The brief facts of the complaint petition is that the complainants with the intention to purchase a flat situated in the first floor of the property over dag no.708 & 709, J.L. No.86, Mouza- Barijhati, P.S.- Chanditala., Dist.- Hooghly, have under gone an unregistered agreement with the OP on 31.3.2009 for a total consideration money of Rs.4,62,000/- out of which OP received Rs.255000/- till 23.11.2010 as part payment. It was agreed between the complainants and the OP would execute a sale deed in favour of the complainants within two years from the date of execution of said agreement. The period of the said agreement would cover on 31st March, 2011 but till now OP has not completed the water line and also the drain from which the water will pass. The Complainants are ready to pay the balance amount of Rs.186,000/- as per commitment for 630sqft @ Rs.700/- sq ft out of Rs.441,000/-. The complainants sent advocate letter dated 10.3.2011 through regd. post with A/D from Begumpore Post Office requesting to complete the balance construction i.e. water line and also the drain way line and register the sale deed by taking balance consideration within 5 days from receiving the advocate letter. But the OP took no measure for execution of the sale deed. On 20.2.2013 the complainants requested the OP to complete the remaining work and register the sale deed in their favour after taking balance consideration money but of no result. The OP with his associates looted the valuable electronic articles which previously kept in schedule property and put lock and key. That after taking various steps and request this complainant got no result and due to such deficiency of service of the OP the complainants suffered irreparable loss and injuries and the complainants lost the earnest money of Rs.255,000/- also suffered from mental pain and agony. By filing the instant complaint before this Forum prayed for a direction upon the OP to pay compensation of Rs.255,000/- for earnest money of Rs.255,000/- and Rs.200,000/- for loss of goodwill of their reputation and for sustaining mental agony and pain to these complainants .
The sole OP appeared and filed written version denying the allegations as leveled against her and averred that she has agreed with the complainants to sell out the schedule property and to execute the sale deed in favour of the complainants within 2 years from the date of execution of the said agreement and that the period of the said agreement had covered by 31st March,2011 but it is false that the OP has not completed the water line , the drain way or line from which the drain edged water would pass or that the complainant is ready to pay the balance amount of Rs.186,000/- as per the further commitment of the OP for 630 sq ft. @ Rs.700/- per sq ft. out of Rs.441,000/-. The OP is the absolute owner in respect of plot No.708 and 709 of Mouza Barijhati, J.L. No.86, P.S.- Chanditala, Dist.- Hooghly and while she was in absolute possession of the said property has planned to raise multistoried building thereon and thereafter started raising construction thereon after taking sanction from the concerned gram panchayet and while the construction going on the complainants approached to the OP for purchasing a big room, Hall Ghar measuring an area 660 sq ft super built area for the purpose of using the same as Godown for keeping their articles of their business. The OP being Kidney patient for the urgent need of money for her treatment agreed to sell their required Hall Ghar in the second of the said building at a consideration of Rs.462,000/- @ Rs.700/- per sq ft in a low value than that of prevailing rate of the market. The agreement in between the parties took place on 31.03.2009 taking an advance of Rs.100,000/- and in the said agreement it is specifically stated that the complainants are under liability to pay the rest consideration value of Rs.362,000/- within 2 years from the date of agreement and if the complainants failed to pay the balance consideration money within 2 years and unable to execute and register sale deed in their favour then in that case an amount of Rs.100,000/- would be forfeited. The complainants in spite of regular demand made by the OP has failed and neglected to pay the consideration value within the stipulated period except paying a sum of Rs.150,000/- and as a result the said agreement has got no force at all. Apart from that the complainants filed a theft case before the Chanditala P.S. accusing the OP and another M.P. case before the SDEM, u/s-144(2) Cr.P.C. and a M.P. case before the SDEM, Barrackpore to avoid further payment. According to convenience the OP has installed water line and also made proper drainage system for the inhabitants of the said building long prior to expiry of the date of said agreement and to show that the OP prayed to hold local inspection commission. So the OP is not deficient in providing service to the complainants.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
The sole OP filed evidence on affidavit which is nothing but replica of his written version.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainants Indranil Roy & Hiralal Roy ‘Consumers’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainants?
4. Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainants Indranil Roy & Hiralal Roy are ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainant are “Consumers” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. The complainants paid advance money to the OP with the intention to purchase a Hall Ghar and the OP received the same is admitted in her written version, so these complainants being intending purchasers of the Hall Ghar owned by the OP are entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainants prayed for a direction upon OP to return back earnest money amounting to Rs.255, 000/- and also prayed Rs.255,000/-as compensation, Rs.200,000/- for loss of Goodwill of their reputation and for sustaining mental agony and pain from the OP ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The case of the complainant is that the complainants with the intention to purchase a flat situated in the first floor of the property over dag no.708 & 709, J.L. No.86, Mouza- Barijhati, P.S.- Chanditala., Dist.- Hooghly, have under gone an unregistered agreement with the OP on 31.3.2009 for a total consideration money of Rs.4,62,000/- out of which OP received Rs.255,000/- till 23.11.2010 as part payment. It was agreed between the complainants and the OP would execute a sale deed in favour of the complainants within two years from the date of execution of said agreement. The period of the said agreement would cover on 31st March, 2011 but till now OP has not completed the water line and also the drain from which the water will pass. The Complainants are ready to pay the balance amount of Rs.186,000/- as per commitment for 630 sq ft @ Rs.700/- sq ft out of Rs.441,000/-. The complainants sent advocate letter dated 10.3.2011 through registered post with A/D from Begumpore Post Office requesting to complete the construction i.e. water line and also the drain way line and register the sale deed by taking balance consideration within 5 days from receiving the advocate letter. But the OP took no measure for execution of the sale deed. On 20.2.2013 the complainants requested the OP to complete the remaining work and register the sale deed in their favour after taking balance consideration money but of no result. Getting no alternative they filed the instant complaint before this Forum praying for a direction upon the OP to pay Rs.255,000/- for earnest money, Rs.255,000/- as compensation and Rs.200,000/- for loss of goodwill of their reputation and for sustaining mental agony and pain.
The sole OP denied the allegations as leveled against her and averred that she was agreed with the complainants to sell out the schedule property and to execute the sale deed in favour of the complainants within 2 years from the date of execution of the said agreement and that the period of the said agreement had covered by 31st March,2011 but it is false that the OP has not completed the water line, the drain way or line from which the drainage water would pass or that the complainant is ready to pay the balance amount of Rs.186,000/- as per the further commitment of the OP for 630 sq ft. @ Rs.700/- per sq ft. out of Rs.441,000/-. The OP is the absolute owner in respect of plot No.708 and 709 of Mouza Barijhati, J.L. No.86, P.S.- Chanditala, Dist.- Hooghly and while she was in absolute possession of the said property has planned to raise multistoried building thereon and thereafter started raising construction thereon after taking sanction from the concerned gram panchayet and while the construction going on, the complainants approached to the OP for purchasing a big room, Hall Ghar measuring an area 660 sq ft super built area for the purpose of using the same as Godown for keeping their articles of their business. The OP being Kidney patient for the urgent need of money for her treatment agreed to sell their required Hall Ghar in the second floor of the said building at a consideration of Rs.462,000/- @ Rs.700/- per sq ft in a low value than that of prevailing rate of the market. The agreement in between the parties took place on 31.03.2009 taking an advance of Rs.100,000/- and in the said agreement it is specifically stated that the complainants are under liability to pay the rest consideration value of Rs.362,000/- within 2 years from the date of agreement and if the complainants failed to pay the balance consideration money within 2 years and unable to execute and register sale deed in their favour then in that case an amount of Rs.100,000/- would be forfeited. The complainants in spite of regular demand made by the OP have failed and neglected to pay the consideration value within the stipulated period except paying a sum of Rs.150,000/- and as a result the said agreement has got no force at all.
After perusing the documents it appears that the complainants deposited a sum of Rs. 2,50, 000/- to this OP but no receipt filed in that regard and the OP in her written version as well as written argument admitted that the complainants deposited a sum of Rs.150,000/- to the OP. The Xerox paper of the agreement reflects that the complainants paid a sum of Rs.5000/- on 20.8.2009, Rs.45000/- on 21.10.2009, Rs.50,000/- on 24.01.2010 and Rs.50000/- on 27.7.2010 through cheque and a sum of Rs.100,000/- as earnest money during the period of agreement. So a sum of Rs.250,000/- has already paid by the complainants to the OP. The back side of stamp paper of the original agreement speaks that the complaint paid Rs.45000/- to Amiya Kr. Ghosh on 4.11.2009, Rs.50000/- was paid on 17.1.2010 to Shyama Pada Ghosh, Rs.50000/- was paid to Shyama Pada Ghosh on 27.7.2010, Rs.5000/- was paid to Shyama Pada Ghosh on 23.11.2010 and a cheque of Rs. 5000 /- was paid to A.K. Ghosh. But the dates and quantum of payments are different. As it is not denied on behalf of the Op regarding such payment so the payment of Rs.250000/- in total is to be taken into consideration. The agreement of sale clearly stated that agreement in between the Vendor and the Vendee took place to sale/ purchase of a hall measuring 660 sq ft in the 1st floor of the building owned and constructed by the OP for a consideration money of Rs.462,000/- @ Rs.700/- per sq ft. Out of which the complainant paid only Rs.250,000/- to the OP and failed to pay the remaining amount within the time in accordance with the agreement. They have taken the plea that the drainage work was yet to be completed so the OP was not in a position to execute and register the property in question. The inspection commissioner was appointed to make local inspection. Who on her turn filed inspection report which is taken into consideration while passing final order. During the local inspection the commissioner could not enter into the hall ghar as the complainants failed to show the hall ghar by opening the lock despite they are fully aware regarding the commission work. So the actual picture of the hall ghar remains veiled. The agreement for sale clearly depicts that the property is a hall ghar measuring 600 sq ft (more or less) including super built area it is 660 sq ft. Nowhere in the agreement it is stated that it is a flat measuring 630 sq ft. The complainant assailed that the OP failed to execute the sale deed and registration the same as she did not complete the drainage and water supply within the time as stated in the agreement. But from the argument it is clear that the complainants are in the possession of the said hall ghar for a long period and they are avoiding to execute the sale deed and get registered the same by paying the outstanding amount.
The complainants failed to prove that they were bonafide enough to get registered the impugned hall ghar from this OP after paying remaining amount. So we may safely conclude that the complainants paid a sum of Rs.2,50,000/- in total to the OP and as such they are entitled to get back the advance money alongwith interest.
Going by the foregoing discussion hence it is ordered that the complainants failed to prove the deficiency of service of the OP for delivery of the hall ghar by adducing cogent document/evidence but the complainants are entitled to get back the advance money alongwith interest thereon. However considering the facts and circumstances there is no order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants failed to prove the deficiency of service of the OP in respect of delivery of hall ghar through execution & registration but the opposite party is under liability to return back the advance money paid to the complainants alongwith interest so the complainants are not entitled to get compensation as prayed for.
ORDER
Hence, ordered that the complaint case being No.131/2013 be and the same is allowed on contest against the opposite party with no order as to cost.
The Opposite Party is directed to return back the advance money amounting to Rs.2,50,000/-alongwith interest @ 8% p.a. since the date of last payment on 27.07.2010 till the payment within 45 days from the date of passing this order.
The complainants are also directed to vacate the impugned hall ghar and handover the keys to the OP within 30 days from this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
