Date of filing: 20.11.2017 Date of disposal: 17.10.2023
Complainant: 1. Sri Prakash Karmakar, S/O- Lt. Brindaban Karmakar
2. Smt. Tapasi Karmakar, W/O- Sri Prakash Karmakar both residing at 28 Beharampur Road, Dakshin Para, Ranaghat, Nadia, Pin 741201.
-V E R S U S -
Opposite Party: 1. Saptarshi Construction, a proprietorship concern represented by its proprietor Sri Deepak Bhattacharjee, carrying its business at 2A/3, A.A. Bithi, City Centre, P.O.-Durgapur 16, District Paschim Bardhaman.
2. Mr. Swagoto Sanyal, residing at -Quarter No.CN1, STC Colony, Durgapur, Paschim Bardhaman.
3. Smt. Sukla Bandopadhayay,- Gorabazar, Baharampur, Murshidabad,742101.
4. Smt. Anjali Roy, -Tewari Para, Ukhra, Andal, Paschim Bardhaman, 713363.
5. Mr. Goutam Chandra Nath, -Vivekananda park, Telikhola, Arrah, Durgapur, 713212, Paschim Bardhaman.
6. Smt. Sima Roy, -Vivekananda park, Telikhola, Arrah, Durgapur, 713212, Paschim Bardhaman.
7. Smt. Soma Sharma, 690/3, Ashok Nagar, North 24 Parganas, Pin 713222.
Proforma O.P. - 8.Branch Manager, Oriental Bank of Commerce, Ranaghat Branch, Ranaghat, Nadia, Pin-741201.
Present:
Smt. Subrata Saha (Hazra) Hon’ble President
Ms. Lipika Ghosh Hon’ble Member
Mr. Atanu Kumar Dutta Hon’ble Member
Appeared for the Complainant: Asish Banerjee,Debjyoti Banerjee - Ld. Advocate.
Appeared for the Opposite Party No1: Suvro Chakraborty - Ld. Advocate.
Appeared for the Opposite Party Nos2 to 7. Lipabeethi Basak- Ld. Advocate.
Appeared for the Prof. Opposite Party No.8: Jayanta Koner - Ld. Advocate.
F i n a l O r d e r
Epitomize of the facts that this Complainants entered into an agreement dated 16.05.2017 with one developer company represented by O.P. No.1 for purchasing a flat being No.UT 3A at an apartment namely Uttarayan on the 3rd floor of that apartments at a consideration amount of Rs.14, 58,000/- on 16.05.2017. The parties to that agreement were owners of the land where the apartment was scheduled to be constructed and the developer in one part and these Complainants on other part. The agreement of sale was registered as ADRS, Durgapur. Before entering into the agreement developer disclosed about the status of the entire property as unencumbered and the owners being other Opposite Parties had valid title to transfer the constructed flats. At the time of execution of the agreement, Complainants had to pay Rs.3,21,599/- out of entire consideration money of Rs14,58,000/-. Complainants had to bear the registration charge of the agreement of sale. It was further decided that the rest consideration money should have to pay within 45 days from the date of agreement for sale. But unfortunate to submit that these Complainants failed to comply that payment in rest, due to the unscrupulous developer who made a false statement under the clause of agreement about the conditions of the entire property itself. Necessary to mention these Complainants being a retired person would have to purchase this flat for residential accommodation on taking a bank loan namely Oriental Bank of Commerce. After retirement, he deposited all of his retirement benefits in this Bank which is situated at Ranaghat, District-Nadia from whom he was to take loan. This Oriental Bank of Commerce was also impleaded as party to this case as Proforma Opposite Party. Thereafter at a discussion with the Bank or Branch Manager of this Bank, these Complainants came to know that for the purpose of securing loan, they had to make equitable mortgage of their future residential accommodation or the proposed flat itself. Further to say after registration of sale agreement when this Complainant No.1 went to the Bank for the purpose of loan the Bank Manager ask him to supply or produce Non-Encumbrance Certificate and Legal Security Report of said property which Complainants want to purchase. Ld. Advocate of Bank sought a certificate from the owners and developers to the effect that the property was not encumbered or owners-developers did not borrow any money from any financial institution for the construction of apartment or did not deposit the Title Deed of the property. Ld. Advocate of the Bank asked to deposit all present and parent deeds of the property. The Bank of Oriental Bank of Commerce by a specific letter dated 15.06.2017 directed to submit a certificate from the owners and developers that they did not borrow any sum for proposed construction from any financial institution or did not create any charge or encumbrance or mortgage to the property by depositing of Titles Deeds present or parents and the Developer may produce all those deeds as an when call for by the Bank. Pursuant to such letter as given by the Bank to the Complainants, this Complainant No.1 asked such certificate to the developer as O.P. No.1 for granting loan under letter dated 19.06.2017. But needless to mention this developer on receiving such letter for the first time disclosed that their project is under mortgaged condition at Allahabad Bank of Durgapur and for taking project loan, they have to deposit all Title Deeds. Thereby No Objection Certificate or Encumbrance Certificate is to be asked or taken from their financier bank i.e., Allahabad Bank of Durgapur. Through the Lawyer’s letter this developer threw many defamatory statements towards the Complainants and pressurized them for the rest payment following agreement for sale and also stated that after the expiry of 45 days from the date of agreement they have to bear interest on the sale amount. But Complainants though have desire to pay rest amount of money for purchasing the flat but due to not granting any loan from his Bank (Oriental Bank of Commerce at Ranaghat) for not allotting No Objection Certificate from the part of developer, Complainant No.1 failed to handover the rest amount of money in respect of sale of the flat or to purchase it.
Hence, he approach before this Commission/Forum either to direct to the developer as Opposite Party No.1 to give Non Encumbrance Certificate on the property for sanctioning loan from his bank and to register Sale Deed on taking rest amount for sale because he would be able to pay the rest amount after sanctioning of loan or otherwise the Developer should pay all of his expenses behind this transaction in total Rs.5,00,803/- If the developer do not pay any No Objection Certificate or Non Encumbrance Certificate of the property to them it was the reason of non-availing the loan from their Bank or to purchase flat.
On the other dogma O.P. No.1 being developer having summons from the Forum duly appeared before the Forum and made a version that after a detailed discussion with the Complainant who knew everything made such agreement for sale in presence of owner, developer and Complainants as parties to that agreement. But when rest payment of sale is to be paid he is taking this plea of loan from the Bank. This Developer proposed to the Complainant No.1 for sanctioning loan from the Allahabad Bank, Durgapur who is the (developer’s) financial institution but the Complainants did not obey it rather to avoid repayment in time filed this case against all the Opposite Parties. Practically, the Developer Company took loan for the Project from Allahabad Bank, Durgapur and many flat purchasers as per their/his suggestion took loan from the Allahabad Bank for purchase of their flats at their project and those purchasers felt no inconvenience in purchase. But these Complainants were not willing to do so. Now it is difficult for them/him to give No Objection Certificate or Non Encumbrance Certificates to the Complainants due to their project loan. This Allahabad Bank of Durgapur has to give it or these Complainants had to ask it from Allahabad Bank of Durgapur. So this O.P. No.1 has nothing to do on it. These Complainants unnecessarily filed this Case against him or made accusation to him and asked about compensation raising deficiency of service against him. That apart at the time of agreement this Complainant No.1 never disclosed that he would purchase the property or flat on taking loan, for that reason there no clause was prepared in agreement at that respect for granting no objection or encumbrance certificate by the Company. Further to be mentioned in brochure or pamphlets of project this company disclosed about their loan or mortgage of property to the Bank. Accordingly this O.P.No.1 has no fault in it.
Besides the aforesaid statements in original by the O.P.No.1 on 04.04.2019 this O.P. cum Developer informed this Commission by filing supplementary W/V that their Banker issued notice to the Company u/Sec. 13(2) of the SARFAESI Act not to sale the unsold flats including suit flat. Hence, the suit is not maintainable in this Forum by the Complainants.
The other O.P. Nos.2 to 7 also responded to the summon of the Forum and made their statement that as this Complainant s did not bring any such allegation against this land owner as O.P. Nos.2 to 7, hence, being the land owner of the property they are nothing to say because these Complainants have fully satisfied about the title of this O.Ps being the land owners of the property. They further submitted that being O.P. Nos.2 to 7 they were not acquainted about the dealings with the intended purchasers regarding the developer’s allocation at which this question flat remains. They are fully unaware about the transaction made between the Complainants and the developer. These O.P. Nos.2 to 7 have already entered into a development agreement with the O.P. No.1 and simultaneously they have already executed development power or attorney in favour of O.P. No.1 in accordance with the law. So this O.P.Nos.2 to 7 are only concerned about their allocation as made in the development agreement and which they have already got possession of the same. In view of those only O.P. No.1 as developer is responsible to answer the questions of the Complainant s or to solve allegation as brought by the Complainants against the O.P.No.1. So the entire suit is required to be dismissed against them.
The Proforma defendant i.e., Oriental Bank of Commerce also responded to the summon of this Forum through Branch Manager of the Bank. As per their statement here no cause of action arose for the Complainants to file the complaint petition against the O.P.-Bank as Proforma Opposite Party No.1. Practically to say these Complainants is/are not entitled to get any relief from them because when these Complainants went to their Branch at Ranaghat for purchasing a flat from the O.Ps, these Complainants deposited some documents at their office and the Proforma O.P. verified those documents and opined for further requirement of documents from the original Opposite Parties. But the Complainants as petitioners of loan were failed to file all required documents for the Bank for sanctioning loan to the Complainants. This Banking authority could not advance any loan without proper verification of the documents because the money is public one and any individual or group of people cannot be allowed misappropriate the public money by way of making loans from them. There are some terms and conditions of any borrower of granting loans when this petitioner was unable to fill up all the terms and conditions and to file required documents before their bank. Hence, his prayer of loan was rejected by the Banking Authority. So the case is fit to be dismissed against them.
These are all the respective versions of the respective parties to this litigation.
D e c i s i o n with R e a s o n s
In order to substantiate the complaint, the Complainant No.1 examined himself by affidavit in writing and stated thoroughly about his complaint against the O.P.No.1. These Complainants were also tested by the O.P. No.1 through the process of filing questionnaire as well as reply by him. These Complainants also filed their entire documents for the suit through a proper firisty which were -
1. Agreement for sale vide Dated 16.05.2017 under No.020602045 of 2017.
2. Letter dated 31.05.2017 to the Oriental Bank of Commerce, Ranaghat issued by the Ld. Advocate of the Bank.
3. Letter dated 15.06.2017 given by the Branch Manager, Oriental Bank of Commerce to the Complainant regarding creation of charge or encumbrance/mortgage of the property by depositing all Title Deeds or not.
4. Letters dated 19.06.2017 & 25.06.2017 by the Complainants to the Developer Company as O.P. No.1 for supplying of documents to the effect that Developer Company did not borrow any money or sum from any Financial Institution regarding construction in which they have not created any charge/mortgage or encumbrance to the property by depositing original deeds of purchase of property.
4. Letter dated 23.06.2017 & Track Report dated 28.08.2017 to the Complainants by the Developer’s Company (O.P. No.1).
5. Letter dated 03.07.2017 by the Complainant to the O.P. No.1.
6. Letter dated 12.07.2017 by the O.P. No.1 to complainants along with postal receipt.
7. Letter dated 02.08.2018 for No Objection Certificate.
8. Letters Dated 20.08.2017 & 12.10.2017 to the Consumer Affairs Department by the Complainants.
On the other hand, Opposite Party No.1 with his W/V filed brochure of the Project along with filing affidavit in writing stating all the contentions under W/V as oral evidence of the Company/O.P. No.1 who was also tested by the Complainants through filing questionnaire and reply.
Now on perusal of entire materials under record in the form of respective documents of the parties and having careful perusal of deposited evidence of the parties and having an immense thought over the issue of litigation or confrontation mainly in between the proposed flat purchaser and developer of the construction as O.P. No.1, We find pick of confrontation or crux of litigation only lies to the non-issuance of Non-Encumbrance Certificate or No Objection certified by the developer to the proposed-purchaser complainants in respect of purchase Flat No. UT3A.
At a through scrutiny on the agreement dated 16.05.2017 which transpires that these complainants went to purchase the Flat No.UT3A by an agreement for his/their residential accommodation only to the allocation of developer’s allotment and the owners (the O.P. Nos.2 to 7) kept themselves away from this litigation since they have no interest on the question-flat of these complex. We find the owners of the property clearly stated that the Complainants only concern with the allotment of the developer in this project and they have nothing to say behind this litigation.
So these, purchaser-complainants had only responsibility to see the genuinity of the ownership of the land in question and entitlement of the developer on the ownership from whom they are going to purchase the flat as owners. In the instant litigation, it is noticed, the agreement itself was made in between owners of the land and developer of the construction and proposed-purchasers of the flat under construction. The statement under the agreement transpires that the owners and developer have all right to sell the flat without any bindings as mentioned in the second schedule of the agreement. We find nowhere the clause of agreement, owners or developer gave vent that another forth party i.e., Allahabad Bank of Durgapur is remaining or involved in the sale transaction i.e., their developer’s bank/financier under whose investment (as loan) entire project/site was being changed from land to building.
Materials under record of Opposite Parities or its W/V, evidence and W.N.A. of the opponents specifically O.P. No.1, We the Commission find, this developer (O.P.NO.1) placed his submission as that, all along these purchasers knew about the function of the Bank on this project through brochure or pamphlets. They further submitted that after a thorough discussion this agreement-in-question was prepared but at the time of making or signing the agreement these purchasers not disclosed that they would purchase the Flat on taking loan, for that reason no clause was prepared in this regard. Then, if so, what restricted this developer to disclose about the condition of entire property in that agreement dated 16.05.2017 that the property was charged one due to project loan. It is fact these purchasers on good faith signed on the agreement and paid advance money with a hope of completion of their purchase after rest payment but when the purchaser came to know about the mortgage of entire land or even the flat also, for which he/they have made advance it would be possible not to proceed with this transaction when the title of the seller/developer was not clear. HencHen Hence, non-disclosure of obtaining loan by the complainants for specific purchase does not absolve any responsibility/guilt of the developer not to be clean at his title which to be effected by sale. This non-disclosure of real facts about the position of the property at the time of taking advance money from the proposed purchaser is a part of unfair trade practice on the part of the developer. Without disclosing proper condition of the property this developer signed on the agreement to the effect that the property is unencumbered one and he took the amount as advance.
So, We the Commission must observe/opine that this suppression of fact gives rise to the purchaser to conclude about the unfair trade practice by the developer who was bound to disclose about his creating charge on the entire property on taking loan and the title of him which was going to be sold was not in clear title for any selling as owner. It may be, if, there any clause in the agreement about the prior loan transaction on the project this purchaser/complainants may have not willing to proceed with this sale or agreement to sell. Rather this developer without disclosure of real fact took part payment of the property and forced this customer to pay rest amount keeping the purchaser in dark when title of the developer itself was not clear.
Accordingly, irrespective of any adjudication behind deficiency of service as raised through this complaint by the Complainant with regard to non-advance of No Objection Certificate as per guideline of RBI, it is unanimously decided by this Commission that this Developer practiced an unfair trade practice on suppressing about the mortgage or creating loan at his sale agreement or proposed sale. It is immaterial how any buyer will purchase the property whether either from own fund or by incurring loan from any financial institution i.e., Bank etc., it is more material whether title of this Seller/Developer was good-clear or not, who without any hesitation took advance against the property or flat and pressurized the proposed-purchaser for handing over the rest amount of payment on sale proceed.
In this case in hand, We find under the clause of agreement this developer intentionally not disclosed that he has no right at that present time to sell the property or the flat as owner, since it is charged one. It was the positive incumbent duty of any developer to make his proposed-vendee to be known or informed each and every sort of holding title by him either it free title or any title which is subject to be free after discharge of any types of burden in the form of lien, mortgage or loan in which any purchaser should not fall in any difficulty in respect of his ownership in future.
Here the supplementary W/V as filed the Developer clearly shows, if this loan process was not decided to be adopted or taken by the complainants and they use to pay entire money in cash they would be cheated by this developer who fell his loan in the unpaid condition and escaped from this courtyard of sale transaction.
So, We the Commission hold as soon as any purchaser on proposed-purchase, pays some portion of consideration money to the hand of the developer as advance payment or part payment through agreement, in the eye of Consumer Protection Act that proposed-purchaser acquires a right to be consumer behind his purchase of the property and at that right point of time as soon as he send money to the Developer as part payment either through cash- amount or in cheque, he the proposed-purchaser must have right to raise the point or blame of unfair trade practice against the developer if he does not have or get any clear title from the party of his vender. But here all through going into the trial in question, it is evident that the consideration money was partly paid by the complainants to the O.P.No.1 but the suppression of fact by the developer stands objection in agreement behind this sell transaction to fulfill it in the term of completed sale and for that reason only this Complainants were not able to pay the rest amount of his purchase money within due time. Since when his Bank asked non encumbrance certificate of the property or flat. So, developer must have disclosed before selling of flat about the position of the title behind the sale and this developer in no way can claim any interest on the sale proceed for non-payment of the complainants within any due time when developer himself suppressed about his non-existence of title. Accordingly, in this instant case We hold this demand of developer about 30% payment of interest at the sale value is a design from the very inception of performing agreement and it is not at all any subject to be realized from the proposed-purchaser when he himself suppressed the fact of his unclear title or ownership rather it is an unfair trade practice on his part.
Next we come about the deficiency of service of the developer which was raised by the Complainant at this instant case. As per rules and regulation of RBI it is incumbent duty of the developer to give No Objection Certificate or Non Encumbrance Certificate to any proposed-purchaser who wants to purchase the property on taking loan from any financial institution. In this case in hand, We find for the completion of rest payment this complainant No.1 through his letter after letter asked this developer to give No Objection Certificate or Non Encumbrance Certificate for sanctioning his loan for purchase. But without giving or handing over it, this developer wanted to shake off his responsibility and burden it to the shoulder of complainants or their Bank/Financial institution to ask it from
Developer’s financial institution but We opine it is not any fair practice on the part of the developer to burden this duties on the shoulder of the complainant when the complainant is all through in dark about the identity of Developer’s financer and after agreement at the nick of moment of rest payment direct this complainants to ask for such certificate from his financer. This mode of attitude of the developer is no doubt a deficiency of service on his part when from the very inception of agreement he did not disclose about his venture of taking loan from the Allahabad Bank to the proposed-purchaser/Complainant. Rather We find in so many words by agreement this developer induced this proposed-purchaser to belief that his title is non-encumbered one and lastly We find not discharging his loan or mortgage of entire property or this flat in question Developer threw the said transaction into the trash or dustbin and escaped from his liability on saying through supplementary W/V that his financer started a proceeding u/S. 13(2) of SARFAESI Act, 2002 behind this entire project and restricts him to sell this question flat. So it is a clear deficiency of service on the part of the developer since he took part payment of sale value.
Consequently this complaint is in full success through trial on the point of unfair trade practice and deficiency of service at this proposed sale transaction in between complainants and Opposite Party No.1 as developer.
Case is dismissed against Opposite Party Nos.2 to 7.
Hence, it is
O R D E R E D
That the complaint be and the same is awarded at a direction to the O.P. No.1 as developer to return the advance payment behind this sale of Rs.3,21,599/- (Three Lakh Twenty One Thousand Five Hundred Ninety Nine) only along with 15% interest per annum from the date of registration of agreement and up to realization of money.
In addition to the O.P.-Developer is further directed to pay Rs.5,00,803/-(Five Lakh Eight Hundred Three) only to the Complainant as other expenses of the complainants as asked for. Developer is also liable to pay litigation cost at the tune of Rs.10,000/- (Ten Thousand) only to the complainants.
All these aforesaid payments should be paid by the developer within two months from date of this order in default Complainants are at liberty to take shelter under Sections 25 & 27 of Consumer Protection Act, 1986 as may deem fit and proper for realization of the amount.
Let a copy of this order be given to the parties on free of cost.
Dictated and corrected by me.
President
D.C.D.R.C., Purba Bardhaman.
Member Member President
D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman D.C.D.R.C., Purba Bardhaman
Let the record be sent to the record room through the Registrar for necessary action.
