DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No.  159/2021

Date of Filing:-                        Date of Admission:-                     Date of Disposal:-

           23.08.2021                                    22.11.2021                           25.08.2023

P R E S E N T                       :- Smt. Sukla Sengupta……………President.

:- Smt. Monisha Shaw.…………… Member.

                                                :- Sri.  Abhijit Basu………………. Member.

JUDGMENT/FINAL ORDER

This complaint is filed by the Complainant U/s 35 of the Consumer Protection Act, 2019.

The fact of the complaint was searching for a residential flat, Complainant was introduced by one Mr. Soumen to O.P No. 1, who is developer. O.P No. 1 showed a flat to the Complainant measuring about 639 sq.ft. super built up area being flat no. ‘a-15’, 3^rd floor, at Jibon Lila apartment of 72, Vivekananda Sarani, situated at Sodepur, P.S. Khardah, District – North 24 Parganas, Pin – 700110 with a consideration moiney of Rs. 9,50,000/-. The Complainant agreed to purchase the said flat with said consideration money. Complainant paid Rs. 2,00,000/- in cash to O.P no. 1. Complainant and O.P No. 1 made an agreement for sale on 31.10.2016 and in that agreement for sale Rs. 1,50,000/- was received by the O.P no. 1 in Memo of Consideration. It is also mentioned that the O.P No. 1 sold the said flat on belhalf of the owner and developer being Deed no. 130/2017 which was registered before A.D.S.R., Sodepur, North 24 Parganas. It is revealed in the Deed of Conveyance that Complainant paid total Rs. 9,50,000/- for purchase the said flat. The O.P No. 1 signed and sealed for receiving the said consideration amount. The Complainant submits that at the time of booking the said flat O.P No. 1 told the Complainant that he would arrange a house loan of Rs. 8,41,188/- through O.P No. 2 icluding registration charges of Rs. 1,10,000/-. The O.P No. 1 handed over the possession to the Complainant on 29.12.2016. The cloud cast upon the Complainant long after possession of the said flat on 10^th July 2018 when officials of proforma O.P No. 3 i.e. Allahabad Bank presently amalgamated with Indian Bank. (Now it is called as Indian Bank and hereinafter called Indian Bank). It came to notice of the Complainant on 10.07.2018 when the officials of Allahabad Bank now Indian Bank came to the flat of the Complainant along with large number of police officials and they asked the Complainant to vacate the flat at once.

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It came to the knowledge from the said officials of Allahabad Bank now Indian Bank that a loan was taken by one Joy Chatterjee from Allahabad Bank now Indian Bank. The said Joy Chatterjee was not paid the loan amount hence the bank was classified N.P.A. At that time on 10.07.2018, Complainant came to know that the flat of the Complainant along with the adjacent flat of proforma O.P No. 4 were sold out earlier to said “Joy Chatterjee” by O.P No. 1. Joy Chatterjee taken house loan but he did not reimbursed the home loan thus the Indian Bank took physical possession over the property. The manager of Indian Bank assured to sale the two flats as single flat meaning about total 1824 sq.ft. on 3^rd floor being flat no. ‘3A’ and ‘3B’ respectively at 9, Vivekananda Sarani, P.O. Sodepur, P.S. Khardah, District – North 24 Parganas for consideration of Rs. 9,60,000/- each through e-auction. Finding no other alternative the Complainant and proforma O.P no. 4 purchased the said property from Indian Bank through e-auction. After payment the consideration money Indian Bank issued sale certificate and possession letter to your Complainant; But the O.P No. 3 did not prepare proper instrument for sale of ‘B’ schedule property and did not register the Deed of Conveyance.

Compelling circumstances the Complainants filed this case against Opposite Parties for relief as prayed for.

Following issued were framed for the purpose of decision:-

1. Whether the complaint is maintainable or not?

2. Whether the Complainant is entitled to get relief / reliefs in this case or not?

Decision with reasons:-

Considering the facts and circumstances as well as nature and character of this case all the points are interlinked to each other and as such all the points are taken up together for consideration for the sake of brevity and convenience.

On perusal of the materials record along with the supporting affidavit related to documents available in the case record as well as hearing of argument it revealed that the Complainant is a consumer as per Consumer Protection Act and O.Ps are service provider.

The Complainant purchased a flat from O.P No. 1 for a consideration money of Rs. 9,50,000/-. The Complainant make down payment of Rs. 2,00,00/- by cash the Complainant and for balance payment the O.P No. 1 arrange and negotiated all arrangement with O.P No. 2 who is the reliable financial institution namely ‘Dewan Housing Finance Corporation Ltd.” O.P No. 1 is Developer. O.P No. 1 arranged for balance payment of Rs. 8,41,188/- from O.P No. 2, the amount was sanctioned by O.P No. 2 including registration charge of Rs. 1,10,000/-. All the arrangement for loan was made by O.P No. 1 from O.P No. 2. It is system for sanction any loan that before sanction the loan amount always the sanctioning authority search the relevant documents, place etc. After satisfaction all corners of non-encumbrances the loan sanctioning authority sanctioned the loan. It is normal procedure as per settled law.

In this case it is revealed that there is no existence of flat as mentioned in the conveyance which registered at A.D.S.R Sodepur office by O.P No. 1. It is revealed from the case record and also from submission of the Ld. Advocate for Complainant that the O.P No. 1, the Developer of the building sold the same flat in the year 2005 by a registered Deed of Conveyance to me Joy Chatter vide Deed No. 2302 in the year 2005 which was registered and recorded at the office of District Sub-Registrar – 1, Barasat, North 24 Parganas.

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But the Developer registered the same flat and handed over the possession of same flat to the Complainant in the year 2017 but intentionally changed said non existence flat number. It is submitted by the Complainant that in collusion with O.P No. 1 and 2 made said illegal act and frauded to the Complainant by this way. The said Joy Chatterjee who purchased the said flat was taken home loan from Allahabad Bank now Indian Bank but did not reimbursed the Home Loan thus the Indian Bank declared N.P.A and therafter officials of Indian Bank (with the help of Police Person) came to take physical possession over the suit property, where the Complainant was in possession which was handed over by the O.P No. 1, the developer of the building. Compelling circumstances the Complainant again purchase the flat from the banking authority through e-auction and paid Rs. 9,60,000/- for purchase same flat being flat no. ‘3A’ at at 9, Vivekananda Sarani, P.O. Sodepur, P.S. Khardah, District – North 24 Parganas. It is mentioned that the O.P No. 1 flasely mentioned the flat no. – A-15 of 3^rd floor of 72, Vivekananda Sarani, P.O. Sodepur, P.S. Khardah, District – North 24 Parganas in loan agreement and Deed of Conveyance instead of Jiban Lila Apartment in lieu of ‘3A’, 3^rd floor, at 9, Vivekananda Sarani, P.O. Sodepur, P.S. Khardah, District – North 24 Parganas reason best known to him. It is also revealed from the documents and case record that the flat sold by the developer O.P No. 1 to Complainant at 3^rd floor (South-East side) at premises under Ward No. – 15 (old) and 16 (new), holding no. – 43 (old) and 72 (new), R. S Dag No. – 105, under R. S. Khatian No. – 1392 at Vivekananda Sarani vide Deed No. 130/2017 which was registered at A.D.S.R, Sodepur North 24 Parganas. The said Developer / O.P. No. 1 also sold two flats in 3^rd floor (entire floor) at Mouza – Sodepur, Dag No. – 105, Khatian No. 1392 at holding no. – 43, Wad No. 15 at P.S. Khardah, Mouza – Sodepur District North 24 Parganas by a Deed of Conveyance being no. 2302 of 2005, which was registered before D.S.R. – 1, Barasat, North 24 Parganas.

By comparing the Dag Nos. and holding number it revealed that one building was developed upon same flat sold one part of land being Dag No. 105, holding no. – 43 (old) and 72 (new). The O.P sold the flats in 3^rd floor in the year 2005 and again sold the same flat in the year 2017 charging the other address but the plot no. and holding no. is same. Same flat sold twice in two person which would be treated as unfair trade practise as per Consumer Protection Act, 2019.

We observed that the Complainant paid consideration money to the O.P No. 1 developer herein as much he is a consumer as per Consumer Protection Act and the O.P No. 1 received the money for provide service but he provide flat with wrong information with unfair trade practise as the O.P No. 1 sold the flat and handed over property to other person earlier. With full knowledge of the O.P No. 1 he misrepresented the Complainant and / or suppressed the original facts to the Complainant  which would be treated as deficiency of service. Hence, the activities of O.P No. 1 would be treated as deficiency of service and unfair trade practise also. In this case Complainant is a consumer as he paid money and O.P No. 1 is service provider as he received the money for provide service but the O.P No. 1 failed to provide his service his service as he did not made deed of conveyance properly as promised and misrepresent to the Complainant which would be treated as unfair trade practice.

Moreover the Complainant paid the entire consideration money to O.P No. 3 through e-auction and purchase the same flat where the Complainant purchased earlier. As the Complainant paid full consideration money to the O.P No. 3 hence Complainant is also consumer of and O.P No. 3 O.P No. 3 is the service provider as per Consumer Protection Act, 2019. As O.P  No. 3 received entire consideration money so O.P No. 3 is service provider.

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O.P No. 3 is not yet registered the Deed of Conveyance in favour of the Complainant, therefore O.P No. 3 is not provide his service which will be treated as deficiency of service on the part of O.P No. 3 also. Considering the facts and circumstance of the case and perused all document, complaint and written version filed by O.P No. 4 and it is admitted by O.P No. 4 that all allegations labeled against O.P No. 1 and 2, O.P No. 3 filed a non – maintainability petition stating that ‘No civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a debt recovery tribunal or the Appellate Tribunal is empowered by or under this act to determine and no injunction shall be granted by any course as other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this act or the Recovery of Debt to bank and Financial Institution Act, 1993 (51 of 1993)’.

The instant case is not for recovery of debt so this case shall not be entertained in any manner.

O.P No. 3 also filed W/V. In W/V O.P No. 3 stated that Complainant is cheated and duped by O.P No. 1 and 2 and he came to know the facts from Indian Bank. The O.P No. 3 also admitted that the suit property sold to the Complainant through e-auction as Complainant was the highest bidder and received full consideration money.

It found from the material of record that O.P No. 1 and 2 is not appeared in this case and did not file any written version against the allegations of complaint by filing any evidence or oath. The Complainant proved the case by swearing affidavit which was not controvert by Opposite Parties. Therefore, we find that the Complainant has proved the case and is entitled to get decree in his favour. Proforma O.P No. 3 admitted that O.P No. 3 has transferred the suit property in question in e-auction and is also ready for registration process and the Complainant is ready to bear the cost. The only allegation against O.P No. 3 is for not execute deed of conveyance and registration. The real dispute is between the Complainant and the O.P No. 1 and 2 who alleged cheated the Complainant and fraudulently taken money from the Complainant who prays for recovery of such money from O.P No. 1 and 2. This case is within the territorial and pecuniary jurisdiction of this Commission, hence, this Commission has ample power to try this case.

The Complainant proves his case as much he is entitled to get relief as prayed.

We are in view that as the Complainant is the Consumer of O.P No. 1, 2 and 3 hence, O.P No. 1, 2 and 3 are liable to provide their service to the Complainant. But O.P No. 1 and 3 did not provide their service as per law and O.P No. 1 is also liable for unfair trade practice. The O.P No. 1 making statement in writing and falsely represents the old goods as new goods, characteristics and false and misleading representation and also make misleading service by registered the said deed of conveyance and O.P No. 1 did not provide proper service which would be treated as deficiency of service and also materially misleads the Complainant which would be treated as unfair trade practice and deficiency in service also. As Proforma O.P No. 3 did not register the deed of sale certificate which would be treated as deficiency in service.

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Hence,

it is ordered,

            That the case being no. C.C .159/2021 be and the same is allowed on contest against proforma O.P No. 3 and ex-parte against O.P No. 1 and 2.

            Opposite Party No. 1 is directed to refund the money of Rs. 8,41,188/- togetherwith Rs. 3,10,000/- which were taken by the O.P No. 1 from the Complainant (total Rs. 841,188/- + Rs. 3,10,000/- i.e. Rs. 11,51,188/-) with 6% interest from the date of receipt of the money till recovery and with Rs. 1,50,000/- compensation cost and litigation cost to the Complainant within two months from the date of this Judgment.

            It is also directed to proforma O.P No. 3 to execute and register the sale certificate deed in favour of the Complainant regarding suit property within two months from the date of the delivery of Judgment. Failing which the Complainant is at liberty to file execution case according to law.

            Let plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

Member

            Member                                             Member                                             President