DATE: 04-09-2015
SRI KAMAL DE, PRESIDENT
FINAL ORDER
This case relates to refund of money for a sum of Rs. 5,50,000/- that was paid by the Complainants to the OP No. 2 as advance for the purpose of purchasing a flat along with interest and other reliefs under the Consumer Protection Act, 1986.
The factual matrix of the case of the Complainants, in short, is that the Complainants are residents of Tamluk, Purba Medinipur and the OP No. 1 is the owner of a land measuring 9.2 dec. under Mouza Padumbasan, J.L. No. 144 Plot Nos. 2235, 2235/2852 and 2237/2855 under Tamluk Municipality in the District of Purba Medinipur. OP No. 2 is the Developer-cum-Promoter of the said land. An agreement was executed between the OP No. 1 and 2 whereby it was decided that the OP No. 2 would construct residential flats over the plot in question at his own cost and thereafter, he would sell the same to different purchasers. OP No. 1 also executed a Power of Attorney in favour of the OP No. 2 for the purpose of development and construction of flats over such land in this regard. The proposed building was supposed to be a 4-storied building under the name and style, “Sohan Apartment”. The Complainants proposed to purchase one 780 sft. residential flat from the OPs in the South-Western side of the first floor of said apartment consisting of two bed-rooms, one dining-cum-drawing room, one kitchen, Toilet and balcony, including right to use common area in the proposed building. The Complainants on 02-06-2014 orally agreed to purchase the said flat at a consideration of Rs. 10,50,000/- from the OPs. OP No. 2 received Rs. 50,000/- in cash from the Complainants initially against money receipt. On 13-08-2014. Complainants made an agreement for purchase of the said flat with the OPs and the OP No. 2 received Rs. 5,00,000/- through bank of NEET and granted proper receipt for the same. On the date of agreement, OPs did not give copy of any Deed regarding title of the said land or copy of any Municipality sanctioned plan or soil test report to the Complainants. The Complainants’, although sought for the said documents from the OPs, but in vain. The Complainants subsequently came to know that there was some land related dispute going on between the co-sharers of the said property. So, the Complainants with a view to get rid of any imbroglio, sought for refund of the entire money that they paid as advance to the OP No. 2 and the OP No. 2 initially agreed to return the said money by the first week of December, 2014 and later on he took time till May, 2015 to return the same. However, for the reasons best known to him, the OP No. 2 reneged on his promise. OP No. 2 also threatened the Complainant No. 2 with dire consequences for which a GD was lodged with the Tamluk P.S. on 16-03-2015 vide No. 891. On 09-04-2015, OP No. 2 wrote a letter through his Ld. Advocate in respect of the said flat to the Complainant No. 1 and the latter in turn gave a letter on 22-04-2015 demanding refund of said advance money from the OPs, but to no good. It is alleged by the Complainants that the OPs have indulged in unfair trade practice and thus prayed for refund of the advance money along with some other reliefs as stated in the petition of complaint.
On notice, OPs entered appearance and contested the case by filing WV, contending inter alia that the instant case is not maintainable in the eye of law. It is also stated that the OP No. 1 is the owner of 9.2 dec. land under Mouza Padumbasan, J.L. No. 144, which is spreading over Plot Nos. 2235, 2235/2852, 2237/2855 under Tamluk Municipality in the district of Purba Medinipur and OP No. 2 is the Developer-Promoter of the said piece of land. The Complainants wanted to purchase residential flat from the OPs in the said apartment, namely, “Sohan Apartment” at the South Western side of1st floor, measuring 700 sft. On 13-08-2014, an agreement was executed in between the Complainants and the OPs and the OP No. 2 received a total sum of Rs. 5,50,000/- as advance from the Complainants. The OPs denied that the Complainants wanted to cancel the said agreement or demanded advance money or the OP No. 2 agreed to return the said money by the first week of December, 2014. It is the case of the OPs that they have obtained building plan approved and sanctioned from the Tamluk Municipality and on the basis of the said plan, the OPs constructed a four-storied building under the name and style, “Sohan Apartment”. As ill luck would have it, the said building plan got lost and accordingly, a GD was made before the Tamluk PS on 22-07-2014 being GD No. 1220/2014. As per the terms and conditions of the agreement, the Complainants cannot seek refund of their advanced money. However, the Complainants can cancel their booking and transfer the same to some other purchaser and get necessary adjustments thereof. It is denied by the OPs that they indulged in any sort of unfair trade practice, as alleged by the Complainants. The OPs have prayed for rejection of the instant complaint case.
Points for decision
- Whether the OPs adopted any unfair trade practice for the purpose of promoting and sale of the flat in question?
- Whether the Complainants are entitled to get refund of money and other reliefs, as prayed for?
Decision with reasons
Point Nos. 1 & 2:
Both these points are taken up together for the purpose of convenience of discussion and more so, the same are linked to each other.
We have gone through the pleadings of the parties and documents filed from the respective sides, as well as other materials on record.
The caustic controversy arising in between the parties is whether the OP No. 1 is the absolute owner of the land in question, measuring 9.2 dec. under Mouza-Padumbasan, J.L. no. 144, R.S. Plot Nos. 2235, 2235/2852, 2237/2855, District Purba Medinipur under the Tamluk Municipality, or not?
There is no denying of the fact that the OP No. 2 is the Developer-cum-Promoter of the said land. Traversed through the photocopy of Agreement for Sale executed in between the parties, wherefrom it transpires that there are 10 owners, including the OP No. 1 in respect of the land in question. Apart from the OP No. 1, his 9 sisters are also the co-sharers of the said Plot in question. They acquired the property as per Mahammadan Law after the demise of their father, Sk. Jasimuddin, who was the original owner of the property in question. From the photocopy of documents on record, it transpires that all but one among the nine sisters have executed Deed of Gift in favour of the OP No. 1. Thus, it is not forthcoming before us that the OP No. 1 has become sixteen anna owner in respect of the property in question, as so stoutly claimed by him.
This is one side of the controversy. The other part, as raised by the Complainants, is whether the OPs at all got any sanctioned building plan from Tamluk Municipality for developing such 4-storied building or not.
It is stated by the OPs that they obtained a building plan approved and sanctioned from Tamluk Municipality and on the basis of the said building plan, the OPs have constructed a 4-storied building over the plot in question. But, we are afraid, no sanctioned plan or copy thereof is placed on record from the side of the OPs during the pendency of this case.
Notwithstanding, It is stated by the OPs that the said building plan has been lost and a GD to this effect has been made before the Tamluk P.S. on 22-07-2014 being GD No. 1220/2014. From the averment in GD, it appears that the building plan allegedly got lost on 17-07-2014 at 4 p.m. It is noteworthy here that the agreement for sale was executed on 13-08-2014, i.e., long after the missing of the building plan, as alleged. Much water has flown down the Ganges in the meantime, but we are afraid that the OPs have not been able to procure any copy of the sanctioned building plan to vouch for the bona fide of their claim in this regard, though by any standard of imagination, it was not at all a Herculean task, provided due sincerity of purpose was there on the part of the claimant, i.e., the OPs. One Xerox copy of the plan though has been filed from the side of the OPs, on a closer scrutiny of the same, we find that it is neither signed nor approved by the competent authorities. So, it can logically be inferred that the sanctioned plan was non est as on the date of signing of the agreement between the parties or receiving advance to the tune of Rs. 5,50,000/- by the OP No. 2 from the Complainant.
We have no qualms, therefore, holding that the OPs adopted unfair trade practice or deceptive trade practice for the purpose of selling the flat in question to the Complainants. Accordingly, we think that the Complainants are entitled to get back the amount which they paid as advance to the OP No. 2.
It is supposed that the scheduled property should be free from all encumbrances, charges, mortgage etc. etc. as on the date of the agreement and such owner of the land should have absolute title over the property in question. As the OP No. 1 has not been able to establish that he is having 16 annas ownership over the land in question, more so, as the OPs have not obtained any approved sanctioned plan from the Tamluk Municipality, the Complainants, therefore, are entitled to get refund of full amount from the OPs that they have paid as advance. There is no document or Deed of partition or amiable partition forthcoming before us that the property or land in question was amicably partitioned by metes and bounds in between the legal heirs of deceased Sk. Jasimuddin, the original owner of the property in question. No paper of mutation is also forthcoming before the Forum to establish that the land in question has been mutated in the name of the OP No. 1. There is also no such clause in the agreement in question, executed between the parties, to the effect that if a purchaser intends to cancel his booking, he can transfer his booking to other purchaser and said amount would be refunded accordingly.
Considering all these spectrum of the case into perspective, we are of view that the Complainants are entitled to get refund of full amount paid as advance to the OP No. 2 along with interest and litigation cost.
Both these points are, thus, decided in favour of the Complainant.
Hence,
ORDERED
that the C.C. No. 47/2015 be and the same is allowed on contest against the OPs. OP No. 2 is directed to return, within 40 days, the advance amount of Rs. 5,50,000/- to the Complainants with interest @ 4% p.a. from this day till full and final payment. That apart, the OP No. 2 is also liable to pay litigation cost to the tune of Rs. 5,000/- to the Complainants. In the given facts and circumstances of the case, no order is passed against the OP No. 1. In case the OP No. 2 neglects to comply with this order within the stipulated time frame as stated hereinabove, the Complainants are at liberty to take recourse to execution against the OP No. 2 as mandated under the Consumer Protection Act, 1986.
