Complainants by filing this complaint have submitted that complainants were searching for purchasing a flat and accordingly approached the OP by purchasing a flat at their newly purchased building lying and situated at 51, Ultadanga Road, Kolkata – 700 004 under P.S. Ultadanga against valuable consideration.  Accordingly, complainants and OPs entered into an agreement to sale on 27-05-2007 and in terms of the said agreement complainants were liable to pay a fixed amount of Rs.11,25,000/- for the said flat at the said premises on the 3^rd floor and complainants also paid Rs.7,30,000/- to the OP but OP did not complete the said flat and the building in terms of the provision of the said agreement and did not handover the said flat to the complainants.  As per terms as enumerated in the said agreement OPs are liable and responsible to execute and register the deed of conveyance in favour of the complainants but the OP failed and neglected to do so.  As per Clause 4 of the said agreement developer and owner are liable to handover the possession of the said flat to the complainants after completing the same in all respects within 18 months from the date of the said agreement but the OPs did not discharge such obligations on their part and for such failure on the part of the OP regarding completion of the flat and handing over the same to the complainants within the stipulated period as per provision of the said agreement so executed between the complainants and the OPs constitute a case of negligence and deficiency in service on the part of the OPs but complainants severally requested the OPs to complete the flat in all respect and by handover the same to the complainants and also to execute and register the Deed of Conveyance in respects of the said flat in favour of the complainants but the OPs did not pay any heed to such request of the complainants.  In the above circumstances complainants sent legal notice on 02-09-2013 which was received by the OPs but they did not come for redress.  In the above circumstances, finding no other alternative for negligence and deficient manner of service complainants filed this complaint for redressal and also for direct the OPs to handover the flat after completion along with completion certification and registration of the same and compensation etc.

          On the other hand, OPs Sisir Das and Amita Roy by filing written statement have submitted that the complaint is not maintainable and barred by limitation and the entire allegation is false and moreover, they have alleged that the complainants did not comply their part of obligation in terms of the agreement as a result the answering OPs cancelled the said agreement since then the dispute anyway will not remain as consumer dispute and, as such, the agreement is not valid in respect of said flat and complainants’ present complaint is not maintainable and practically complainants may get such relief in Civil Court but wrongly approached before the Forum.

          OPs admitted that complainants entered into an agreement with the OPs on 27-05-2005 but OP signed in the said agreement on 04-06-2007.  But they have admitted that they took Rs.7 lakhs as consideration and Rs.30,000/- as loan from the complainants.  But balance consideration of Rs.2,500/- was not paid in time so, OP sent a legal notice on 05-12-2010 calling upon to pay the sum but complainants did not pay it so the said agreement was cancelled on 27-05-2007 as per terms and condition of the agreement and in the above circumstances, complainants cannot get any possession or cannot get any relief in respect of the flat or etc.  In the result, OPs prayed for dismissal of the case.

Decision with Reasons

After careful scrutiny of the compliant and the written version and also considering the materials on record including documents and agreement to sale dated 27-05-2007 it is clear that OPs by filing their written statement admitted that the complainants paid Rs.7 lakhs to the OPs out of total consideration of Rs.11,25,000/- and balance Rs.30,000/- also received but OPs are claiming that it is loan.  Whatever it may be, OPs has received Rs.7,30,000/- from the complainants  in respect of the flat.  Agreement was executed on 28-05-2007 but OP1 signed on 04-06-2007 for that reason the agreement cannot be treated as a void or otherwise defective but admitted position is that OPs entered into an agreement to sale of flat in favour of the complainants at a final consideration of Rs.11,25,000/- and OPs had already received Rs.7,30,000/-.  Fact remains as per Clause of the agreement within 18 months from the date of execution the possession would be completed delivery.  Then it is clear that it is the duty of the OP to hand over possession when he has already received vital part of the total consideration and possession ought to have been delivered at the end of 2012 i.e. December, 2012.  But peculiar fact is that OPs have claimed that they have cancelled the said agreement on 15-12-2010 or after that.  Now, it shall be considered whether there was any fault on the part of the OPs.  OPs have failed to produce any paper before Forum to show that the construction or the proposed construction has been completed and practically no completion certificate is submitted by the OP to show that even after completion of the flat complainant did not receive it.  So, up to this stage it is found that OPs have miserably proved that the construction of the flat have been duly completed and completion certificate has been granted by the KMC and that was supplied to the complainant along with such letter for payment of balance amount.  So, laches is on the part of the OPs, it is proved beyond any manner of doubt.  Fact remains it is the mandate of the law that whether he is promoter or developer as per agreement must have to comply the condition and shall have to discharge his liability that is the seller’s liability.  If it is found that sellers have to failed to discharge their liabilities even after receiving the most of the part of the total consideration in that case builders or the promoters or the owners have no right to cancel any agreement, but right of cancellation of agreement shall arise when laches on the part of the intended purchaser are proved and it is specifically decided by the Hon’ble National Commission in 2013 (3) CPR 509 NC that builders or promoter cannot harass the intended purchaser after extracting money from the purchaser and in this case a vital part of the total consideration has been extracted by the OPs from the complainant but possession has not been delivered, and flat has not been completed.  No letter has been sent along with the completion certificate that the flat has been completed and possession certificate has been handed over to the complainants so the complainants may be satisfied before payment of the balance amount but in the present case OPs are money extractor, developer and owner.  They extracted Rs.7,30,000/- out of Rs.11,25,000/-.  Complainants are willing to pay that amount but before that he wants three papers 1) completion certificate, 2) inspection report regarding completion of his flat which they intend to purchase and 3) building sanctioned plan.  Nothing was supplied by the OPs at the time of sending the notice and truth is that building has not yet been completed because this Forum has permitted the OPs to produce completion certificate but OP was silent and their defence is that there is a ruling of the State Commission that the cancellation of deed cannot be challenged before the Forum.  But we have gone through the ruling but unfortunately there is National Commission Ruling wherefrom it is the found that the developer or promoter are extracting money from the intended purchaser and thereafter, it is their own intention to cancel it and to sell the flat at a higher rate but that should be controlled and in the present case we find no doubt laches, negligence, deceptive manner of trade practice and unfair trade practice on the part of the OPs are well proved.  Fact remains no case has been filed by the OP before the Civil Court for cancellation of the said document and for any declaration before Civil Court.  So, mere letter for cancellation cannot cancel a document if laches on the part of the intended purchaser is not proved and in this case OPs have failed to prove by any material that complainants as intended purchasers have their laches and they failed to perform their part performance.  Fact remains it is a settled principle of law if the laches on the part of the intended purchasers is not proved any sort of cancellation itself is void ab initio in its inspection for which any declaration is not required from the Civil Court and in this case the cancellation letter is void.  When OPs’ laches are proved well that OPs have not completed the flat, they have not submitted the completion certificate of the said flat and they have not submitted the valid sanctioned plan of the flat in question to the complainants along with that letter with the prayer for taking possession.  So, no doubt that letter was sent by the OPs only to grab the money of the complainants and fact remains these OPs invested such huge amount of Rs.7 lakhs in their trade and business and they want to get more profit by selling the flat to the 3^rd person and if such practice is not controlled by the Fora then there is no necessity of Fora in India.  Some casual technicalities are taken into account by Fora without considering the spirit of the law which is even observed by the Apex Court and particularly in this case the judgment as produced by the OPs is not applicable in this case.  It is surprising if the total fact has not been properly assessed by the Forum.  Invariably decisions should be casual by following another ruling but all these rulings are not applicable in each and every case.  So, the ruling as produced by the OPs is not applicable and practically principle of law is otherwise what we have already disclosed in our previous paras of judgment.  Moreover, the unreported judgment of SC Case No. FA 273/2010 dated 11-11-2010 is considered and considering the facts and circumstances it is found that facts and circumstances of the case and the present case is completely different and unreported judgment of SC Case No.FA 182/11 dated 22-11-2011 is also considered and it is also found that facts and circumstances is different from the case and in the first referred case practically intended purchaser took back the deposited advance amount but in this case complainants did not receive advance amount and OPs have not sent any money along with so called calculation and letter till filing of the written version OP has not paid the amount what he received from the complainants what indicates this OPs have adopted unfair trade practice, deceptive trade practice, they are cheater and they are money hunter, they are grabbing money from the poor, intended purchaser and with their money they are constructing building and trying to sell it to the 3^rd party at a higher rate.  Consumer Protection Act is here and there to treat them but its application in most of the cases is found not satisfactorily sometimes same are in favour of the promoters, builders through vital materials are in favour of the complainants to prove the case and in this particular case all materials have been produced by the complainants and OPs have admitted the same as genuine.  Everything is admitted but fact is that OP has alleged that complainants did not pay the balance amount in time.  Question of payment of balance amount in time shall arise if the OP can handover the flat in time within 18 months but he failed to do that by December, 2008.  But cancellation was sent on 15-12-2010 i.e. another after two years.  So, relaxation can be given by the Fora to the promoters and developers when social legislation must have to give relief in favourt of the consumer brushing aside all technicalities but relying upon this unreported judgment of the SC we have gathered that if we rely upon that judgment then we find that we shall follow a wrong decision because National Commission has also observed that after taking huge amount developers cannot cancel or harass the purchaser but in this case OP has been harassing the complainants till now and they have adopted an unfair trade practice and for that they sent cancellation letter when the OP has failed to prove that the complainants have their any fault but from OPs’ own written version it is found OP is at fault till now and OP failed to complete the flat till December, 2008 and up to December, 2010 he failed to complete the flat in question and till now and during continuation of this case OPs failed to produce any sanctioned plan and also completion certificate in respect of the building.  Then it is clear laches is still with OPs.  OPs are cheater, money hunter, squeezer of the money from the intended purchasers and they are black marketeers in respect of Reality Estate Business.  So, we are convinced to hold that complainants have been able to prove all sorts of deficiency, negligence on the part of the OPs, their unfair trade practice and all other vices in respect of their Reality Estate Business.  So, complainants are entitled to get such relief.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- (Rupees Ten thousand only) each against each OPs. 

          OPs are hereby directed to handover the possession of the flat along with completion certificate issued by the KMC and also a copy of sanctioned plan and to execute Deed of Sale in favour of the complainants within one month from the date of this order failing for each month delay OPs jointly and severally shall have to pay Rs.25,000/-(Rupees Twenty Five thousand only) as penal damages till full satisfaction of the decree.

          For causing harassment and mental pain and agony and also for sufferings of the complainants OPs jointly and severally shall have to pay a sum of Rs.50,000/- (Rupees Fifty thousand only)as compensation to the complainants within one month from the date of this order.

          For adopting unfair trade practice and for deceptive trade practice each OPs shall have to pay punitive damages of Rs.25,000/- (Rupees Twenty Five thousand only)each to this Forum and it is imposed only to check the mal-practices and deceptive trade practices including unfair trade practices as adopted by the OPs.

          OPs are directed to comply the order very strictly within one month from the date of this order failing which penal action shall be taken against them u/s.27 of the C.P. Act for which further penal action and penalty may be imposed.  In any case having legal technicality complainants would not be able to get register deed of sale being executed by the OPs in that case complainants shall have to pray for execution of the same by the Forum and Forum shall execute it after taking possession of the flat in question and complainants are directed to deposit the balance consideration as refundable amount to the Forum positively within one month.  As and when OPs shall have to execute the sale deed and register the same and handover the possession of the complainants OPs shall have to get the amount from this Forum.