DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO.103/2014
Date of Filing: Date of Admission Date of Disposal:
26.02.14 04.03.2014 22.07.2015
PETITIONER = Vs. = O.Ps.
Smt. Bratati Das, 1. Shri Nishit Sarkar,
W/o. Sri Kausik Das, S/o. Late Nilmony Sarkar,
D/o. Late Jitendranath Das, Jyangra Battala, P./O. Jyangra,
59, Balaram Majumder Street, P.S. Rajarhat, Dist- 24 Pgs(N),
P.O. Hatkhola, Kolkata- 700059.
P.S. Shyampukur, 2. Smt. Amita Naskar,
Kolkata- 700005. W/o. Sri Dipuendu Naskar,
R.C. 45, Raghunathpur,
P.O. Raghunathpur,
P.S. Rajarhat, Dist- 24 Pgs(N),
Kolkata- 700059.
3. Sri Priya Ranjan Dey,
S/o. Late Rai Mohan Dey,
Jyangra, P.O. Jyangra,
P.S. Rajarhat, Dist-24 Pgs(N),
Kolkata- 700059.
4. Kumari Rita Mondal,
D/o. Late Hazarilal Mondal,
Jyangra, P.O. Jyangra,
P.S. Rajarhat, Dist- 24 Pgs(N),
Kolkata- 700059.
5. Smt. Parinita Mondal,
W/o. Sri Manab Mondal,
Aijunpur(Purbapara),
P.O. Arjunpur, P.S. Rajarhat,
Dist- North 24 Pgs, Kol-700059.
6. Sri Kaushik Mondal,
S/o. Sri Biswanath Mondal,
7. Biswanath Mondal,
S/o. Late Kalipada Mondal,
Jyangra, P.O. Jyangra,
P.S. Rajarhat, Dist- 24 Pgs(N)
Kolkata- 700059.
J U D G E M E N T
The fact of the case, in short, is that the O.P. Nos. 2 to 7 are the owners of the said land and in view to develop the aforesaid Land the O.P. Nos. 2 to 7 have entered into an agreement for development with the O.P. no.1 and the O.P. No.1 also empowered the O.P. No.1 to do all acts, deeds, things including the right to enter into the agreements with intending purchasers.
The complainant stated that the complainant visited the O.P. No.1 and approached to purchase a flat in the 2nd floor measuring 773 Sq. ft, being No. A-3 for a consideration of Rs. 13,94,000/- and the complainant paid Rs. 10,000/- as booking money and an agreement for sale was entered into by and between the complainant and the O.P. No.1 on 07.11.11 and the complainant paid an amount of Rs. 6,50,000/- to the O.P. No.1 as advance and thus the complainant paid Rs. 6,60,000/- to the O.P. No.1.
The complainant further stated that after completion of the said flat the measurement of the flat comes to approximately 600 Sq.ft and the complainant refused to purchase the said flat as the same did not suit her purpose as she was in need of much more area. Then the O.P. No.1 proposed to transfer a flat in favour of the complainant in the 4th floor measuring 820 Sq.ft and the complainant finding no other alternative accepted to purchase the flat in the 4th floor and then the O.P. No.1 only changes four page of the agreement for sale dated 07.11.11 keeping the other pages intact.
The complainant also stated that she paid further amount of Rs. 1,00,000/- on 17.02.12, Rs. 1,30,000/- on 25.01.12, Rs. 1,00,000/- on 28.08.12 and thus the complainant paid an amount of Rs. 9,90,000/- to the O.P. No.1 and the latter received the said amount by issuing money receipts.
The complainant further stated that she requested the O.P. No.1 to complete the schedule flat but the O.P. No.1 assured her to complete the flat within the stipulated period and the period for completing the flat was fixed within October, 2012.
The complainant also stated that before the expiry the stipulated period she requested the O.P. no.1 to complete the flat and then the later informed the complainant that due to some financial crisis some few months would required to complete the flat and as the complainant invested huge amount of money, she had no other alternative but to wait for as per assurance of the O.P. No.1.
Dictated and corrected Contd. …. 3/-
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The complainant further stated that she also informed the matter to the O.P. Nos.2 to 7 but they did not take any steps rather deferring the matter on various false pretexts and lastly on 20.02.14 when the complainant lost her patience then the O.Ps told her that they are not in a position to transfer the flat at the old rate and if the complainant failed to pay the enhanced rate then they will transfer the flat to third party.
The complainant also stated that the complainant on scrutiny came to know that no plan was sanctioned for constructing fourth floor and the O.P. No.1 only to deprive the complainant and to cheat the money had changed four pages of the agreement keeping the date and other pages intact.
The complainant further stated that she was all alone ready and willing to perform her part of contract in due time but the O.Ps failed and neglected to perform their part of contract. The O.P.No.1 entered appearance in this case and filed his written version wherein he categorically admitted the fact that he has entered into the agreement for transferring the flat in the 4th floor but at that time no plan was sanctioned from the Municipality and it is further admitted by the O.P. No.1 that till date no plan is sanctioned for constructing 4th floor of the building. Hence the complaint.
O.P. No. 1 has contested the case by way of filing written version.
O.P. No.1 stated that it is denied that the complainant visited the O.Ps and approached them to sell out a flat in her favour and O.P. No.1 being the developer and constituted Attorney of the O.P. Nos. 2 to 7 intimated the complainant that a flat measuring more or less 820 Sq.ft on the 4th floor of the building situated in or over the ‘A’ schedule property was available for the complainant.
The O.P. No.1 further stated that it is the complainant who inspected all the deeds and documents relating to the property and after having satisfied with everything decided to purchase the flat measuring more or less 820 Sq.ft on the fourth floor of the building situated in or over the ‘A’ schedule property at a total price of Rs. 13,94,000/- knowingly that the O.P. no.1 was not at all interested to enter into such agreement as at that point of time the sanction of the fourth floor was not completed. The further statement regarding the payment of booking money and payment at the time of execution of agreement is however true and admitted by the O.P. No.1. At the time of booking of flat the O.P. No.1 categorically stated to the complainant that the plan of G+4 of the said building has not been sanctioned yet and so it will not be possible for him to execute any
Dictated and corrected Contd. …. 4/-
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agreement in respect of any flat in the 4th floor but the complainant did not accede to such proposal and rather compelled the O.P. No.1 to enter into an agreement with regard to a flat on the fourth floor with the complainant on mutual understanding that the sanction of the building plan of the fourth floor may be done in the meantime. It is pertinent to mention that the complainant further requested the O.P. No.1 that she have to procure home loan from financial institution for purchasing the flat and as such it will be proper if the pages containing flat No of the agreement is changed and accordingly on mutual understanding some of the pages of the agreement were changed for suiting the purpose of the complainant as at that point of time both the parties were well aware of the fact that the sanction of the fourth floor of the building was yet to be done.
O.P. No.1 stated that it is denied that on 07.11.11 it was settled by the parties that the O.P will hand over a flat being No.A-3 measuring 773 Sq.ft super built up area in the 2nd floor of the building and both parties have entered into an agreement for sale on 07.11.11 and paid Rs. 6,60,000/- on that date but after completion of the 2nd floor flat the area of the flat was more or less 600 Sq.ft and when the complainant refused to purchase the said flat because she need of much more area than that of the completed area and accordingly the O.P. No.1 then proposed the complainant to purchase the flat in the 4th floor measuring 820 Sq.ft and the complainant finding no other alternative accepted the proposal of the O.P. no.1 and accordingly changed four pages of the agreement dated 07.11.11. In this regard the O.P. no.1 stated that the entire story as made out in such para is manufactured and absolutely false as because it is only on the request of the complainant the O.P. no.1 for the purpose of facilitating the complainant for obtaining loan changed the pages of the agreement dated 07.11.11 as on the date of agreement the sanction of the building of the 4th floor was not obtained but the sanction of the 2nd floor was completed. Moreover, the complainant was all along knowing fully well that the sanction of the 4th floor was yet to be done was interested in entering into agreement for the 4th floor flat measuring 820 Sq.ft and she was not at all interested to purchase any flat less than that area.
The O.P. No.1 stated that the complainant deliberately and intentionally with an illegal motive completely twisted and changed the actual terms in the complaint then what has been actually mentioned in the agreement for sale dated 07.11.11. In the agreement for sale dated 07.11.11 actually it has been stated in clause 3 that the purchaser shall pay Rs. 6,50,000/- only on the execution of the agreement and further agrees to pay the rest amount in the following manner-
Dictated and corrected Contd. …. 5/-
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First floor roof casting 20%
Second floor roof casting 20%
Third floor roof casting 20%
Fourth floor roof casting 10%
Brick Wall 10%
Marble(Flooring) 10%
Remaining portion at the time of possession and/or registration whoever is earlier. Admittedly the complainant have made total payment of Rs. 9,90,000/- till 28.08.12 and thereafter have not made any payment to the O.P. No.1 and hence further payment of Rs. 4,04,000/- became due but the complainant have not taken any effort to pay the same till date and the O.P. No.1 have also not claimed the balance amount from the complainant knowingly only because the sanction of the building plan of the fourth floor of the building was still due.
The O.P. No.1 stated that the O.P. Nos. 2 to 7 have not executed any registered Power of Attorney in favour of the O.P. no.1 for which the O.P. no.1 had to face manifold problem and difficulty in completing all the construction works of the building and also execute and register proper deed of conveyance in favour of the intending purchasers including the complainant and only due to such reason the O.P. No.1 requested all the intending purchasers including the complainant to bear for few more months in order to complete his part of contract.
The O.P. No.1 stated that it can easily be revealed that the O.P. No.1 was all along ready and willing to give delivery of possession as well as register the flat in the name of the complainant and always thought about the interest of the complainant for which the O.P. no.1 bought some time from the complainant thinking that in the meantime the O.P. Nos. 2 to 7 will certainly execute and register a General Power of Attorney in favour of the O.P. No.1 but they did not do so and result of which the coveted construction work of the fourth floor could not be completed due to non sanctioning of the fourth floor building plan.
In this pretext the O.P. No.1 stated that the complainant actually knew that the fourth plan of the building was not sanctioned due to non execution of the registered power of attorney by the landowners in favour of the developer over which the O.P. No.1 had no control at all but the complainant suppressing the
Dictated and corrected Contd. …. 6/-
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said fact deliberately and intentionally have made a false and imaginary story before the Ld. Forum and claimed for relief which she is not at all entitled to for not coming with clean hands. The O.P prayed for dismissal of the case.
O.P. Nos. 2 to 7 denied all the allegations of the complainant.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
There is no dispute that the complainant is a consumer under the C.P. Act, 1986.
O.P. No.1 has filed affidavit-in-chief and also the complainant filed affidavit-in-chief. We have perused the affidavit-in-chief and other materials on record.
From para 7 of the affidavit-in-chief of O.P. No.1, it appears that O.P. No.1 admitted that the complainant entered into agreement with him to purchase the flat measuring more or less 820 Sq.ft on the 4th floor of the building situated in or over the ‘A’ schedule property for a consideration of Rs. 13,94,000/- though the O.P. No.1 was not at all interested to enter into such agreement as because at that time the sanction of the fourth floor was not obtained. It is admitted that the complainant paid a sum of Rs. 10,000/- as booking money and subsequently paid Rs. 9,90,000/- as part of the consideration money.
The O.P. No. 1 admitted that Rs. 4,04,000/- became due but the O.P did not claim the balance amount as the sanction of the fourth floor of the building was not obtained. O.P. No.1 admitted in para 7 that some pages containing flat in the agreement were changed as the sanction of the fourth floor was not obtained. Another admitted thing is that O.P. Nos. 2 to 7 have not executed any registered power of attorney in favour of the complainant and for that O.P.No.1 had to face problem and difficulty in completing all the construction works and also execute and register the proper deed of conveyance in favour of the complainant. Then it appears that O.P. No.1 admitted the execution of the agreement for sale with him and payment of consideration money paid by the complainant for Rs. 9,90,000/- and also not obtaining sanction plan of the fourth floor of the building and non execution and registration of the flat in question in favour of the complainant. When O.P. No.1 has received the consideration money he had obligation to hand over the possession of the flat to the complainant and also to execute and register the sale deed in favour of the complainant. But he has not done so admittedly.
Dictated and corrected Contd. …. 7/-
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Accordingly, we are of the view that the complainant is entitled to get relief against the O.Ps.
Hence
Ordered,
that the complaint be and the same is allowed on contest against the O.P.No.1 and exparte against the O.P. Nos. 2 to 7.
O.P. No.1 is directed to hand over and delivery the possession of the ‘B’ schedule flat to the complainant in habitable condition according to the agreement for sale dated 07.11.11 within two months from the date of this order.
After receiving the balance consideration money from the complainant, the O.Ps are jointly and severally directed to execute and register the deed of conveyance in favour of the complainant within two months from the date of this order. In default the complainant is given liberty to execute and register the deed of conveyance through this Forum after depositing the balance consideration money in this Forum.
O.P. No.1 is directed to bear the enhanced registration cost at the time of registration of the deed of conveyance.
The O.Ps are directed to hand over the completion certificate to the complainant after the registration of the flat.
The O.P. No.1 is directed to pay compensation of Rs. 50,000/- and litigation cost of Rs. 15,000/- to the complainant within two months from the date of this order.
In the alternative O.P. No.1 is directed to refund the money with interest of 18% p.a. from the date of filing of the case till final payment, failing which O.P No-1 shall have to pay sum of Rs 250/- per day from the date of this order till it realization, as punitive damages, which shall be deposited by the O.P No-1 in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
