Dt. of filing- 09/08/2017
Dt. of Judgement- 27/12/2018
Mrs. Sashi Kala Basu, Hon’ble President.
This is a consumer complaint filed under section 12 of the Consumer Protection Act by the complainant namely Randeep Singh against Opposite Parties namely ( 1) Shri Bhumi Realty Pvt. Ltd. (2) Sanjay Agarwal ( Director ) (3) Gopal Malakar ( Developer ) and (4) Sri Abhay Malakar (landowner) alleging unfair trade practice on their part.
Complainant’s case in short is that in order to purchase a flat measuring about 550 sq.ft. under LIG Scheme in Meghmalar Residential Project C/O. Shri Bhumi Realty Pvt. Ltd. , described in schedule ‘B’ in the complaint Petition, he paid Rs. 3,98,000/- only out of total consideration price of Rs. 6,60,000/-. An agreement for sale dated 18.03.2014 was entered into by and between the parties. Complainant made the part payment of Rs.2,00,000/- and Rs. 75,000/- by three cheques and also deposited Rs.1,23,000/- by cash on 14.03.2014. As per agreement the construction of the building was to be completed by 01.01.2016 and possession was to be delivered but till filing of the complaint, no construction relating to said project was started. Complainant thus sent notice through his Ld. Advocate requesting Opposite Parties to deliver the khas possession of the flat or pay the advance consideration of Rs. 3,98,000/- along with compensation of Rs. 3,00,000/-. But inspite of service of notice, Opposite Parties have failed to deliver the flat or pay the amount. A complain being RBT/CC/187/2016 was filed before, by the complainant but same was dismissed by judgement dated 01.08.2016 on the ground that it was filed prematurely. Thus instant complaint case is field thereafter praying for directing the Opposite Party No.1 to deliver the Khas Possession of the flat along with the Completion Certificate and to execute and register the deed or in alternative to direct the Opposite Parties to refund the earnest money of Rs. 3,98,000/-only, to pay compensation of Rs. 3,00,000/- and litigation cost of Rs. 1,00,000/-.
Opposite Party no.4 has only contested the case by filing the written version denying the material allegations made in the complaint petition contending inter alia that the complainant is stranger to the O.P. No.4. On being approached by OP No.3 to purchase ’A’ Schedule Property to which OP No.4 is the owner, he agreed to sell but as OP no.3 never paid any further amount, he returned the earnest money paid by OP No.3 and the sale was cancelled. OP No.4 never received any money or cheque from the complainant. Thus OP No.4 has prayed for dismissal of the complaint petition.
Other Opposite Parties did not take any step nor filed any written version, thus case proceeded exparte against them. Complainant has filed the copy of agreement of sale, copy of receipts acknowledgement receipts of cheques and money receipt showing payment of Rs. 1,23,000/-and copy of notice sent through Ld. Advocate.
In course of evidence, complainant has adduced evidence by filing affidavit-in-chief followed by cross-examination by way of filing questionnaire and reply thereto. OP No.4 did not adduce any evidence.
Complainant filed the written notes of argument.
Thus following points require determination:-
- Whether there has been unfair trade practice by the Opposite Parties ?
- Whether the complainant is entitled to the relief as prayed ?
Decision with reason
Point No. 1 & 2 :
Both these points are taken up together for discussions for the sake of brevity and convenience.
It appear from the agreement for sale that agreement was entered into between the parties on 18.03.2014 whereby Purchaser agreed to purchase a self contained flat having super built area of 550 sq.ft. and the rate of the said flat was Rs. 1200/- sq.ft. i.e. total sum for Rs. 6,60,000/-. As per the said agreement flat was agreed to be handed over by 2016. Apparently no construction has been raised towards the project and thus flat has not been handed over as agreed.
In order to substantiate the payment, complainant has filed receipts showing payment of Rs.2,00,000/- by two cheques being cheque numbers 017447 and No. 017448 dated 21.10.2011 and Rs. 75,000/- only by cheque no 017450 dated 24.10.2011 and money receipt dated 14.03.2014 showing payment of Rs. 1,23,000/-. Statement of bank account is also filed about withdrawal of the amount paid by those cheques. According to the complainant rest of the amount towards consideration price was to be paid at the time of handing over of the possession of the flat ; which is also stated in the agreement. However , it may be pertinent to point out that as per agreement the consideration amount was to be paid to the OP/developer . The relevant recital in the agreement provides that “developer will complete the construction of the building within 01.01.2016”.
“After making full payment by the purchaser to the developer, the developer will execute sale deed in favour of the intending purchaser at his own cost and expenses but then sale deed will be prepared by the lawyer of the developer but the purchase will have every right to verify it at his own cost”.
It is further stated in the agreement that “ In case of failure to handover the flat by the developer to purchaser, the developer will refund entire advance money to the purchaser with 10% yearly interest”.
So from the above mentioned terms in the agreement, it is evident that OP/developer received the money and undertook to complete the construction and hand over the flat. The agreement also bears the signature of developer only. Even though it is mentioned in place of signature “ for self and constituted attorney of the owners” but no power of attorney has been filed in this case. On the contrary, it is specifically mentioned in the agreement that owners will grant registered Power of Attorney to the developer as per Provision of West Bengal Registration Act and accordingly entering into this agreement”.
So it is evident that on the date of execution of agreement for sale, no power of attorney was executed by the owner /OP No.4. It supports the case of OP No.4 that OP No.3 paid earnest money and promised to purchase the land mentioned in ‘A ‘schedule but since OP No.3 did not pay any further money nor intended to purchase the same, he cancelled the sale.
In the agreement in this case OP no.4 is neither a signatory nor it could be said that developer was constituted attorney of OP No.4. Thus though the case of unfair trade practice is established against OP No.1 and its directions being OP No.2 & 3 but OP No.4 cannot be held liable. So complainant is entitled to refund of the amount of Rs. 3,98,000/- only along with interest.
These points are thus answered accordingly.
Hence
Ordered
CC/475/2017 is allowed exparte against O.P No.1 to 3 but dismissed on contest against OP No.4.
Opposite Parties no.1 to 3 are jointly and severally directed to refund Rs. 3,98,000/- to the complainant and also to pay compensation in form of interest @ 10% p.a. from the date of last payment i.e. 14.03.2014. Opposite Parties 1 to 3 shall also pay litigation cost of Rs. 10,000/- only to the complainant. They are directed to pay entire amount within two months from the date of this order failing which the amount shall carry above mentioned interest @ 10% p.a. till realisation.
