Order-12.
Date-18/04/2018.
AUTHOR. RABIDEB MUKHOPADHYAY, MEMBER
The case of the Petitioner/Complainant in a nut-shell is that, the petitioner was offered to purchase a flat of 500 sq. ft including super-built up area, on the 3rd floor, front side at 67 D.C.Dey Road, P.S. Tangra, Kolkata- 700015, which was accepted by the complainant/petitioner. The total price of the flat was determined at Rs.10,00,000/-.
The petitioner/complainant for the purpose of purchasing the flat paid Rs.1,50,000/- on 01.08.2015. Thereafter the petitioner/complainant paid on different dates, Rs,2,00,000/- on 23.09.2015, Rs.50,000/- on 04.11.2015, Rs.50,000/- on 30.12.2015 Rs.1,00,000/- on 06.04.2016, Rs.50,000/- on 12.04.2016 and further Rs.10000/- on 12.04.2016, totaling Rs.610,000/-, which has been duly acknowledged by the developer, and is evident clearly from his signature on the back of the non-judicial stamp paper of the agreement.
The developer/builder/contractor agreed to sell out the flat at a price of Rs.10, 00,000/-. It is pertinent to mention that the purchaser has paid more than 60 percent of the price of the flat. All the moneys have been paid to Sk. Jilani, the developer in the case.
The petitioner has waited for a considerable period of time to get the flat delivered by the developer, which he could not deliver as yet. It was stipulated in the agreement that the flat would be delivered within 6 months from the date of agreement which was signed on 07.09.2015.
When repeated requests to deliver the flat did not evoke any response and yielded no result, the petitioner was compelled to ask for refund of the paid money Rs.6, 10,000/- for purchasing the flat along with interest at the rate of10 percent. The petitioner has also prayed for Rs.1, 00,000/- for continuous harassment and for mental agony together with cost of the suit Rs.20,000/-.
Written Version by OP-2
Opposite Party No.2 stated that.
The complaint is not maintainable against opposite party no.2, as no transaction took place with the complainant for delivery of the flat in question. The petition of the petitioner has been wrongly arrayed against the opposite party No.2, who is not responsible for any transaction occurring with the opposite party No.1.
The OP-2 also admitted that he is one of the co-owners and the other part of the ownership is lying with opposite party no.3.
OP-2 stated that the opposite party no.1, i.e. Sk. Jilani, the developer / contractor / builder has collected all the moneys from the petitioner promising him to deliver the flat within 6 months from the date of the agreement. It is also stated by OP-2 that the agreement had been signed between the petitioner and the opposite party No.1, Sk. Jilani, which had been duly endorsed and witnessed by Paresh Hazra, where the opposite party no. 2 has no hand and is not involved in the matter as stated in the petition.
It is also stated that the opposite party no.1 Sk. Jilani at the rate of Amjad collected the entire amount of Rs.6,10,000/- and the opposite party no.2 is in no way involved for collection of money and for delivery of the flat as agreed by opposite party no.1, Sk. Jilani in the agreement signed by him in September, 2015.
It is admitted by OP-2 in his WV that it is the opposite party no.1, who is guilty of deficiency in service to the petitioner and the Ld. Forum would be pleased to direct the opposite party no.1, to refund the amount of Rs.6, 10,000/- so collected by opposite party no.1. That it goes without saying that the opposite party no.2 has no hand in transaction between the petitioner and the opposite party no.1. So, the opposite party no.2 should be excluded from the purview of any deficiency which might have been caused for non-compliance of the agreement being signed by the petitioner and the opposite party no.2 should be exonerated from the purview of the allegation.
Written Version by OP-3
Opposite party No.3 stated that it is true that the respondent no.3 is one of the owners of premises No.67, Debendra Chandra Dey Road, P.S. – Tangra, Kolkata – 15 by virtue of a registered Deed of sale in the year 1994, measuring an area 1 kottah 8 chittaks be the same or little more or less from its erstwhile owners.
It is also admitted that the O.P No.3 had entered into an agreement for development of the said premises with the other co-owner Smt. Dipali Hazra who is also one of the owners of the other part of the said premises by virtue of a registered Deed of Sale comprising an area measuring 1 kottah 8 chitaks be the same or little more or less from the recorded owners in the year 1994.
Both the O.P No.2 and 3 entered into an agreement for development of the said premises by making new construction of different flats in different floors and in that agreement the allocation of the promoter and developer had been clearly mentioned. It is also mentioned therein that the O.P. No.2 & 3 have also executed a registered Power of Attorney in favour of the promoter i.e. O.P. No.1 of this instant case. The promoter was given a right to sale flats to the different prospective buyers from his allocation as mentioned in the said development agreement and not beyond that.
It is said in the WV by OP-3 that the petitioner 1st party shall not claim to provide and deliver him a completed possession of one flat measuring about 500 sq.ft. including super build up area on the front right side of the 3rd Floor along with attached bathroom / privy and water facility at the above said premises completed with plaster of Paris walls, concealed wiring, tiles flooring, doors and sliding windows to the petitioner or and /or claim demand any money from the petitioner / O.P. No.3. It is further prayed that the O.P. No.3’s name should be expunged from the instant petition.
The petitioner/complainant is not entitled to claim any portion or flats from the O.P. No.3. The petitioner/complainant is not also entitled to claim or demand any money from the O.P. No.3. The petitioners name should be expunged from this case.
OP- 1 has not filed any Written Version.
Points for Discussion
- Whether the complainant is a consumer under the OP-1/developer;
- Whether the OP-1/ developer has any deficiency in service;
- Whether the complainant deserves relief.
DECISION WITH REASONS
1) It appears from record that Rs.610, 000/- has been paid by the complainant out of total consideration of Rs.10, 00,000/- as averred in detail at complaint para -6. Said payments have been received by Sk. Jilani, OP-1 under his signatures as reflected on the reverse page of Non-Judicial Stamp bearing no. 89038 (Running Page-8 of the complaint), purchased from P.K Das, (Govt.) licensed stamp vendor on 31.08.2015.
2) As per clause 1 of terms and conditions for Sale dated 07.09.2015 (though parties signed on 01.09.2015), the OP-1 Sk. Jilani agreed to hand over possession of completed 500 sq. flat as described at second Para, second page of the complaint and at the first para, page 2 of the Agreement (Running Page-9 of complaint) within 6 months from the date of Agreement dated 07.09.2015. Even after that, the last installment was made on 12.04.2016 and the rest was to be paid on registration.
3) As per clause-5 of the T and C of the Agreement, Deed of Conveyance should be executed on the date of delivery of possession and clause-6 stipulates registration of flat at the cost of the complainant
4) It needs to be mentioned that time of delivery expired more than two and half years ago but no delivery of possession has yet been effected though maximum amount of consideration has been paid in installments as per clause -2 of T and C of Agreement (Running Page-10 of complaint
5) As stated at para-10 of the complaint, no tangible action has been adopted by the developer (OP-1). The complainant stated that he could not wait for indefinite period for such possession and his hopes and expectations had been frustrated.
6) On the outcome of situation stated above and having been severely frustrated for not having his dream flat even after payment of maximum amount of consideration, the complainant asked the OP-1 for refund of the paid up money of Rs.610000/- with 10 percent interest till full realization as stated at complaint para-12.
7) OP-1, Sk. Jilani did not file WV and did not take part in the proceedings in spite of receiving notice. It denotes that he did not want to assist the count in finding the truth because he knows the truth very well. The evidence of affidavit of the complainant remains unchallenged. So he has to take the responsibility of the claims lodged by the complainant.
8) Both OP- 2 and OP-3 admitted in their respective WVs that they entered into development agreement with OP-1 but they had not any role to play in the instant case as they were not the parties to the Sale Agreement dated 07.09.2015 .Both OP-2 and OP-3 stated that OP-1 is guilty of deficiency in rendering the service to the complainant.
So, OP-2 and OP-3 have no obligations towards the complainant and no case stands against them.
9) It is crystal clear that the complainant paid consideration money for getting the possession of the flat in question, as per the terms of agreement, which the OP-1 received, under signature.
So, the complainant is a consumer under OP-1, as defined u/s 2(i) (d)(ii) of the Consumer Protection Act, 1986.
10) OP-1 had to provide, on receiving consideration, housing service to the complainant, as promised in the said agreement and so, OP-1 appears deficient.
So, the OP-1 suffers from deficiency in service as defined in Section 2(1) (g) read with Section 2(1) (o) of the Act.
11) OP-1 advertised and showed interest in selling flats; the complainant like other purchasers was allured and booked one flat and paid huge money. OP-1 thus grabbed and amassed huge capital collected from the aspirant purchasers but did nothing to honor their expectations.
This is a highly unfair trade as defined u/s 2(1) (r) adopted by the OP-1 thereby cheating and depriving many intending purchasers.
12) All such misdeeds affected the complainant in financial loss, loss of hope and expectations, complainant’s physical harassment and mental agony.
Therefore, the complainant deserves relief on the face of oppression of OP-1.
In such a situation, we have no way but, to pass
-
That the complaint be and the same is allowed exparte against OP-1 in terms of Section 13(2)(b)(ii) of the Consumer Protection Act, 1986 and dismissed on contest against OP-2 and OP-3 in terms of Section 13(2)(b((I) of the Act ;
That OP-1, Sk. Jilani is directed to refund Rs.61,0000/- with 9 percent interest effective from 07.03.2016 till actual payment, for financial loss and increase of flat value, Rs.20000/- as compensation u/s 14(1)(d) for physical harassment and mental agony and Rs.10000/- as litigation cost, to the complainant, within 30 days from the date of this order;
That OP-1 is further directed to pay Rs.50000/- u/s 14(1)(hb) for adopting unfair trade, 40 percent of which (Rs.20000/-) shall be paid to the complainant and the rest 60 percent (Rs.30000/-) shall be deposited with this forum.
That on failure of the OP-1, Sk. Jilani to comply with any of above orders, the complainant shall have liberty to put the orders into execution u/s 27 of the Act.
Let copies of the order be supplied to the parties when applied for.
