Order-12.

Date-28/11/2017.

SHRI RABIDEB MUKHOPADHYAY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

            On or about in the year 2015 your petitioner had after seeing various flats and apartments had decided to purchase flat which matched his specification. For the purchase of the said flat the complainant herein contacted the defendant No. 1 who claimed himself to be a promoter who had vast experience in the construction work.

            The defendant herein further claimed and informed the Complainant  that he had entered into one joint venture agreement with the defendant no. 2 and shall be constructing a multi storied building on the land owned by the defendant no. 2 at premises no. 10E Mahendra Roy lane, (Formerly 10 Mahendra Roy Lane).

            That believing such representation to be true that complainant herein on 16^th June, 2015 had entered into agreement for sale with the respondent herein for purchase of one flat measuring about 600 Square feet Super built up area (15 percent super built up) along with common facilities on the first floor of the newly constructed building at premises no. 19E, Mahendra Roy Lane (Formerly 10 Mahendra Roy Lane (hereinafter referred to as the said flat) for total consideration of Rs.12,00,000/- only. A copy of the Agreement for Sale and is annexed hereto marked with letter ‘A’.

            That the complainants herein fell for the representation made by the respondent and entered in to one agreement for purchase of flat on firsts floor for total consideration of Rs. 12,00,000/- wherein she paid rs.3,00,000/- by cheque no. 630958 on 19.06.2015, further an amount of Rs.3,00,000/- was paid vide cheque no. 630959 on 26.06.2015 and  an amount of Rs. 2,00,000/- was paid through cheques No.630960 on 22.09.2015 another amount of Rs.50,000/- was paid through Cheque No. 630962, an amount of Rs.30,000/- was further paidon 05.11.2015 vide cheque no. 630964. The  OP No. 1 till date has received an amount of Rs. 8,80,000/- in totality but still ha s failed and neglected to execute the deed of conveyance or to deliver the possession of the said flat on first floor, the complainant herein is always ready and willing to  pay the balance amount of Rs.3,20,000/-. Copy of the Bank statement showing payment details are annexed herewith marked with Letter ‘B ‘

            That quite considerable period of time has passed  but the OP No.1 has not taken any step to execute the deed of conveyance in favour of the complainant  herein neither he ha s delivered the possession of the first floor flat to the Complainant in fact he has given the complainant one flat on the ground floor as temporary accommodation but he continuously been is avoiding the  requests of the complainant and has failed to handover the possession and execute a deed of conveyance in fvaour of the complainant herein in  respect of the First floor  flat.

            That thereafter when the complainant refused to accept such illegal and unprofessional acts of the OP No. 1 he resorted to hooliganism and started creating nuisance in and around the place where the complainant is residing in fact he went on to threaten that the complainant would have to face dire consequences if she dared to visit police station or took any legal measures against the OP no.1.

            In spite of further request the respondent no. 1 refused and neglected to act in accordance with the terms of the con tact and has failed to handover the possession and / or  registration of said flat at First floor with an ill motive to appropriate the aforesaid sum of Rs.8,80,000/- only. That the aforesaid action, on the part of the respondents is an example of deficiency of service and unfair trade practices as given under consumer protection act.

            Under the aforesaid facts and circumstances, an appropriate order be passed directing the OP/Respondents to handover the possession of said flat on first floor and to execute t he deed of conveyance and register the same in favour of this  applicant forthwith.

            Due to such inaction on the part of the respondent no. 1, the applicant has suffered mental agony and  trauma which can be assessed in monetary terms which reasonably assessed for sum of Rs.3,00,000/- only. The Complainant is also entitled to receive a compensation of Rs.1,00,000/- for the gross deficiency in service and as well as for unfair trade practice on the part of the OP and  Rs.50,000/- as litigation charge.

            The Complainant prayed before the Hon’ble Forum to direct the OP to handover the possession of said flat at first floor and to execute and register the sale deed in favour of the complainant forthwith, also claimed compensation for the losses suffered by the Complainant assessed at a sum of Rs.3, 00,000/-, Rs. 1, 00,000/- for gross deficiency of service as well as unfair trade practice and Rs.50, 000/- as litigation charges.

Written Version

            The OP-1 in his written version denied the complaint against him and as per his version,  it  is pertinent to mention that the price of the gr. Floor f lat is higher i.e. Rs.15,60,000/- than  the flat on the 1^st floor, the price of which is 12.00,000/-, about a month or so, after the possession of the Gr. Floor flat was handed over  to the Complainant by the OP-1 in compliance of the covenant No. 2 at page 3 of the agreement for sale executed between the Complainant and the OP-1. The Complainant approached the OP-1stating that she is opting to take the gr. Floor flat. (Possession of which was handed over to her) instead of the firsts floor flat which she opted previously. The OP-1 categorically told her that the gr. Floor flat is costlier than the 1^st floor flat and there is a difference of Rs.3, 60,000/- between the g r. floor and t he 1^st floor flat. The Complainant out of her own volition agreed to pay the higher price and take the gr. Floor flat instead of 1^st floor flat by executing a supplementary agreement to that effect with the Respondents in future. In her plaint,  she has stated and admitted that she had paid Rs.2,00,000/- by cheque  no. 630960 on 22..09.2015 and the agreement for sale at clause 2 in      page 3, it has been mentioned that the complainant will pay the rest amount of Rs.4,00,000/- at the time of  providing possession of the first floor flat  but paragraph 4 of the complaint the Complainant has stated that over and above Rs.8,00,000/-  (Rs.6,00,000/- + Rs.2,00,000/-) as per covenant of the agreement  for sale, she has also paid another amount of Rs.50,000/- by cheque No. 630962 and also an amount of Rs.30,000/- and also an amount of Rs.30,000/- was further paid by her on 5.11.2015 vide cheque No. 630964 in spite of not getting possession of the 1^st floor flat. In fact, the further payment of Rs.80,000/- over and above Rs.8,00,000/- was made by the Complainant because subsequently she changed her decision and verbally neglected with the OP-1 to take and reside in t he gr. Floor flat permanently  instead of 1^st floor flat and she was unwilling to part with the possession of the gr. Floor flat and shift  to the 1^st floor flat. The Complainant has suppressed all these facts and has attempted to misguide the Forum in order to avoid and deprive the Respondent No. 1 of the differential payment of Rs.15,60,000/- - R s/. 8, 80,000/- totaling to Rs.  6,80,000/- in respect of the gr. Floor flat the consideration price of which is rs.15,60,000/- i.e. Rs.3,60,000/- higher than Rs.12,00,000/- which  is the consideration amount of the 1^st floor flat. The Complainant also subsequently and behind t he back of the OP-1 and without obtaining permission from the Respondents applied to the CESC Ltd  for permanent  electric supply connection in respect of the said gr. Floor flat which is evident from the Electricity Bill annexed with the plaint / complaint as well as from  the photocopy of the letter dated 17.01.2017 addressed to the Complainant by the CESC Ltd (Photocopy enclosed and marked as Annexure Ä).

            That it is pertinent to mention that the Complainant Smt. JyotsnaPramanik has no cause of action at all as she was delivered temporary possession of the gr. floor flat as per the terms of the  agreement  dated 16^th June, 2015 after two months from the date of execution of the said agreement. At  that point of time she was categorically told by the OP 1 that the said gr. floor flat is measuring about 520 Sq. ft. and the price of the said flat is Rs.3,000/- per sq. ft. which comes to Rs.15,60,000/- (Rupees three lakh sixty thousand only) more  than the agreed price of the fist floor flat of  Rs.12,00,000/- (Rupees twelve lakhs only).

            That thereafter when the OP-1 told the Complainant that on completion of the 1^st floor flat (which is at present under  construction) she will have to vacate the gr. floor flat and shift to the 1^st floor flat, t he Complainant Smt. JyotsnaPramanik refused and said she intends to take the gr. floor flat by paying the differential price of Rs.3,60,000/- and that is why she has paid Rs.8,80,000/- to the OP-1, i.e. Rs.80,000/- over and above the agreed amount R s.8,00,000/- as mentioned in paragraphs 1 and 2 at page …… of the said agreement wherein it was mentioned that up to t he date of providing  temporary accommodation in the gr.  floor the Complainant will pay Rs.6,00,000/- + Rs.2,00,000/- i.e. Rs. 8,00,000/- and the  res t Rs.4,00,000/- is payable at the time of providing possession on  the 1^st floor.

            That in view of the statements made in the above paragraphs, it  is very much clear that the act and attitude of the complainant Smt. JyotsnaPramanik of applying for an Electric Supply meter ( the bill of which nowhere reveals that it is for a temporary supply) and by paying an amount of Rs.80,000/- in contravention of paragraphs 1 and 2 at page …… of the Agreement dated 16.6.2015 such acts on the part of the Complainant at tracts the principles of Estoppels which states ‘’ A bar to a party from ascertaining a legal aim or defence that is contrary or inconsistence with his or her prior action of conduct. (Section 115 of the Evidence Act, 1892)

            In the instant case the following acts of the Complainant attracts the doctrine of Estoppel as per Section 115 of the Indian Evidence Act 1892.

i)That the complainant after taking possession of the gr. floor flat did never express her willingness to vacate the Gr. floor flat and shift to the first floor flat.

ii)That the Complainantwithout the knowledge and consent of the Ops applied for a permanent Electric Supply Meter in respect of the said gr. floor flat which is clear from Annexure A and the copy of the CESC Ltd. MA Bill annexed unmarked with the original plaint.

iii)That before filing her complaint in the consumer redressal forum she did not serve any legal notice to the OPs nor did she make any written correspondence with the OP-`1 claiming the possession of the 1^st floor flat, rather she was reluctant to vacate the gr. floor flat and shift to the 1^st floor flat as a result of which and as a consequence of her conduct the OP 1 was compelled to allot the 1^st floor flat in favour of Smt. Sima Das, OP / Respondent No. 2 as she is the owner of the said premises no. 10E Mahendra Roy Lane, Kolkata – 700 046 under ‘ Owner’s allocation’’.

Thus from the above, the complainant has committed Estoppel by conduct and/ or Estoppel in pais which states ‘’ If a man either by words or by conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have obtained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from this conduct’. Union of India VsK.P.Mondal, AIR 1958 Cal 415).

That the complainant has come before this Learned Forum with unclean hands and with a mala-fide intention to deprive t he OP-1 and to avoid payment of the differential of consideration money to the tune of Rs. 6,80,000/- (Rupees six lakh eightythousand) only in respect of the gr. floor flat, the price of which being Rs.15,60,000/- (Rupees fifteen lakh sixty thousand) only is higher than the agreed price of Rs. 12,00,000/- (Rupees Twelve lakh only) which she was asked to pay after adjustingthe payment of Rs.8,80,000/- (Rupees eight lakh eighty thousand only) when she opted to take the gr. floor flat instead of the 1^st floor flat. Now she is applying pressure tactics and plying a dirty game which has resulted in this suit.

The statements made in the foregoing paragraphs are in reply in seriatim made by the Complainant which are denied and disputed by the OP. Paragraphs 6 & 7 of the complaint are not at all true and the said allegations are denied and disputed save and except those which are matters of record only. As per the statement made in paragraph 8 of the complaint it is stated that due to her action of conduct stated in the foregoing paragraph No. 13 here, the complainant is stopped by law for claiming the said relief.

That in respect of the compensation of Rs.3,00,000/- and Rs.1,00,000/- claimed by the Complainant in paragraph above ( Nos. 02 ) it is stated that the Complainant has not suffered any mental agony and trauma as falsely alleged and claimed by her, nor there is any gross deficiency of service and unfair trade practice on the part of the OP 1 and as the complainant has filed this case by suppressing the facts and as a conspiracy against the OP-1, the complainant is also not entitled to gate Rs.50,000/- as litigation charges.

That in reply to paragraph (no. 03) above,it is stated that the complainant has no cause of action at all as falsely alleged and statements made in above paragraph are matters for record only.

That in reply to the statements made in paragraphs above, it is not a fact that unless the orders as prayed for by the complainant is allowed, the complainant will suffer irreparable loss and injury as the said complainant has already been handed over a much spacious and more costly flat in the gr. floor of the said premises which the complainant is occupying and wherefrom she refused to shift and continued to enjoy the possession at her own behest and volition.

In the above circumstances the OP 1 prayed before this Forum to pass order graciously directing the Complainant a) to pay the differential amount of Rs.6,80,000/- inrespect of already occupied gr. floor flat, b)to dismiss the case in limine for false complaints againstthe Respondents, c) to allowthe cost of proceeding in favour of OP-1d and) any further order / orders, direction / directions deem fit.

Points for Discussion.

      1)   Whether the complainant is a consumer under OP-1;

      2)   Whether the OP-1 is deficient of promised service; and

      3)   Whether the complainant deserves relief.

DECISION WITH REASONS

We have perused the documents filed by the complainant like Evidence, Xerox copy of Sale Agreement dated 16/6/2015, copy of Bank statement, copy of electricity bill of CESC Ltd, BNA and Written Statement under Affidavit, BNA under Affidavit, copy of electricity bill, copy of electricity bill from CESC Ltd. A copy of a Judgement of Hon’ble Calcutta High Court dated 3 April, 1958, in Union Of India-Vs-K.P.Mandal has been filed by a party not marked but said judgement appears to have no ratio with the present dispute.

OP-2 did not take in the proceedings in spite of summons having been delivered to her.

            From WV para-8, it appears that the complainant approached OP-1 to prefer the Ground Floor instead of the First Floor but there is no evidence or documentary filed by OP-1 to substantiate such claim.

            As per Clause 2, page 3 of the Sale Agreement, the complainant was promised to be given temporary possession (till completion of the First Floor) in the Ground Floor on payment of agreed amount of Rs 200000/- out of the consideration amount for the First Floor. No documentary evidence has been filed by OP-1 to substantiate his reported communication to the complainant that he had categorically told the complainant that cost of Ground Floor flat is higher than First Floor Flat by Rs 360000/- which the complainant allegedly agreed to pay on her own volition.

            So, complainant’s further option, as alleged, for purchasing the Ground Floor flat, which is not coded in the Sale Agreement dated 16/6/2015, does not hold good.

            As stated at the end of WV para-8 and at WV paragraphs-9 and 12, inter alia, connection of electricity at the Ground Floor of the premises was made by the CESC Ltd. in the name of the Complainant without the permission of OP-1. In this connection, it is to be taken into consideration that whether the complainant took permission from OP-1 is a separate matter but the fact remains that temporary possession of Ground Floor was given to the complainant by OP-1 as per provision (Clause 2, page 3) of the Sale Agreement. So, it was the duty of OP-1 to arrange electricity in such temporary accommodation. It is unlikely that a resident of an accommodation will pass days and lead life without electricity, that too for an uncertain period till taking over possession of the First Floor. So, the situation compelled her to have the connection of electricity, an essential service, effected by the CESC Ltd. itself, and so, under legal procedures.

            The Principle of Estoppels, as advocated by OP-1 at para-13 does not apply here for obvious reasons. Moreover, the complainant intends to take possession of First Floor flat as per the Sale Agreement and not the Ground Floor flat.

            The OP-1 stated at WV para-11 that the complainant refused to shift to First Floor and intends to take possession of the Ground Floor on payment of her due amount. But OP-1 could not file any document regarding such alleged refusal of the complainant. Moreover, OP-1 failed to file any possession letter issued and handed over to the complainant asking her to take possession of the First Floor flat. Rather, the complainant claims in the complaint to take possession of the First Floor flat and registration as per Sale Agreement on payment of the balance amount of Rs 3, 20,000/-.as affirmed at complaint para-4.

            OP-1’s view expressed at WV para-14 that the complainant came to the Forum with unclean hands and malafide intention to deprive OP-1of the differential amount of Rs 680000/- All such views of OP-1 are bereft of reasoning and logic. Where the complainant does not claim in the complaint to take possession of Ground Floor flat and intends to take possession of First Floor flat, such views of OP-1 have no base.

As per endorsements made by the OP-1 in the Sale Agreement as well as from Bank Statements, it appears that the complainant has so far paid to the OP-1 Rs 8,80,000/- and she will have to pay the remaining consideration of Rs 3,20,000/- on the date of registration of the First Floor flat. So, the complainant is a consumer under the OP-1.

Mere excess payment of Rs 80,000/- as per terms of the Sale Agreement does not substantiate that the complainant wanted to purchase the Ground Floor flat. Had it been so, that too would be beyond the Sale Agreement

The OP-1 seems to have trapped himself by allotting the First Floor flat to OP-2, as admitted by OP-1 at WV para-13(iii) of WV. The said flat on the First Floor was promised by OP-1 in the Sale Agreement dated 16/6/2015 to the complainant. The Agreement was not cancelled. No supplementary Agreement was made for such arrangement by the OP-1. Therefore, OP-1 clearly fell short of the promises by not giving possession of First Floor flat to the complainant so far and so, is clearly deficient by keeping the complainant waiting in agony and harassed. Therefore, the complainant deserves relief.

             From presentation of OP-1 during argument and whispering, it seemed to us that a big pie of the dispute relates to oral, verbal and unwritten arrangements suiting the requirements of the parties. When it failed, OP-1 imposed aspersion on the complainant as suppression of fact, unclean hands etc. We have no other alternative but to focus and analyze documented submissions.

OP-2, who did not take part in the proceedings, cannot shake off her responsibility. She was a party/First Party to the Sale Agreement dated 16/6/2015 in which First Floor flat was designed to be handed over to the complainant. So, her possession of the said First Floor flat was not in conformity with law.

             In the light of above discussion, we are constrained to pass

ORDER

            That the complaint be and the same is allowed on contest against OP-1 and exparte against OP-2;

        That the OP-1 is directed to hand over possession of the 600 Sq. Ft. First Floor flat at the premises at 10E, Mahendra Roy Lane, Kolkata-700046 to the complainant and to execute and register the Deed of Conveyance within 30 days from the date of this order on receiving the balance consideration of Rs 3,20,000/- from the complainant;

        That the OP-2 is also directed to extend full co-operation to OP-1 and the complainant in the matter of possession and registration of the First Floor flat in favour of the complainant;

        That the OP-1 is further directed to pay to the complainantRs 20,000/- as compensation for harassment and agony and Rs 10,000/- as litigation cost,within 30 days from the date of this order;

        That on failure of OP-1 and OP-2 to comply with the above respective orders, the complainant shall have the liberty to put the orders into execution as per provision of the C. P. Act, 1986 as amended so far.

        Let parties be handed over copies of the judgement when applied for.