SAMIKSHA BHATTACHARYA, MEMBER
The instant Revision Petition has been directed by the Revisionists/OPs No. 1, 2 & 3 of the Complaint Case against the Order dated 17.02.2023 in Miscellaneous Application No. 59/2022 arising out of CC/5/2022 pending before the Ld. Additional District Consumer Disputes Redressal Commission, Rajarhat, New Town, (hereinafter referred to as the ‘District Commission’).
Today is fixed for passing order in respect of the admissibility of the Revision Petition.
OPs No. 1, 2 & 3/Revisionists filed a petition before the Ld. District Commission being No. MA/59/2022 for dismissal of the complaint case on the ground that the case is not maintainable. By filing the Miscellaneous Application, the OPs No. 1, 2 & 3 has contended that since refund of Rs.7,55,000/- has already been made in favour of the complainants/Respondents No. 1 & 2, the complainants are ceased to be consumers. The another point mentioned in the petition challenging the maintainability of the case as stated in the petition filed by OPs No. 1, 2 & 3 is that as per Development Agreement, OPs No. 1, 2 & 3 duly constructed the entire G+5 storied building in the name and style of “Nirmala Apartment” and on 05.01.2019 the OPs No. 1, 2 & 3 received the completion certificate from the concerned Authority of South Dum Dum Municipality. In the last part of June 2014, the complainants/Respondents No. 1 & 2 approached the OPs No. 1, 2 & 3 to purchase a flat being Flat No. 4B located in the 4th floor of the building, namely, Nirmala Apartment for a total consideration of Rs.71,00,000/-. However, on negotiation, the said consideration amount was fixed at Rs.68,50,000/-. It was agreed that the execution of a registered deed of conveyance shall be completed within September, 2021. It was mentioned in the petition filed by the OPs No. 1, 2 & 3 that the complainants proposed that they would bear Rs.23,50,000/- personally out of their own fund and they would take the bank loan for the rest amount of Rs.45,00,000/-. In the month September, 2021, the complainants paid Rs.5,00,000/- out of their personal contribution of Rs.23,50,000/- and the complainants were neglecting to pay Rs.18,50,000/- on some pretext in spite of repeated requests made by OPs No. 1, 2 & 3. Only on 19.10.2021, the complainants paid Rs.9,50,000/- out of balance remaining personal contribution of Rs.18,50,000/-.
When the OPs No. 1, 2 & 3 have urged for payment of balance Rs.9,50,000/- by 03.11.2021, the complainants have sent emails dated 31.10.2021 and 01.11.2021 averting that they are unwilling to pay balance amount of Rs.9,00,000/- from their personal contribution and they would pay the balance amount on the date of registration of the deed. On receipt of such emails, the OPs withdrew their initial conditional offer, i.e, the consideration of the flat at Rs.68,50,000/- counter offered to sell the flat at a consideration price of Rs.70,00,000/-. The complainants refused to accept the said counter offer of the OPs. The OPs No. 1, 2 & 3 urged that the complainants to pay balance consideration of Rs.9,00,000/- from their own personal contribution on urgent basis and it was also intimated to the complainants that all the documents in connection with said flat have been handed over for sanctioning bank loan. Then the OPs deducted 10% of the total consideration amount of Rs.68,50,000/- as a part losses incurred to their business and out of received amount of Rs.14,50,000/- and thereby, refunded Rs.7,55,000/- to the complainants. Since the OPs No. 1, 2 & 3 refunded the amount, the Ld. Advocate for the OPs No. 1, 2 & 3 argued that the complainants are rescinded all offer/acceptance in between the complainants and OPs and a letter was sent to that effect. Therefore, the relationship between the complainants and the OPs No. 1, 2 & 3 has been ceased. Hence he has prayed for dismissal of the complaint case since no binding agreement for sale was executed in between the parties and the present dispute does not fall under the category of Consumer Dispute.
Upon hearing the Ld. Advocate for the OPs No. 1, 2 & 3 and on perusal of the impugned order passed by the Ld. District Commission and the entire materials on record, we have observed that the complainants agreed to purchase a flat from the developers/OPs No. 1, 2 & 3 at Rs.68,50,000/- but the Developers failed to hand over the relevant documents to the complainants and the complainants could not make full payment on their personal capacity without taking the bank loan for which they needed the documents from the developers. Since the allegation by the complainants is non-supplying of documents and for the reason of non-supplying of documents, they could not avail the bank loan. Therefore, they had no option but to cancel the agreement and requested for refund. Therefore, in the present case it cannot be said that the complainants willfully wanted to cancel the agreement and willfully received the refunded amount. Moreover, the refunded amount paid by the OPs No. 1, 2 & 3 is not the full amount what was deposited by the complainants. The Ld. Advocate for the Revisionists/OPs No. 1, 2 & 3 drew our attention by showing Clause No. 4 of the Agreement for Sale entered by and between the parties (internal Page No. 6) wherefrom it appears that if the purchasers fails to pay the full consideration within one month from the date of signing this agreement developer has the right to cancel the agreement and will refund the money after deducting 10% of total consideration as fine for non-payment on time. It is astonishing that the Agreement for Sale, which is annexed with the Revision Petition, is undated and there were no signatures on behalf of the Vendors/First part, Purchasers/Second part, partner of the Shree Shyam Realtors i.e., Developer/Confirming party/Third party. From the record, it appears to us that Rs.5,00,000/- has been received by the OPs No. 1, 2 & 3 on 16.08.2021. Thereafter, the Revisionists have annexed the money receipt (at running page 38 Annexure-b) dated 22.10.2021 towards Rs.9,50,000/-. If the Agreement for Sale was executed on the date of first payment i.e., on 16.08.2021 what compelled the OPs to receive Rs.9,50,000/- on 12.10.2021 after expiry of more than two months from the date of receipt of first payment whereas the clause No. 4 mentions that the purchasers would pay total consideration within one month from the date of Agreement for Sale. Therefore, this clause has been violated by OPs No. 1, 2 & 3 themselves. The comlainants wanted to deposit Rs.9,00,000/- on the date of registration. If the OPs No. 1, 2 & 3 would act as per Agreement then the complainants’ own payment of Rs.23,50,000/- would be completed within one month from the date of Agreement for Sale. The OPs No. 1, 2 & 3 are silent about the date of registration and the date of delivery of actual possession for the flat in question. The Revisionists/OPs No. 1, 2 & 3 have admitted that the complainant has paid Rs.14,50,000/- in total for the flat in question. The OPs have failed to show any documents which can prove that they have supplied all the necessary documents in time to the complainants for availing bank loan by the complainants. Therefore, it is clear that the complainants had no option but to cancel the Agreement for Sale for non-supplying all the necessary documents to avail any loan. Therefore, only refund of Rs.7,50,000/- out of deposited amount of Rs.14,50,000/- by the complainant cannot end the relationship between the complainants and the OPs No. 1, 2 & 3 and it cannot be said that the relationship is ceased. Therefore, the Ld. District Commission has rightly observed that the relationship has not been ceased due to acceptance of part refund and the relationship cannot be considered is being ceased between the consumers/complainants and the developers/OPs.
In view of the above discussion and the on careful perusal of the impugned order, we find that there is no irregularity, impropriety or illegality in the impugned order passed by the Ld. District Commission.
Therefore, the Revision Petition is rejected without being admitted.
The Revision Petition is disposed of accordingly.
Let a plain copy be supplied to the Ld. Additional District Consumer Disputes Redressal Commission, Rajarhat, New Town by this Office.
