IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC/99/2011
 Date of Filing:     19.08.2011.                                                                Date of Final Order: 20.08.2015.
 
Complainant:         Sri Utpal Das, S/O Late Nemai Ch. Das, 163/A/7, A.C. Road, Indraprastha,
            P.O. Khagra, P.S. Berhampore, Dist. Murshidabad. 
Vs
Opposite Party:     1. Sri Aloke Kumar Ghatak, Partner, Greenseas Construction Company,
              84/1, Pilkhana Road, Ranibagan, Dist. Murshidabad. 
            2. Sri Amit Bose, S/O Late Sushil Kr. Bose, E-5, Golden Height Apartment,
            26, Sreeram Siromony Road, Kadai, P.O & P.S. Berhampore, Dist. Murshidabad. 
            3. Smt. Kajal Singha, D/O Sri Ashoke Kumar Singha, 
            96, R.N. Tagore Road, P.O& P.S. Berhampore, Dist. Murshidabad. 
        

                       Present:  Sri Anupam Bhattacharyya  President.                                 
                                         Sri Samaresh Kumar Mitra .Member.            
              Smt. Pranati Ali  Member
 
FINAL ORDER
 

Sri Anupam Bhattacharyya,Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for an order upon the Opposite Parties for registration of the sale deed and to make delivery of possession of the flat in favour of the complainant and compensation of Rs. 50,000/- for mental pain and agony and any other order as the Forum may deem fit and proper. 
The complainant's case, in brief, is that the complainant entered into an agreement for purchasing a flat at "Shantimoyee Apartment" at a consideration money fixed at Rs.4,33,800/-. The complainant has paid up the entire cost in various phases after taking loan from United Bank of India, Berhampore Branch amounting to Rs.2,50,000/-. After completion of construction the complainant approached the Opposite Parties for delivery of possession and registration of the flat in favour of the complainant. Then the Opposite Party informed the complainant that prior to registration the aforesaid complainant has to sign possession certificate. The complainant on reasonable belief put his signature in possession certificate and Opposite Party assured that the ownership deed would be registered very soon. But lapse of few months again the complainant approached the Opposite Party lastly on 21.01.2011 for necessary registration of flat No. E-3 at "Shantimoyee Apartment" and to make actual delivery of possession in favour of complainant. Thereafter, the complainant compelled to file this case. Hence, the instant complaint case.
The Written Version filed by the OP No.1, in brief, is that this OP has denied the entire complaint case categorically. With ulterior motive and to squeeze money the complainant has filed this case falsely. Hence, the instant written version.    
The Written Version filed by OP No.2, in brief, is that this OP has denied the entire complaint case. The complainant never paid any amount towards consideration money of the said flat in question out of his own fund. The amount of Rs. 2.5 lac was lent by UBI, Berhampore Branch. Subsequently, the complainant expressed his inability to purchase the said flat having no capacity to pay further amount of Rs.1,83,800/- only and he informed his willingness to purchase the said flat to Uttam Ghatak, the elder brother of OP No.1 and to UBI, Berhampore Branch intimating further fact that Uttam Ghatak will repay the loan amount. He also admitted that Uttam Ghatak paid Rs.50000/-. Uttam Ghatak repaid the entire loan amount of the said loan amount and the said Bank gave No Due Certificate on 17.01.2013 after closing this loan account on full satisfaction by full payment on one time settlement made my Uttam Ghatak. Right to purchase has been cancelled by the complainant. The complainant was never ready and willing to perform his part after expressing his inability to perform and for that there is no cause of action. The complainant is not entitled to get any relief. The complaint is liable to be dismissed. Hence, the instant written version.
    Considering the pleadings of all the parties the following points have been framed for disposal of this case.
Points for decision.
1.    Whether the complaint is maintainable in law and facts?
2.    Whether the complaint is barred by principles of estoppels, waiver and acquiesces or not?
3.    Whether the complaint is barred by law of limitation?
4.    Whether the complainant is a consumer or not?
5.    Whether the complainant is entitled to get any relief as prayed for?
6.    To what other relief/reliefs the complainant is entitled to get?
Decision with reasons
Point Nos. 1 to 6.
    All the points are taken up together for the sake of convenience.
    In this case the complaint has prayed for registration and delivery of possession of the flat or in the alternative refund of Rs.4, 33,800/- and compensation of Rs.50,000/- and cost to the complainant.
    The complaint's case is that as per agreement for sale of flat No. E-3 of Shatimoyee Apartment was allotted in favour of the complaint at a consideration of Rs.4, 33,800/- . The complainant has paid the entire consideration money on various phases taking loan of Rs.2.5 lacs from U.B.I., Berhampore Branch. On reasonable belief as per information given the OP that signature of the complaint will be required in possession certificate before registration, the complainant has put his signature in possession certificate but actual possession has not yet been given to the complainant. 
On the other hand OP No 2's, case is that   OP has denied the entire complaint case. The complainant never paid any amount towards consideration money of the said flat in question out of his own fund. The amount of Rs. 2.5 lac was lent by UBI, Berhampore Branch. Subsequently, the complainant expressed his inability to purchase the said flat having no capacity to pay further amount of Rs.1,83,800/- only and he informed his willingness to purchase the said flat to Uttam Ghatak, the elder brother of OP No.1 and to UBI, Berhampore Branch intimating further fact that Uttam Ghatak will repay the loan amount. He also admitted that Uttam Ghatak paid Rs.50000/-. Uttam Ghatak repaid the entire loan amount of the said loan amount and the said Bank gave No Due Certificate on 17.01.2013 after closing this loan account on full satisfaction by full payment on one time settlement made my Uttam Ghatak.   
Right to purchase has been cancelled by the complainant. The complainant was never ready and willing to perform his part after expressing his inability to perform and for that there is no cause of action. 
    To prove this case the complaint has filed evidence on affidavit.
    He has filed the following documents (Xerox copies) before this Forum on 11.11.2011.
1.    Letter dt. 02.01.2006 showing witness to purchase Flat at Shatimoyee Apartment.
2.    Loan application before UBI, Berhampore for Rs.2.5 lacs;
3.    Agreement for sale dt. 16.01.2006.
4.    Investigation and searching reports of the Ld. Adv Tushar Kanti Mazumder relating to the title of the property in question. 
5.    Letter of purchase requesting the Branch Manager, UBI, Berhampore Brach to make payment of the sanctioned loan amount of Rs.2.5 lacs direct to OP Greenseas Construction Company.
Further, on 10.6.2015 the complainant has filed Xerox copies of two documents on 17.1.13 mentioned hereunder:-
1.    No dues certificate issued by UBI, Berhampore Branch regarding one time compromise settlement of Housing loan A/c in the name of the complainant and his  wife Tanutapa Das. 
2.    Joint letter dt. 12.10.12 addressed to Sr. Br. Manager, UBI, Berhampore Br. regarding one time settlement of House loan A/C.
    The original letter dt. 12.10.12 regarding the above one settlement has been filed before this Forum on 20.6.2015 as per order of this Forum. 
    From the aforesaid original documents it is clear that the impugned Housing loan A/c of the complaint and his wife Tanutapa Das was proposed for one time settlement.
    There is also a clear averment of the proposed purchasers of the impugned flat at E-3 "Shantimoyee Apartment" that due to some unavoidable circumstances they could not avail of the Flat.
    From this averment it is clear that the complainant and his wife have rescind the agreement for purchasing the flat which is the clear case of the OP No.2, reveals from his written version.
    From the money receipt filed by the complaint it is clear that Greenseas Construction Co. received Rs.50, 000/- on 10.01.2006 towards booking money from the complaint-Utpal Das and his wife-Tanutapa Das and Rs.2.5 lacs from UBI, Berhampore Branch towards full payment of B/Loan of Flat No. E-3 at Shantimoyee Apartment.
    Regarding Bank Loan it is clear from the No Dues Certificate dt. 17.1.13 issued by UBI, Berhampore that the complaint has no dues to the Bank towards their housing loan of Rs.2.5 lacs.
    From this no dues Certificate dt. 17.1.13 it appears that United Housing loan A/c No. 0229300011003 in the name of Uptal Das and Tanutapa Das has been closed on 17.01.2013 under onetime compromise settlement and amount has been deposited by Uttam Kumar Ghatak on behalf of the party as per their letter dated 12.10.12.
    Further, from the original letter dt. 12.10.12 filed by the UBI, Berhappre Branch it appears that it was settled that Mr.Uttam Ghatak has promised to repay their outstanding loan and he deposited Rs.50,000/- earlier into their loan A/C.
    In this regard it is also clear that aforesaid Mr. Uttam Ghatak is not party to this case but it is clear that he is brother of OPNo.2 and there is one information filed by OP on 02.07.2015 that Uttam Kr. Ghatak has died on 24.5.15. 
    As per agreement for sale dt. 16.01.2006 for purchase of the impugned flat from Greensea which is the subject matter of this case and in this agreement OP Nos. 1 to 3 are the purchasers of Greensea Construction Co., the developer of 'Shantimoyee Apartment".
    Where, Mr. Uttam Kr. Ghatak is not a party to the impugned agreement for sale. Though he has some involvement in the onetime settlement document, the letter dt. 12.10.12.
    In this case Xerox copy of possession certificate signed by the complainant and his wife Tanutapa Das without date has been filed and the same has been challenged by the complainant as falsely collected by the OP with the false plea that the same will be required for registration purpose.
    Be that as it may, now it is clear from the original letter dt. 12.10.12 for closing the loan A/c for one time settlement with the averment that due to unavoidable circumstances they could not avail of the flat. Also, there is whisper that there is dispute amongst the partners of the Promoter Company. 
    Thus, at present there is no question of registration of Sale Deed and delivery of possession of the flat.
    Now, this Forum is to decide the alternative prayer of the complainant as to refund of amount received by the OP for the flat.
    From the counterfoil of the pay-in-slip of the bank towards payment of the installments of the loan and money receipts, filed by the complaint it appears that the complainant paid Rs.50,000/- to the developer Co. i.e Green sea Construction Co. on 10.01.2006 and deposited loan installments in total for Rs.1, 29,000/-.
    It is true that for the impugned flat the OP-Developer Greensea Construction Co. received Rs.2.5 lac from UBI, Berhampore Branch towards full payment of Bank Loan of Flat No. E-3 at Shantimoyee Apartment on 27.01.2006. 
    But, from the no dues certificate issued by the UBI, Berhampore Branch dt. 17.1.13 it is clear that the complainant has no dues to the bank towards loan amount for purchasing the impugned flat where the complaint himself deposited Rs.1, 29,000/- only towards repayment of the impugned Housing Loan.
    Thus, the complaint is entitled to realize Rs.1, 29,000/- + Rs.50, 000/- for booking the flat= Rs. 1, 79,000/- along with interest.
    In this case the complaint has prayed fort alternative relief for refund of Rs. 4, 33,800/- the entire consideration money plus compensation of Rs.50, 000/-.
    In this regard we find from the agreement for sale that Rs.1, 33,800/- is to be paid after the time of taking delivery of possession of the flat. 
    In this case there is no question of delivery of possession to the complainant and thus there is no question of payment of Rs.1, 33,800/- to the OP-Developer as per agreement for sale.
    From the evidence as discussed above it is clear that in this case the complainant has paid only Rs.1,79,000/- to the OP-Developer and as such we are of view that the complainant is entitled to get back the amount along with interest @ 8% pa. from the date of receipt of last money receipt on 27.01.2006 till date of its realization.
    Relying upon the reported decision II(2006) CPJ 339 (NC) where it has been held that there is no justification for allowing an award of Rs.20,000/- by way of compensation   as the complainant is getting interest. So, in this case also, the complainant is not entitled to get any compensation as prayed for. 
    Considering the above discussions as a whole we have no other alternative but to conclude that all those points are disposed of in favour of the complainant in part and the complainant is entitled to get Rs.1,79,000/- plus interest @ 8% p.a. from 27.01.2006 till the date of its realization
    Hence,
ORDERED
that the Consumer Complaint No. 99/2011  be and the same is hereby allowed on contest in part.     
The Opposite Parties are jointly and severally liable to pay Rs.1,79,000/- plus interest @ 8% pa. from 27.01.2006 till the date of its realization.
     The Opposite Parties are directed to pay Rs.1,79,000/- plus interest @ 8% pa. from 27.01.2006 till the date of its realization to the complainant within 60 days from the date of this order, failing which the Opposite Parties are to pay fine@ Rs. 100/- per day's delay and the amount so accumulated shall be deposited in the 'Consumer Legal Aid Account' .
    There will be no order as to cost.
    Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post  to the concerned parties as per rules, for information and necessary action.

                         Member                                     Member                                            President
    CDRF, Murshidabad.        CDRF, Murshidabad.                        CDRF, Murshidabad.