Date of Filing : 18/08/2021

Date of Judgement :  01/12/2023

Sri Sudip Niyogi, Hon’ble President

                                                                      BRIEF FACTS

Complainant had booked the flat, as mentioned in schedule `B’ and one agreement for sale dt. 6/11/2020 was executed between the complainant and OP, who is the Promoter of `A’ schedule property. The consideration of the said flat was fixed at Rs.43,53,000/-.

Complainant made advance of Rs.20,00,000/- by making payment on different dates, which was duly acknowledged by the OP by issuing money receipts.  As per the said agreement, the possession of the said flat was said to be delivered within 18 months from the date of the agreement.  After making payment of the said amount, complainant, by an e-mail dt. 2/8/2021, asked about the progress of work, but he was surprised on hearing from the OP, who took a false and frivolous plea that the flat booked by him was sold out to a third party.  He told the OP by an e-mail dt. 5/8/2021, that he never consented to any sale of his flat to any third party and always showed his willingness to pay the balance amount of consideration, to which the OP remained silent.  Complainant claimed to be the Head of Puri Unit of `Iskon’ and preaches consciousness across the globe. 

OP offered to refund the money advanced by the complainant only after collecting the same from third party.  Complainant further claimed that the OP made illegal gain and enjoyed the money advanced by the complainant for a year and is trying to twist the things as per his own whims.  He further claimed that without cancelling or repudiating the contract with him, OP cannot sell or alienate the scheduled property to any third party.  So, by filing the instant complaint, he prayed for an order upon the OP to deliver the possession of the scheduled flat, compensation and cost of litigation etc. 

OP contested the case by filing a written version.  He claimed that the complainant is not at all a consumer under the C.P. Act, 2019.  According to him, the agreement for sale dt. 6/11/2020 is an indenture of security of investment made by the complainant and so the complainant is entitled to get interest at the appropriate bank rate of interest on the amount of Rs.20,00,000/- advanced by him.  He also claimed that the complainant failed to comply with the payment schedule in accordance with the agreement for sale.  On being asked by the complainant, who informed about his financial difficulties to pay any further amount, he sold out the subject flat to other intending purchaser and arranged himself to pay back the money with appropriate interest.  So, he prayed for dismissal of the instant complaint.

Both the parties filed their affidavit-in-chief, also exchanged interrogatories and replies thereof and also filed Brief Notes of Argument. 

So, the point for consideration is, whether the complainant is entitled to any relief(s) in this case?

                                                                Findings

We have gone through the materials on record, including the affidavit-in-chief filed by both the parties and also the documents produced in connection with this case.  Complainant produced one copy of the agreement for sale dt. 6/11/2020 and also the money receipts and copies of correspondences through g-mail.  On the other hand OP did not produce any document.

What we find, OP admitted that the said agreement for sale dt. 6/11/2020 had been entered into between him and the complainant.  It is also admitted that complainant had agreed to purchase the scheduled flat i.e. one self-contained ground floor flat marked `C’ admeasuring 871 sq.ft. more or less (super built up) consisting of two bedrooms, two toilets, one kitchen, one drawing-cum-dining space at premises No. 65/2 Jainuddin Mistry Lane, Chetla, Kolkata 700 027 at a consideration of Rs.43,55,000/-.  The OP claimed to be the owner/developer in respect of the `A’ schedule property where he would raise one multi-storied building.  It is also admitted by the OP that it was agreed that the possession of the `B’ scheduled flat would be delivered to the complainant within 18 months from the date of the said agreement, subject to compliance with the payment schedule by the purchaser.

It is also found that the complainant paid Rs.10,00,000/- by way of cheques on different dates which is also shown in the memo of consideration of the agreement.  Apart from this, complainant produced two money receipts showing receipt of Rs.5,00,000/- each, by the OP.  In fact, the OP did not deny that he received Rs.20,00,000/- from the complainant towards consideration of the `B’ schedule flat. 

OP claimed that complainant failed to comply with the payment schedule in accordance with the agreement for sale, but he could not produce, despite being asked through interrogatories, any document to show that he had demanded further amount towards consideration from the complainant.  All the questions of the complainant in the interrogatories (relevant question Nos. 20, 21, 22) in this regard were answered by the respondent as irrelevant, which reveal that the OP tried to suppress the actual state of affairs and made the allegation that the complainant failed to comply with the payment schedule in the agreement for sale.

The OP claimed that, on being asked by the complainant, he proceeded and sold out the subject flat of the said agreement for sale dt. 6/11/2020 to other intending purchaser which was strongly opposed by the complainant.  According to the complainant, he never asked to come out of the agreement and requested the OP to sell it out to any third party.  In his questionnaire (question No. 25), complainant asked the OP about production of document to substantiate his claim to which he replied that he can produce witnesses to depose such facts.  But no witnesses were produced and examined during hearing on behalf of the OP to substantiate such facts.  He also failed to produce a single scrap of paper to show that he had already sold the said flat booked by the complainant and in respect of which he received a hefty amount of Rs.20,00,000/- towards consideration, to some other intending purchaser.  During  argument, Ld. Advocate appearing for the OP drew our attention to the correspondences through e-mails produced by the complainant during 28/7/2021 to 5/8/2021 between the complainant and the OP.  But nowhere in the said correspondences it is found that complainant had informed the OP that he would not buy the flat booked by him.  As already stated that the complainant claimed that he is ready to take the flat by paying the remaining consideration and that is why he sought for a direction upon the OP for possession of the flat booked by him.

Be it mentioned here that OP contended both, in his written version and evidence, that the complainant is not at all a consumer and he invested the money by way of an agreement for sale dt. 6/11/2020 which is symbolic in nature as a security of his investment.  According to OP, the activities between the parties are of purely commercial activities and therefore the complainant cannot be said to be a consumer and therefore the instant complaint is not at all maintainable under the C.P. Act, 2019.  In support of his contention, he cited one decision dt. 3/11/2022 of the Hon’ble N.C.D.R.C. under Consumer Case No. 307 of 2013 (Surendra Kapoor-vs-M/s. Pooja Construction Ltd. and thee others).

But what we find, the complainant denied the said allegations.  OP failed to produce any paper or evidence to show that the complainant made the said agreement for the purpose of investment.  Instead, it is found from the agreement for sale and the other accompanying circumstances that the complainant in order to get/purchase the scheduled flat at a consideration, hired the services of the OP.  So, complainant is found to be a consumer in accordance with the definition of the C.P. Act, 2019 and the instant case is maintainable.  Needless to mention it is, the facts and circumstances of the case as cited on behalf of the OP are found to be completely different from those of the present case.

Another thing which needs to be discussed is that the OP claimed the petition of complaint filed by the complainant is a premature one as the said complaint was filed before the stipulated period of 18 months for handing over the flat was over.

Admittedly, as observed earlier that the stipulated period of handing over the possession of the flat as agreed upon in the agreement for sale,  was 18 months from the said date of agreement dt. 6/11/2020 and the said period of 18 months would be in the month of April 2022 and this case was filed before this commission on 18/8/2021.  So, admittedly, the complaint was filed before the said period of 18 months was over.  However, in the meantime, the said period already expired long back during the pendency of this case.  We find, OP remained silent about this in his written version and also in his evidence and only in the Brief Notes of Argument he claimed that the complaint is a premature one.

What we find from our discussion as made above that the OP took the plea that he already sold the scheduled flat to other intending purchaser and he claimed this through e-mail dt. 2/8/2021 which is during the stipulated period or in other words, before the stipulated period of 18 months expired.  So, OPs are found to have unilaterally deviated from the terms of the said agreement or in other words, putting an end to the said agreement by claiming that he had sold out the scheduled flat booked by the complainant before expiry of the said stipulated period though he failed to establish the same during hearing as discussed hearing above.  Therefore, if the complainant had waited for the said stipulated period of 18 months to expire and then came to this commission for relief, the plea of the OP would not have been otherwise than the one taken in this case.  The acts of the OP created so much grave a situation for the complainant, where waiting for the remaining period to expire for getting redressal from this commission, became absolutely meaningless.  It is found to be the sheer anxiety of the complainant who is found to be a consumer that drove him to approach this commission for redressal. 

Therefore, considering the materials on record and the facts and circumstances of the case, we are of the opinion that the complainant has been able to prove his contention and that is why he is entitled to the relief(s) in this case.

Hence, it is

                                        ORDERED

That the instant complaint is allowed on contest with cost.

OP is directed to hand over the possession of the `B’ schedule flat to the complainant and also execute and register a deed of conveyance in respect of the flat in favour of the complainant on receiving the balance consideration from him in accordance with the agreement for sale dt. 6/11/2020 made between the parties.

OP is also directed to pay compensation of Rs.30,000/- and Rs.8,000/- towards cost of litigation to the complainant. 

OP is directed to comply with this order within 60 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law. 

Dictated and corrected by me

President