DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

 

CASE NO:  CC – 76  of  2018

 

 

Smt. Mukta Dey(Bhadra),

W.O- Sri Arghya Pratim Bhadra,

D.O- Sri Manik Lal Dey,

Milan Sangha, Water Supply Road,

P.O. & P.S:- A.D. Nagar, 

District- West Tripura,

Pin- 799003. ….…..…......Complainant.

 

 

  -VERSUS-

 

 

Sri Abhijit Roy Choudhury,

S.O- Lt. Anil Kumar Roy Choudhury,

of Badurtalli Lane, Krishnanagar,

P.O. Agartala, P.S. West Agartala,

West Tripura.          .................Opposite Party.

 

 

 

__________PRESENT__________

 

 

 SHRI  R. PAL

PRESIDENT,

  DISTRICT CONSUMER 

 DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. DR B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

C o u n s e l

For the Complainant : Sri Debalaya Bhattacharya,

  Sri Rajib Choudhury,

  Smt. Tapasi Roy,

  Advocates.

        

For the Opposite Party : Sri  Subhajit Paul,

  Sri Subhasis De,

  Advocates.

 

 

HEARD ARGUMENT ON    : 31.08.2020.

 

 

JUDGMENT   DELIVERED   ON:  11.09.2020.

 

 

J U D G M E N T

 

The complainant Smt. Mukta Dey (Bhadra) set the law in motion by presenting the complaint petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service by the Opposite Party, Abhijit Roy Choudhury, who is the builder cum constructor.

The complainant's case in brief is that the Opposite Party(in short O.P.) herein is the owner and possessor of the land measuring 0.1094 Acres Bastu(Nal) land under District- West Tripura, Sub-Division and Sub-Registry Office- Sadar, P.S. West Agartala, Tehashil-Agartala, West Mouja-Agartala Sheet No-7, AMC Ward No-21, bearing Holding No- 284/1881, House No- 218573, and also he is dealing with business of promoting and real estate etc. by constructing flat as per Municipal Plan and he has submitted a plan before the AMC authority and the AMC authority sanctioned said submitted plan of O.P. herein vide no- HC/4838/16/AMC/1182-96 dated 28.01.2016. After showing the said plan to the complainant, the O.P. stated that he will start to construct multistoried building(G+4) with basement type consisting of 12 nos. of flats of different measurements and also optimal provision for car parking and two wheeler. The O.P. intended to sell the said flat under construction, car parking spaces. Petitioner and her mother jointly interested and desired to purchase the flat with parking place. Accordingly they entered into a notarial agreement with the O.P. for sell of the fFat no- C2 on the 1st floor (northwest corner) in which super buildup area with modification 850 sq. ft. @ Rs.3,500/- only per sq. ft of super buildup area along with one small car parking and two wheeler parking place on the basement which is amounting to Rs.2,25,000/- only i.e., total value of Rs.32,00,000/- only as per sale agreement dated 05.05.2017 executed by both parties. Thereafter petitioner and her mother paid Rs.1,10,000/- only as earnest money out of total value of 32 Lac. There was a condition in the agreement that if the purchaser fails to pay any installment in time, then he/ she/they will be bound to pay @ 10% P.A. interest on the said amount to the developer and simultaneously if developer fails to complete the construction in time as agreed the developer will be liable to pay interest @10% P.A. on the total amount received as consideration for sell of the flat concerned. Thereafter the complainant and her mother was informed by the AMC for the aforesaid approved plan which was shown by the O.P. at the time of agreement is not proper and not in existence in the good office of the AMC as such the authority of AMC informed the complainant that the AMC imposed fine upon the O.P. and another plan was approved about the construction work but till the filing of the complaint after several requests of the petitioner, the O.P. did not show the new plan which is approved by the AMC for the said plot.

  That, after starting the construction work by the O.P., petitioner and her mother found that the construction work is not satisfactory and it was not done as per guideline of the construction and O.P is not following the terms and conditions written in the sale agreement dated 05.05.2017 regarding construction of the flat. 

  It is also averred in the petition that the petitioner and her mother made payment to the O.P. with regard to the aforesaid booked flat by cheques on different time. The payment details are as follows:-

 

1 Rs.10,000/- Cheque no. 207723 08/03/17    

2 Rs.1,00,000/- Cheque no. 207736 29/03/2017    

3 Rs.1,30,000/- Cheque no. 385182 05/05/17    

4 Rs.3,50,000/- Cheque no. 207737 08/06/17    

5 Rs.60,000/- Cheque no. 207747 19/01/2018  

 

That the petitioner and her mother totally paid Rs.6,50,000/-only to the O.P. out of total cost price of Rs.32 Lac. But the O.P. did not perform his duties and construction work as per guideline and sale agreement dated 05.05.2017 as such on 11.09.2018 the petitioner and her mother issued a legal notice upon the O.P. by their engaged Advocate, Sri Rajib Choudhury by speed post and by the said notice they mentioned that the sale agreement dated 05.05.2017 will have to be cancelled and the O.P. shall return/refund all the amount of Rs.6,50,000/- with 9% interest P.A. w.e.f. 08.03.2017(the date of first payment) along with compensation of Rs.5 Lac only to the petitioner and her mother as the petitioner suffered mental agony and financial loss. O.P. has received the legal notice on 13.09.2018 but till the filing of the complaint did not take any step as per direction of the legal notice. It is also alleged that the O.P. did not perform his duty and construction work as per guideline and sale agreement. So, it amounts to deficiency of service on his part. Hence petitioner was compelled to file this complaint before this Forum seeking compensation amounting to Rs.11,50,000/- with 9% interest.

 

2. On the other hand O.P. contested the case by way of filing written statement. In the written statement Opposite party averred that the complaint petition is not maintainable in its present form and nature and it is misconcept one. It is also stated that the complainant have miserably failed to make out any case for establishing any deficiency of service by the O.P and the  petition is liable to be dismissed in limine. The instant complaint suffers from non-joinder of necessary parties, since the complainant did not make Agartala Municipal Corporation as necessary party. It is also stated that the complainant approached the Forum with unclean hands and she has also suppressed material facts and made some untrue statements. It is also stated that as per terms and conditions of the agreement the complainant ought to have paid Rs.8 Lac i.e., 25% of the total consideration value of the flat with parking place for an amount of Rs.32 Lac. But the complainant disregarding the condition for the sale agreement dated 05.05.2017 have paid an amount of Rs.2,40,000/- in total till 05.05.2017 violating the terms and conditions. It is also admitted by the O.P. that the complainant paid an amount of Rs.6,50,000/- only in total and the last payment was made on 19.01.2018. It is averred by the O.P. that the intention and approach of the complainant was to play a fraud with the O.P. and the O.P. time and again have made personal approaches to the complainant after 19.01.2018 for releasing the intermediate as per condition of the payment so reflected in the sale agreement. But the complainant did not pay any heed rather broke the terms and conditions of the agreement and it is clear breach of contract and filing of the complaint before the Forum was a attempt to escape from her liability. Another thing was admitted by the O.P. that he appointed a planner and consultant namely Nirnoy Bhattacharjee who in turn has got the said plan prepared from one consultant namely Archiv Builder and Consultants Pvt. Ltd. and have also duly paid the requisite fee of Agartala Municipal Corporation as well as fees of the consultant in cash with the expectation that the said required amount of AMC would be paid by him, which in fact has not at all deposited by him. The complainant in the month of April, 2017 has informed the O.P. over telephone that on query by her, it came to her knowledge that there is no existence of building plan with respect to the said plot of land in the AMC and after being informed by the complainant, the O.P. without  wasting any time submitted a fresh plan which was totally identical with the previous plan and subsequently it has been approved by the Assistant Municipal Commissioner Central Zone, Agartala Municipal Corporation bearing No- AMC/CZ/32/2224/141614 dated 18.07.2017. It is further stated that there is no cause of action for the instant complaint and it is liable to be dismissed in limine with exemplary costs. 

 

3. Evidence Adduced by the parties:-

The complainant examined herself as P.W.1 and submitted her examination in chief by way of affidavit. She has produced documentary evidence by firisti dated 12.10.2018 and firisti dated 01.08.2019. The documents are as follows:-

(1) Sale Agreement dated 05.05.2017(12 nos. of sheets),

(2) Agartala Municipal Plan dated 28.01.2016 ( 7 nos. of sheets),

(3) Legal Notice dated 05.09.2018 (6 nos. of sheets),

(4) Postal Docket dated 11.09.2018(1 no. of sheet)

(5) Delivery Acknowledgment of Docket dated 11.09.2018(1 no. of  sheet),

(6) AMC letter dated 03.06.2017(1 no. of  sheet),

(7) Seizure List of original Agreement(1 no. of sheet),

(8) Information provided by AMC, Agartala dated 05.05.2017(3 nos. of sheets),

((9) Money Receipt dated 20.01.2018(1 no. of sheet),

(10) Bank Pass Book (2 nos. of sheets).

All the documents submitted by the complainant are marked as Exhibit- 1 Series.

Complainant was cross examined by the Opposite Party.

On behalf of the Opposite Party, he himself has been examined as O.P.W.1 and he has produced 2 documents namely (1) Approved Municipal Plan dated 18.07.2017(13 Nos. of sheets) and (2) Agreement for Sale dated 05.05.2017(11 Nos. of sheets) by firisti dated 11.12.2019. The documents produced the Opposite Party is marked as Exhibit – A Series.

Opposite party was cross examined and chapter of evidence was closed.

 

4. Points to be determined:-

(i) Whether there was/is deficiency of service and unfair trade practice indulged in by the Opposite party towards the complainant?

(ii) Whether the complainant is entitled to get compensation/ any relief as prayed for?

 

5. Arguments advanced by the Counsels of both parties:-

We have heard arguments of both sides at length. We have carefully gone through the pleadings of both the parties, evidence submitted by way of affidavit by both sides and also the documentary evidence adduced by the parties. We have also gone through the written arguments of both sides.

It is evident from the pleadings as well as the evidence of both sides that the complainant entered into an agreement for sale dated 05.05.2017. There is no dispute in respect of the fact that in the agreement dated 05.05.2017 that the Opposite party has shown the AMC sanctioned Plan vide No- HC/4838/16/AMC/1182-96 dated 28.01.2016. The agreement dated 05.05.2017 was the bone of contention of the complainant's case. Relying upon this document which is marked as Exhibit- 1 Series, the Learned Counsel of the complainant submitted that subsequently complainant came to know that the aforesaid plan was not sanctioned or approved by the Agartala Municipal Corporation. Inspite of repeated requests the Opposite party did not show any approved sanction plan of the AMC to the complainant in respect of the construction. The conduct of the Opposite party amounts to violation of the provision of the contractual obligation. Therefore, the complainant has a right to cancel the agreement/contract. In this regard complainant also issued an Advocate's Notice to the Opposite party which was duly received by him. Thereafter also Opposite Party remained silent. It is argued by the Learned Counsel of the complainant that there is no fault on the part of the complainant though complainant in total made payment of Rs.6,50,000/- to the Opposite party by 5 nos. of cheques of various dated. There is also no dispute in respect of payment. Learned Counsel of the complainant further submitted that having no alternative the complainant approached this Forum for getting legal remedies as per Consumer protection Act. The complainant is entitled to get refund of the entire deposited money which was paid by her along with suitable interest, compensation and litigation cost. 

 

6. On the other hand Learned Counsel of the Opposite party submitted that the complaint is not maintainable as the complainant did not make payment of 1st installment as per terms and conditions of the agreement. Learned Counsel relied upon Para-17 of the agreement which has contained at Page-7. As per Para-17, there is a condition that ''If after this agreement the 2nd part expressed his inability to continue with the agreement or fails to make payment as per clause '2' then the amount paid would be forfeited.'' Relying upon this Para-17 Learned Counsel of the Opposite party submitted that there was no laches or negligence on the part of the Opposite party as because Opposite party subsequently got the sanction plan modified/rectified and for that reason the complainant in no way suffered any loss. It was a technical matter only. The Learned Counsel of the Opposite party further submitted that the intention of the complainant was dubious from the very beginning. She did not perform her part as per terms and conditions of the agreement and she also failed to pay 25% of the total amount by way of 1st installment rather she made the payment of Rs.6,50,000/- by a piecemeal manner, which are beyond the terms and conditions of the agreement. However, Opposite party ignored all these matter and verbally approached the complainant to make the full payment as per terms and condition and to take the possession of the flat concerned.  For the conduct and behavior of the complainant the Opposite party suffered a huge loss  as the Opposite party invested huge money for making construction of the flat. It is further submitted that as per terms and conditions of the agreement the instant complaint petition is not maintainable and it is liable to be dismissed with costs.

 

7. Decision and reasons thereof:-

After careful perusal and appreciation of the evidence of both parties we find that there is no dispute in respect of the booking of the flat concerned. It is also admitted fact that the complainant did not make payment of 1st installment as per agreement. However, the complainant made payment in total Rs.6,50,000/- in piecemeal  manner. There is also no dispute. Now the question is whether complainant is a defaulter? From the evidence of both sides we find that the agreement dated 05.05.2017 is relied upon by both the parties and this agreement is exhibited by both sides. The said agreement is the main factor for our decision. It is admitted fact that in the agreement opposite party had shown the AMC building plan as sanctioned vide no- HC/4838/16/AMC/1182-96 dated 28.01.2016. That means it is very much clear that before entering into the agreement Opposite party was sure and confident about the sanctioned plan which is a vital document for housing construction work. From their evidence it is found that opposite party admitted that their architecture/building planner and consultant namely Sri Nirnoy Bhattacharjee actually misguided them and there was no existence of any building plan which was shown in the agreement. In this regard we must say that the Opposite party was very much negligent about the approval of the plan and he was supposed to know about the actual fact of the approval of the plan by the Agartala Municipal Corporation before entering into the agreement and signing the agreement. Again we must say that the complainant is at liberty or has every right to cancel the agreement, if it is found subsequently that there was any wrong or misrepresentation. Now, we opine that the Opposite party has cheated the complainant by adopting unfair means and the conduct of the Opposite party is also amounts to deficiency of service and O.P. thus indulged in unfair trade practice. The complainant has suffered mental agony and harassment on account of unfair trade practice adopted by the O.P. Therefore, we are of the considered view that the complainant is entitled for refund of the principal amount with reasonable interest and also cost of the litigation . Accordingly, point no.1 & 2 are decided.

In view of the discussions made above we find and hold that the complainant had succeeded in establishing her case U/S 12 of the Consumer Protection Act, 1986 against the O.P.

We accordingly, find O.P. is guilty of committing unfair trade practice against the complainant. 

 

8. The next point which arise for consideration is how much interest and cost is to be paid to the complainant on the principal amount. Having regard to the fact that the bank have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the regular market situation & considering the recent decline in the cost of borrowing and return on the investment made with the bank, we are of the view that @ 9% P.A. would meet the ends of justice, together with of Rs.5000/- as litigation cost.

 

9. In  the result, the complaint is partly allowed. It is hereby directed that the O.P. shall return/refund the principal amount i.e., Rs.6,50,000/-(Rupees Six Lac fifty Thousand) along with interest @ 9% P.A. from the respective dates of deposits till the realization. O.P. also shall pay Rs.10,000/- to the complainant for mental agony and harassment together with Rs.5,000/- being the cost of litigation. Thus, the O.P. shall have to pay in total Rs.6,65,000/- (Rupees Six Lac Sixty Five Thousand) only to the complainant within a period of 2(two) months from the date of the judgment, failing which the principal amount shall carry interest @ 12% P.A. for the said period i.e., from the respective dates of deposits till the date of realization. Thus, the case is disposed of on contest. 

Supply copy of the Judgment  to both the parties free of cost.

 

  Announced

 

 

 

SHRI R. PAL

PRESIDENT,

DISTRICT CONSUMER 

 DISPUTES REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA.

 

 

 

SMT. DR B PAUL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.