annum to the O.P. on the rest of the amount and same rate has been disclosed in the legal notice dt. 07.10.2021 and reply to reply of legal notice dt. 26.11.2021 of the O.P. Therefore, if the fact pleaded and asserted  by the O.P. will be taken into consideration then as per O.P. there was agreed terms and conditions between the parties to pay interest either @ 21%  (as per para 5 of the W.S.) or @ 24% per annum (as per legal notice, evidence etc. of the O.P.) and this fact has also been mentioned in the legal notice dt. 07.10.2021 and reply on reply dt. 26.11.2021 furnished by the O.P. itself. In this way it is very much apparent that if lower side of rate of interest is taken into consideration then there is agreed rate of interest i.e. 21% per annum.
12. It has to be mentioned here that by the lapse of time the rate of the flats in the said locality has been raised and it is about 4 (Four) to Rs. 5000/- per Sq. ft. as it has been mentioned at para 13 of the deposition of the complainant and on this aspect also there is no cross-examination by the O.P. To support this statement complainant has filed so many print out of the rates of the flats and buildings of that very locality which are supportive to the oral statement of the complainant. Contrary to it there is no any evidence by the O.P. In this way at present the value of the flat concerned is about more than 50 lakh rupees to which complainant has proved and O.P. has not disproved it.
13. In light of above discussion we are of the view that complainant has been able to prove its case that he has already paid Rs. 14,67,500/- amongst which Rs. 9,67,500/- was paid in between 14.07.2009 to 03.02.2012 as admitted by the O.P. and rest of Rs. 5,00,000/- was paid on 01.04.2021 to the O.P. Since it has been brought into evidence that flat concerned has already been sold out by the O.P. hence at present said flat is not in ownership of the O.P. Hence we are of the view that there is deficiency in service by the O.P. and there is unfair trade practice by the O.P. with the complainant.
14. Accordingly both the points are being decided in favour of the complainant and against the O.P. Prayer of the complainant is being allowed in the following manner:-

That O.P. is directed to provide another flat of same size and facility in the same locality as agreed earlier within 60 days from receipt/production of the copy of this order on receiving rest of the consideration money by the complainant i.e. Rs. 4,21,200/- in the concerned Registry Office on the date of execution of sale deed.

In alternate to above if O.P. is not willing or not able to provide the flat of same size in the same locality then he will pay total Rs. 14,67,500/- (already received earlier) with agreed interest @ 21% per annum from the date of receipt of each of the amount and said payment must be made within 60 days from receipt/production of the copy of this order and in addition to it O.P. shall pay Rs. 50,000/- as compensation and Rs. 10,000/- as litigation cost to the complainant within above mentioned period.

 

(J.P.N. Pandey)

                                                                                      President

 

                                                                  

                  

                                                                               (Baby Kumari)

                                                                                       Member