F I N A L O R D E R / J U D G E M E N T
Delivered by: -
Shri Debasish Bondhyapadhyay, President.
Brief fact of this case: - This consumer complaint under section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs named above alleging deficiency in service and unfair trade practice on the part of the OPs.
Complainant stated that OP No. 1 is the land owner in respect of the property measuring more or less about 02 Cottah 08 Chittak which is comprised within Bally Municipality, Premises No. 23/C, Daspara Road, P.S. Liluah, Dist. Howrah and OP Nos. 3 & 4 are the lawful attorney and developer of OP No. 1. In order to materialize the development project OP No. 1 executed a General Power of Attorney on 20/05/2013 in favour of OP Nos. 3 & 4 and OP No. 1 also entered into a Development Agreement on that day i.e. on 20/05/2013 with OP No. 2 and by dint of said Power of Attorney OP No. 1 have also entrusted some power to OP Nos. 3 & 4, such as, to look after, control, manage, supervise, develop the property as well as to enter into agreements for sale for newly constructed building and/or flat with the intending purchasers and also to receive the entire consideration money from the intending purchasers.
Complainant further stated that complainant was in search of a flat and upon getting information that OP No. 1 has entered into a Development Agreement with OP No. 2 in order to raise a multi-storied building complainant approached and intends to purchase a flat and after accepting the proposal of complainant OP Nos. 3 & 4 entered into an Agreement for Sale with the complainant measuring about 500 Sq.ft. at the rate of Rs.1,700/- per Sq.ft. at the 3rd floor and accordingly complainant on 21/07/2014 paid Rs.9,000/- by cash and paid Rs.3,50,000/- by cheque being Nos. 000021 & 866844 of Bank of India and SBI respectively to the OP Nos. 2 to 4. Thereafter, complainant on trust and good faith also paid a sum of Rs.25,000/- only by cash on 11/09/2014 to OP No. 2 and after acknowledging the same OP Nos. 3 & 4 duly issued a receipt in favour of the complainant. Complainant also stated that on demand of OP Nos. 2 to 4 complainant further paid a sum of Rs.25,000/- by cash on 25/09/2014 to OP No. 2 against which a receipt was issued in favour of the complainant and on 01/11/2014 complainant further paid a sum of Rs.1,40,000/- by cash to the OP No. 2 against which a receipt was also issued in favour of the complainant and accordingly, complainant with a dream of having a ownership flat at 3rd floor within a very short period paid a total amount of Rs.5,49,000/- only out of total consideration amount of Rs.8,50,000/- only.
Complainant also stated that as per said Agreement for Sale dated 21/07/2014 Ops were bound to hand over the said flat within 21/01/2015 and after expiry of the time period complainants contacted with OP Nos. 2 to 4 and requested them to handover the said flat as well as to make registration of the Sale Deed and upon hearing OP Nos. 2 to 4 infomed the complainant to wait for a few months because of a dispute which has been croped up in between the land owner and the developer.
That after arranging the balance consideration amount complainant requested the OP Nos. 2 to 4 to handoverthe flat in question and also to make registration of Sale Deed in favour of the complainant but the Ops did not pay any heed rather in a dilly dally manner avoided to make registration of Sale Deed. Complainant on several times personally met with the Ops and requested them to handover the flat in question but they did not entertain the request of complainant, as a result of which complainant is suffering from mental pain and agony.
Under such circumstances and finding no other alternative way complainant filed this case before this Commission (formerly Forum) praying for directions upon the OPs to handover the flat in question in favour of the complainant by executing and registration of Sale Deed upon receiving the balance consideration amount of Rs.3,01,000/- and complainant also prayed for direction upon the Ops to pay to the complainant a sum of Rs.3,00,000/- only as compensation and a sum of Rs.25,000/- only as cost of legal proceedings of the present case.
Defense Case: - OP No. 1 in spite of receiving notice did not appear in the instant case and OP Nos. 2 to 4 have contested the case by filing W/V denying each and every material allegations made by the complainant and contented inter alia that: -
The instant application as framed by the complainant is not maintainable either in law or in facts and the instant case is barred by limitation and also the contents of the complaint is wholly harassing, speculative and barred by principle of estoppels, as such, complaint of complainant is liable to be dismissed with exemplary cost.
It is stated by OP Nos. 2 to 4 that complainant had approached before OP No. 2 for purchasing one flat measuring about more or less 500 Sq.ft. including super build up area at a consideration price of Rs.8,50,000/- and accordingly a Notarized Agreement for Sale was executed on 21/07/2014 and complainant paid Rs.3,59,000/- as advance/earnest money to the OP No. 2 in respect of the flat in question and remaining balance consideration money i.e. Rs.4,91,000/- shall be payable by the complainant within 6(six) months from the date of execution of the said Agreement for Sale. Thereafter, complainant whimsically asked the OP Nos. 2 & 3 for making several additional constructional works in the flat in question, such as Collapsible Gate, Sliding with Box Grill (square bar window), Box Dhalai (balcony and window), kitchen modification etc. and the said extra work were not included in the said Agreement for Sale. OP Nos. 2 to 4 also stated that it was also agreed by the complainant that the registration of flat in question will only be executed within 6(six) months from the date of execution of the Agreement for Sale dated 21/07/2014 subject to payment of entire balance consideration money of Rs.4,91,000/- and Rs.1,50,000/- as cost for extra work. Thus, total amount due is Rs.6,41,000/- which the complainant has failed to pay to the OP Nos. 2 to 4 within one year and the flat in question was in complete condition by the end of 2014 including said extra work. Thereafter, complainant were asked by the Ops to pay the balance consideration money and cost of extra work in respect of the flat in question to execute and register the Deed of Conveyance before the Dist. Sub-Registrar Office, Howrah but complainant had prayed time for arrangement of money for making payment of balance consideration money as well as payment of Stamp Duty and Registration Fees.
That after, it is also stated by OP Nos. 2 to 4 that Ops asked the complainant over telephone without numbers for payment of balance consideration money but complainant was unable to pay the same to the Ops within stipulated time i.e. within 6(six) months from the date of execution of the said Agreement for Sale. Thereafter, complainant never sent any intimation letter to the Ops regarding his readiness/willingness to register the flat in question rather he kept silent and thus, the said Agreement for Sale leads to cancellation by default. OP Nos. 2 to 4 also asked the complainant to take back the advance/consideration money in respect of the flat in question with a deduction of 10% from the said consideration money.
It is also stated by the OP Nos. 2 to 4 that complainant intentionally did not pay the consideration money till date to the Ops and instead of payment of balance consideration money in respect of the flat in question to the Ops, complainant filed the instant complaint case to cheat and deprive the developer’s rightful legitimate monetary claim i.e. balance consideration amount.
Under such false, frivolous, whimsical and unfounded grounds the OP Nos. 2 to 4 prayed before this Commission for dismissal of the instant case with heavy cost.
Issues / Points for Consideration
On the basis of the pleadings of the parties, this District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -
- Whether the complainant is the consumer to the Ops or not?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any unfair trade practice on the part of the Ops or there is any deficiency in service on the part of the Ops.
- Is the complainant entitled to get relief/reliefs as prayed for?
Evidence on record
Complainant filed an affidavit wherein complainant stated that the petition of complaint of complainant may be treated as evidence, complainant filed questionnaire against the evidence of Ops, filed reply against the questionnaire of Ops and finally complainant filed BNA in support of his case.
Whereas Ops in support of their case filed W/V after receiving notice, filed questionnaire against the evidence of complainant, filed evidence supported by affidavit, filed reply against the questionnaire of complainant and finally filed BNA.
DECISION WITH REASON
On close scrutiny of the materials on record, it reveals that the complainant is the consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OP.
Complainant appears to be the resident of Howrah whereas Ops are also having their residences/office place in the district of Howrah and Kolkata. Considering the nature of the case and prayers of the complainant it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.
In support of his case complainant filed Examination-in-Chief supported by affidavit and complainant filed questionnaire against the evidence of Ops, filed reply against the questionnaire of Ops and finally complainant filed BNA in support of his case.
Whereas Ops also in support of their case W/V after receiving notice, filed questionnaire against the evidence of complainant, filed evidence supported by affidavit, filed reply against the questionnaire of complainant and finally filed BNA.
On close examination of the evidence on record and after going through the pleadings of the parties it is revealed that the complainant has filed this case within 2(two) years and the cause of action of this case has been continued. In this case the Ops in their written version have adopted the plea that this case is barred by limitation. But fact remains that evidence on record and pleadings of the parties are clearly reflecting that the complainant has filed this case within time and as per Section 24A of the Consumer Protection Act, 1986 this case is not barred by limitation.
The cumulative consideration of the above noted discussion goes to show that the case filed by the complainant is maintainable, this District Commission has territorial and pecuniary jurisdiction, this case is not barred by limitation, there is cause of action for filing this case by the complainant against the Ops and the complainant is a consumer in the eye of law. Thus, the point of consideration Nos. 1 & 2 are decided in favour of the complainant side.
On the background of the above noted position, this District Commission finds that the point of consideration No. 3 has been framed on the point as to whether there is any unfair trade practice and deficiency of service on the part of the Ops or not? The point of consideration No. 4 is related with the question whether the complainant is entitled to get relief which he has prayed in this case or not? For the interest of arriving at decision in respect of the above noted 2(two) points of consideration this District Commission after going through the evidence on record, interrogatories filed by the parties and reply submitted by the parties against the interrogatories finds that one Agreement for Sale has been executed in between complainant and Ops and the complainant has paid a consideration money of Rs.5,49,000/- out of total value of the suit flat of Rs.8,50,000/-. It is also admitted fact that the Ops also have issued money receipt in respect of the payment of consideration money of Rs.5,49,000/- by the complainant.
There is no controversy over the issue that the balance consideration money which required to be paid by the complainant to the Ops is Rs.3,01,000/-. There is no controversy over the issue that the OP Nos. 2 to 4 have not yet delivered possession of the suit property to the complainant and the Ops also have not executed and registered any Sale Deed in favour of the complainant.
On the background of admitted facts and circumstances, this District Commission finds that the parties are differing on the point that the complainant has adopted the plea that he is ready and willing to execute and registered the Sale Deed by paying the balance consideration amount of Rs.3,01,000/-, but on the other hand, the Ops are claiming that the complainant has not yet paid Rs.4,91,000/- and for which they have not yet executed and registered the Sale Deed. It is also alleged that OP Nos. 2 & 3 also have made additional construction work in the flat of complainant and said cost has also not been paid by the complainant. In order to detect this matter neither the complainant nor the Ops has prayed before this District Commission for appointment of Commissioner to conduct inspection of the suit flat. In the absence of such cogent and impartial evidence it is not possible for this District Commission to detect as to whether the OP Nos. 2 to 4 conducted extra construction work over the suit flat or not. But fact remains that OP Nos. 2 to 4 have not yet delivered possession of the suit property to the complainant and also have not executed and registered Deed of Conveyance. Now the question is what is the consequence for non-execution and non-registration of the suit property. In this regard, this District Commission after most respectful reading of the judgment of Hon’ble Apex Court which is reported in AIR2022 Supreme Court Page 1824 finds that failure to deliver possession of the apartment within stipulated time is undoubtedly unfair trade practice and deficiency of service and in that event the OP is duty bound to refund the advance money which has been paid by the complainant to the OP along with interest @ 9% per annum. Similar view has been taken by the Hon’ble Apex Court in the case of “Gaziabad Development Authority Vs R. B Sharma” which is reported in 2004(3)CPR Page 92. Thus, it is crystal clear that OP Nos. 2 to 4 are duty bound to deliver possession of suit flat and to execute and register the suit property.
The cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of points of consideration No. 3 & 4 and this 2(two) points of consideration are also decided in favour of the complainant side.
In the result, it is accordingly,
O R D E R E D
That this Complaint Case No. CC/233/2016 be and the same is allowed on contest but in part against the Ops.
It is held that the complainant is entitled to get a degree directing the Ops to handover the suit flat in favour of the complainant by executing registering Sale Deed upon receiving balance consideration amount of Rs.3,01,000/- within 45(forty five) days from the date of delivery of this judgment otherwise the Ops shall refund the advance amount of Rs.5,49,000/- along with interest @ 9% from the date of filing of this case.
Ops are directed to comply the above noted directions positively within 45(forty five) days from the date of this judgment failing which complainant is given liberty to execute this award as per law.
In the event of non-compliance and failure of carrying out the above noted directions the Ops shall pay Rs.10,000/- in the Consumer Legal Aid Account of D.C.D.R.C., Howrah which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/Ld. Advocates/Agents on record by hand under proper acknowledgement/send by ordinary post for information and necessary action.
The final order will be available in the following website Dictated & Corrected by me
(Shri Debasish Kr. Bandyopadhyay)
President, DCDRC, Howrah
