Smt. Sangita Paul, Member
This is a case was filed by Mr. Tapas Hait against Sankalpa Construction, the proprietor of which is Sri Amit Das and Sri Ranajit Das with a prayer for a direction up the OPs to deliver the possession of the flat and execute and register the deed of conveyance in favour of the complainants, after receipt of balance consideration amount, or to direct the OPs to return back the deposited amount of Rs.3,50,000/- along with interest @ 18% p.a., to award compensation the tune of Rs.10,00,000/- for the complainant’s harassment, mental agony, financial loss and to award Rs.50,000/- as litigation cost.
OP No.1 is Sankalpa Construction. The proprietor is Sri Asist Das. The address is South Garia (Jagannathpur), P.O. –South Garia, P.S. – Baruipur, Dist. - South 24 Parganas, Pin – 743 613. He is the developer.
OP No.2 is Sri Ranojit Das. S/o. Sri Ramesh Chandra Das. The address is Dhalua Banapally, Panchpota, Dist, - South 24 Parganas, Pin – 700 152. He is the land owner.
The complainant, by filing the case states that the OP No.2 is the owner of the land, measuring 1 cottah 03 chittaks, the J.L. No. of which is 43, Touzi No.4239, R.S. Das No.358, L.R. Dag No.374, R.S. Khatian No.165, L.R. Khatian No.1504 at Mouza – Dhalua under the P.S. Sonarpur. The land is within Rajpur, Sonarpur Municipality.
The land owner entered into a deployment agreement on 09.08.2017 with the OP No.1 to construct a multistoried building as per sanctioned building plan. The land owner executed a power of attorney in favour of Sri Amit Das. The complainant No.1 approached OP No.1 to purchase a flat from Op No.1. The complainant entered into an agreement for sale on 01.07.2019 with the OPs to purchase a flat on the 1st floor measuring about 650 Sq. ft., consisting 2 bed rooms, one dining cum kitchen, one verandah, one toilet together with undivided proportionate share of land at a consideration price of Rs.16,50,000/- along with common rights to use open space, lobbies, staircase, terraces roof of the premise.
On different dates, the complainant paid Rs.3,50,000/- to OP No.1.
The OP No.1 was supposed to deliver the flat within 12 months from the date of agreement, i.e. 01.07.2019, but the OPs did not deliver the possession of the flat to the complainant. As the complainant visited the site and found that the flat was almost complete the OPs neither demanded money from the complainant, nor they gave the flat to the complainant. The OP No.1 is denying to sell the flat to the complainants. The complainant sent legal notice on 28.01.2021.
That the cause of action of the instant case arose on 01.07.2019 and lastly on 28.01.2021 when the complainant sent demand notice upon the OPs.
Hence the complainant prays for a direction upon the OPs to deliver the possession of the flat and execute and register the deed of conveyance in favour of the complainants after receipt of balance consideration amount, to return back the deposited amount of Rs.3,50,000/- along with 18% interest p.a., to award compensation to the tune of Rs.1,00,000/- for the complainant’s harassment, mental agony and to award Rs.50,000/- as litigation cost.
OP No.1 in the W/V states that the complaint is not maintainable either in law or in facts. That the complainants are not valid consumers as per the provisions of C P Act 2019.
That the case is barred by the Principals of Waiver, Estoppels and acquiescence.
The complaint was filed by the complainant for illegal gain by misleading the Ld. Commission. The complainants have come before the Commission with uncleaned hands. That the case is barred by the Principals of Res-judicata.
OP No.1 states that complainants have paid only Rs.1,00,000/- through cheque being No.388454 drawn on Axis Bank dated 18.01.2019. But two other cheques which were mentioned in the memo of consideration were not encashed. The amount of those two cheques was Rs.50,000/- each .
OP No.1 states that the complainant applied for “housing loan” to LIC Housing. But unfortunately the loan was not sanctioned. So the complainants informed the OP No.1 to hold those two cheques because they were not in a position to purchase the subject flat without loan amount.
So the OP did not deposit the said two cheques mentioned above.
OP No.1 informed the complainants that they must make payments. But the complainants did not pay heed to OP No.1’s requests.
OP No.1 states that the flat in question was almost complete. The complainants did not want to fulfill their obligations for purchasing the flat. After three years the agreement stands terminated. So the question of refund of amount does not appear.
That the complainant was desirous to purchase another flat from the ongoing project of OP No.1.
The OP No.1 prays for dismissal of the complaint with exemplary cost.
That the case was filed on 02.03.2021. The case was admitted on 18.03.2021. On 28.06.2021m Ld. Advocate for OP No.1 files power. OP No.1 prays for time for filing W/V. Prayer of OP No.1 is rejected. Let the case be heard ex-parte against OP No.1. None appears on behalf of OP NO.2. On 21.12.2021, OP No.1 files W/V. OP No.1 prays for acceptance of W/V on the ground of COVID-19. Her prayer is considered and allowed, and her W/V was accepted. As the Op No.2 is reluctant to come to the Commission, the legal notice in respect of OP No.2 was published in “Aajkaal” dated 8th March, 2022. On 28.04.2022, no W/V has been has been filed by OP No.2. So the case proceeded ex-parte against OP No.2. On 31.05.2022, the complainants file reply. Copy served. On 09.11.2022 the complainants file questionnaire. Copy served. On 22.12.2022, OP files reply. Copy served. On 10.05.2023, Ld. Lawyers of the complainant and OP No.1 filed BNAs. Argument was heard in full. Accordingly we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the land owner entered into an agreement with OP No.1 for constructing a multi-storied building on the plot of the land owner. The complainant No.1 approached to OP No.1 for purchasing a self contained flat, on 01.07.2019. The price of the flat was Rs.16,50,000/- and the complainant paidnRs.3,50,000/-. As the complainant spent the said amount for purchasing a flat, he is a consumer U/S 2(7) of C P Act 2019. Hence the 1st point was decided in favour of the complainant.
Point No:2 :
The complainant was desirous of purchasing the flat. The measurement of the flat was about 650 Sq.ft. The flat consisted to two bed rooms, one dining cum kitchen, one verandah and one toilet, along with undivided proportionate share of land corresponding thereto along with proportionate right of common facilities, utilities, benefit. The consideration price towards the undivided proportionate share in the land and for the construction of the self contained flat has been settled at Rs.16,50,000/- only which has been agreed to be paid by the purchaser. At the time of execution of the Agreement, the complainant paid Rs.2,00,000/-. The complainant was supposed to pay the rest of the amount through 4 equal installments of Rs.3.5 lakh each. At the same time the Op No.1, the developer was supposed to construct the flat in the stipulated period. The agreement for sale was signed on 01.07.2019. The OPs did not utilize the paid amount for the construction of the flat. The Op No.1 wanted to hand over the flat to new purchasers, other than the complainant. It is nothing but deficiency in service and unfair trade practice adopted by the OP No.1. The complainant was told that the balance consideration would have to be paid by the complainant, as the developmental work would proceed. The complainant paid Rs.3,50,000/-. The complainant had no fault of his own. He hoped to have a home, but his hopes were not fulfilled due to unfair trade practice adopted by the OPs. Hence the 2nd point is decided in favour of the complainant and against the OPs.
Point No.03 :-
The complainant paid Rs.3,50,000/-. It was initial payment for purchasing the flat but the developer was not ready to deliver the flat to the complainant. Though the complainant made the initial payments, the developer was not ready to deliver the subject flat to the complainant. The OPs were delaying in handing over the flat upon payment of balance consideration amount. The consideration amount has been described as construction linked payment. The complainant was ready to pay. He was eager to purchase the flat. That is why he made the initial payment of Rs.3,50,000/-. The complainant was supposed to deliver the flat within 12 months from the date of agreement. Within the stipulated period of one year, the complainant failed to get the same as the Ops failed to deliver the flat in a habitable condition to the complainant. The developer started the work of construction, but could not complete it. The Op No.1 did not raise any demand for balance consideration amount. Because the developer wanted to sell the flat at higher price to other purchasers by depriving the complainant. The complainant wanted to pay the balance consideration amount, yet the OPNo.1 was not ready to deliver the flat. Hence the complainant spent time in mental pain and agony. So the 3rd point is decided in favour of the complainant and against the OPs.
In the result, the complaint case succeeds.
Fees paid is correct.
Hence, it is,
ORDERED
That the complaint case be and the same is allowed on contest against the OP No.1 and ex-parte against the OP No.2 with cost of Rs.20,000/- (Rupees twenty thousand).
That the OP No.1 is directed to deliver the possession of the flat and execute and register the deed of conveyance in favour of the complainants after receipt of balance consideration amount.
Alternatively that the OP No.1 is directed to return the deposited amount of Rs.3,50,000/- along with 9% simple interest p.a. w.e.f. 01.07.2019 till final realization within 45 days from the date of this order.
That the OP No.1 is directed to pay compensation to the tune of Rs.50,000/- (Rupees fifty thousand) within 45 days from the date of this order.
That the litigation cost of Rs.20,000/- (Rupees twenty thousand) is to be paid by the OPs 1 and 2 jointly and / or severally within 45 days from the date of this order.
That the complainants are at liberty to put the order into execution if the orders are not complied with within the stipulated period of 45 days from the date of this order.
Let a copy of this order be supplied to the parties concerned free of cost.
That the final order will be available in the following website: www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
