Dt. of filing -14/07/2017
Dt. of Judgement – 26/12/2018
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Soumen Maity alleging deficiency in providing services by the Opposite Parties namely 1) Ashok Kumar Singh 2) Smt. Sakuntala Devi Singh and 3) Smt Sagarika Mitra.
Complainant’s case in brief is that he entered into an agreement for sale on 17/4/2014 with the Opposite Parties to purchase a self contained flat measuring super built up area of 730 sq ft on second floor of the G+3 storied building along with one covered garage in the ground floor on a total consideration price of Rs.15,80,000/-. Complainant paid Rs.4,00,000/- out of consideration price by way of four cheques of Rs.1,00,000/-. Rs.2,00,000/ and Rs.50/000/- each. But when the Complainant applied for loan, he learnt that the land upon which building was constructed was mortgaged with SME, Bhownipore Branch. In the agreement Opposite Parties even though had stated that the property was free from all encumbrances. So Complainant asked the OPs to return the amount. He was returned Rs.2,00,000/- but rest of the amount of Rs.2,00,000/- was not returned by the Opposite Parties inspite of notice sent by the Complainant. Hence this complaint is filed by the Complainant for directing the Opposite Parties to return back Rs.2,00,000/-, to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation cost.
Case has been contested by the OP No.2 and OP No.3 by filing separate written version denying the allegation made in the petition of Complaint stating inter alia that they never received any such amount of Rs.4,00,000/- as claimed by the Complainant and so question of returning the same did not arise. It is also stated that from the copy of the agreement it is apparent that Complainant being satisfied about marketable title of the owners in respect of the property, right title, and interest of the developer became interested to purchase the flat. Thus both the OPs have prayed for dismissal of the complaint petition.
On perusal of the record it appears that inspite of entering appearance, OP No.1 failed to file written version and thus the case proceeded ex-parte against him.
Complainant has annexed with the petition of complaint copy of agreement for sale, copy of relevant portion of statement of account and the notice sent to OP No.1 the developer.
During the course of evidence Complainant and the contesting OPs filed their respective evidence by filing affidavit-in-chief followed by filing questionnaire and reply thereto. Argument has been advanced by the parties and the Complainant has also filed brief notes of arguments.
So the parties require determination is:
- Whether there has been any unfair trade practice?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for discussion for comprehensive discussion. From the copy of agreement for sale filed in this case by the Complainant, it is evident that an agreement for sale was entered into between the parties on 17/4/2014 whereby Complainant agreed to purchase a flat in the second floor measuring super built up area of 730 sq ft in a G+3 storied building along with a covered garage at a total consideration price ofRs.15,80,000/-. Complainant paid Rs.4,00,000/- is evident from the money receipt filed as well statement of bank account. According to Complainant he has been returned Rs.2,00,000/- only out of Rs.4,00,000/- paid by him.
It appears from the recital in the agreement that it is stated therein that the property is free from encumbrances but from the letter dated 18/6/2015 sent by the bank to the Complainant, it is evident that the land in which building was constructed was mortgaged with SME, Bhownipore Branch. So it is apparent that there has been misrepresentation in the agreement for sale that the property was free from encumbrances and so the Complainant is entitled to return of the amount paid by him. It is not the case of the contesting OPs that entire Rs.4,00,000/- has been paid back. If that be so then the Complainant is entitled to get back the balance amount of Rs.2,00,000/- as there has been unfair trade practice.
It is true that in the agreement for sale, signatory is the OP No.1 the developer but he was the constituted attorney of the OP No.2 & 3 and as such they cannot escape from the liability especially when OP No.2 appears to be family member of the OP No.1. So all the OPs are jointly and severally liable.
These points are thus answered accordingly.
Hence,
ORDERED
CC/391/2017 is allowed on contest against OP No.2 & 3 and ex-parte against OP No.1. The Opposite Parties are directed to return back Rs.2,00,000/- only to the Complainant along with interest @10% in the form of compensation from the date of filing of this complaint. They are further directed to pay Rs.10,000/- as litigation cost within two months from the date of this order in default, the amount shall carry interest @ 10% p.a. till realization.
