Final Order/Judgment

Debasis Bhattacharya:- Presiding Member

Having been aggrieved over and dissatisfied with the denial of sale of an immovable property i.e. a piece and parcel of pucca structure measuring an area of 1400 sq. ft. on the first floor of a two storied building, by the OP, even after execution of an agreement for sale and payment of earnest money, the instant complaint petition has been filed by the complainant u/s 35 of the Consumer Protection Act 2019.

Firstly, it should be mentioned here before proceeding in the matter of disposal of this case, that the case runs ex parte against the sole OP, as, in spite of intimation through paper publication and allowance of sufficient time and opportunities, the OP did not appear before this Commission even on a single occasion. Thus question of submission of written version and evidence on affidavit by the OP does not arise.

The series of events, which compelled the complainants to approach to this Commission, as depicted chronologically in the complaint petition, is as under.

the Complainants sometime back purchased the ground floor of the property in question from the OP by virtue of a sale deed. Subsequently the OP approached to the Complainants for sale of the first floor also of the same property and accordingly a notarized agreement was executed on 29.01.21in which the consideration price was decided at Rs.31,00,000/-. At that point of time, the Complainant paid the earnest money of Rs.3,50,000/- by three account payee cheques the receipt of which is incorporated in the agreement.

In terms of the agreement the OP was supposed to assure registration of the sale deed within eleven months from the date of agreement.

Consequent upon that, the Complainant applied for Home loan to a financial institution for Rs.20,00,000/- and the same was sanctioned. Balance finance was arranged by taking gold loan from another finance company mortgaging certain gold ornaments of the family members. Recovery of the loans is also claimed to have been started by realization of the equated monthly installments by the respective financial institutions.

At that juncture, the OP, on being approached, asked for arranging the necessary papers and fixing a convenient date for registration of the deed.

Sometime later, while being busy with making arrangements for the said registration, the Complainants came to know that the OP was planning to sell the property to someone else.

On enquiry the OP termed the hearsay as rumour and asked the Complainant to take required preparation for the registration.

But the Complainant, after seeing some unknown faces enquiring about the property, again approached to the OP and allegedly the OP at this, flared up and expressing his intention to sell his property to anyone as per his own choice, threatened the Complainant of dire consequences. He even went to the extent of declining to refund back the earnest money of Rs.3,50,000/-.

Consequently the Complainant having been intimidated made contact with the concerned Police authority and the intervention of the Rishra Police authority resulted in an undertaking on 10.10.21, by the OP stating that the property would be sold to the Complainant only.

However on 14.10.2021, the Complainant had to lodge a general diary with the Rishra P.S. as some antisocial elements came up again and threatened him with filthy languages.

As a fall out, the OP on his own, made contact with the Complainants and requested them to withdraw all the complainants and fixed 12.11.2021 for the registration in favour of the Complainant.

When on 12.11.2021 the Complainant with all relevant papers including the draft sale deed, a cheque of Rs.20,00,000/-, four demand drafts of Rs.7,50,000/- made themselves present at the office of the ADSR Serampore, the OP did not turn up.

By this time the stamp duty along with registration fees of Rs.2,07,339/- were paid in the Government exchequer.

On being called, the OP took recourse to the plea that he was otherwise preoccupied and fixed the date of registration afresh on 16.11.2021.

But this time also the OP refrained from making his appearance while the Complainant was ready. On being contacted the same evening, identical drama as mentioned in the previous paragraph was repeated from the OP’s end.

Again on 19.11.2021 there was appearance of antisocials, threatening from their end and an attempt to break the main door of the property. Eventually an FIR was lodged with the Rishra P.S. by the Complainant.

In short, the incorrigible OP could not be compelled to comply with the terms of the sale agreement even after steps like police intervention, general diary, FIR and Advocates letter.

Finally the Complainants came to know that the OP on 18.12.2021 sold out the property to one Smt. Kalpana Singh reportedly by virtue of Deed of Conveyance No.7311/2021.

Considering the OP’s treatment with him as sheer breach of contract, causing financial loss, harassment and mental trauma, the complaint petition has been filed before this Commission with a prayer to impose direction upon the OP to abide by the terms of the agreement, to register the property in the Complainant’s name on receipt of the balance amount,to pay Rs.30,00,00/- with ‘interest’ as compensation for mental agony and physical harassment and to pay further Rs.1,00,000/- as the litigation cost.

The petitioners to corroborate their allegation against the OP have annexed copies of notarized sale agreement, statements of bank accounts, documents related to sanction of loans, draft deed of sale, GRIPS e-challan as evidence of payments of stamp duty and registration fees, e-assessment slip issued by the Directorate of Registration and Stamp Revenue, Cheque and bank drafts related to proposed payments of the consideration price, petition under section 144(2) of the Criminal Procedure Code, FIR, Advocate’s letter, communications made to ADSR Serampore and undertaking of the OP submitted before the OC, Rishra P.S.

The Complainant’s declared address is within the district of Hooghly and the OP’s residence and place of business is also within the district of Hooghly.

The claim preferred by the complainant does not exceed the limit as prescribed by the Act.

Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.

 Materials on records viz. the complaint petition, evidence on affidavit, annexed documents and brief notes of argument filed by the complainant are perused.

          However the OP did not feel it a necessity to appear before this forum, observe the basic statutory formality by filing written version, evidence on affidavit and by taking part in the argument.

          In view of the above and on perusal of the case record and documents, it transpires that there was blatant breach of trust on the part of the OP. Even after execution of the agreement, payment of the earnest money by the Complainants, the OP made several false commitments in the matter of the registration of the property. In turn, the Complainants had to face shocking volte-face from the OP’s end accompanied by criminal intimidation.

Thus, this Commission is of the opinion that there was gross deficiency of service and unfair trade practice on the OP’s part. However the stamp duty and the registration charges already paid to the Government are refundable from the Government itself through due process, as stamp duty and registration charges cannot be realized twice for one time registration of the same property.

Secondly re-conveyance of the sale deed is not feasible as the agreement for sale was not registered.    

Hence, it is     

ORDERED

That the OP is hereby directed to refund back the earnest money of Rs.3,50,000/- to the Complainant, with 9% interest for the period from the date of agreement to the date of payment of the principal amount.

Besides, the OP will also pay an amount of Rs.3,00,000/- as compensation for causing mental pain and harassment and Rs 20,000/-towards litigation cost to the complainant.

OP is directed to comply with this order within 45 days from the date of this order.

The OP will be liable to pay an amount of Rs.30,000/- towards Consumer Legal Aid Account in case of non-compliance of this order within the stipulated time frame.

That the complaint case bearing no.CC/163/2021 be and the same is partly allowed on contest.

  Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.