Sankar Kumar Ghosh, President.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant.
In a pith and marrow the complainant’s case is that op nos. 1 and 2 are the owners of land in question mentioned in the scheduled of the complaint and op no. 1 is the developer. It is also alleged by the complainant that op nos. 1 and 2 after purchase the land in question entered into an Development Agreement with op no. 1 for raising multistoried building and op no. 1 made a joint venture with op nos. 2 and 3 to that effect. It is also alleged by complainant that op no. 1 does his business under the name on style as “GSR Apartment”. Complainant claims that he has business at Kharubazar and it is op no. 2 is a regular customer of complainant and as such there is good relation in between them. On being informed from op no. 2 complainant expressed his intention to op no. 2 that he is ready to purchase an ownership flat. Thereafter complainant visited that spot and found that except ground floor, other floors of the buildings are completed. Complainant agreed to purchase a flat which is mentioned specifically in the schedule of the complain and consideration money of the said flat had been fixed to Rs. 11,41,511/- (Rupees eleven lakhs forty one thousand and five hundred eleven). Thereafter complainant paid Rs. 2,00,000/-(Rupees two lakhs) only as advance and ops placed a Sale Agreement before the complainant for execution after receiving advance and after exchange of different talks between complainant and ops regarding instalments and other matters etc and getting assurance from the ops the complainant in a good faith entered into an agreement. It is also stated by complainant that another sum of Rs. 30,000/-(Rupees thirty thousand) complainant paid to Kaustav Ghosh, representative of op no. 1 towards further advance by a cheque and that apart complainant alleged that he paid cash of Rs. 20,000/- (Rupees twenty thousand) to the concerned deputed person of ops. in connection with fixing glaze titles and marble works etc. it is also alleged by complainant that meanwhile syndicate bank disbursed loan to the complainant and started to realise EMI and complainant further alleged that even after sanction of loan complainant repeatedly requested ops to execute Sale Deed after completion of unfinished works and at this juncture ops started to give blame each other and subsequently bypassed their obligation on 27.2.2017 by sending a letter alleging false blame upon complainant and complainant already replied to that letter of ops on 4.3.2017. It is alleged by complainant due to unwillingness of the ops to complete the unfinished work in the flat in question and in the passage for ingress and egress of the flat in question and due to delay in execution and registration of deed in respect of the flat in question and giving delivery of the same the complainant was force to pay EMI for the loan to the bank @ Rs.10,124.71/- (Rupees ten lakhs one hundred twenty four point seventy one)since 30.11.2016. Complainant also states that Syndicate Bank disburse the loan to the complainant and started to realize the EMI from the complainant. It is also alleged by the complainant that opposite parties will fully neglected to perform their duties and the attitude of the rude behavior of the opposite parties the complainant practically gave up his willingness to purchase the flat in question and thus petitioner requested the opposite parties to return back his advance money of Rs.2,30,000/- (Rs.2,00,000/- on the date of agreement and Rs.30,000/- by a cheque) plus Rs.20,000/-. Complainant further states that getting no alternative he initiated this case.
The opposite party No.1 separately and opposite party No.2 & 3 jointly filed written versions denying the material allegations initiated by the complainant. In his written version opposite party No.1 has admitted about the execution of agreement for sale and has stated clearly that complainant has paid only Rs.2,00,000/- (Rupees two lakhs) out of total consideration amount and thereafter complainant has failed to pay all the balance installments inspite of several requesters from the opposite parties. It is also stated by the opposite party No.1 that on 27.2.2017 he gave final letter by registered post and as per said letter he cancelled the agreement for sale as the complainant has failed to pay the balance amount within 07 days from the receipt of said letter dated 28.2.2017 by the complainant.
Opposite party also stated that till today he is ready to hand over and register the said flat in question in favour of the complainant subject to payment of balance mount as per agreement for sale by the complainant and opposite party finally, has prayed for dismissal of the case with cost.
Opposite party No.2 & 3 in their written version has stated that though the complainant put his signature on the agreement for sale but he did not follow the payment schedule as per said agreement for sale. It is also alleged by them after the expiry of stipulated period of the agreement for sale the complainant instituted the present case to save his skin. They also state that their the owner of the property in question but they entered into a development agreement with the opposite party No.1 and as such opposite party is bound to construct the multistoried building over the said property and they have no liability regarding the construction of multistoried building. It is also alleged by them that complainant possesses his flat in question and as per request of the complainant extra work was done in that flat, but complainant intentionally in order to gain wrongfully suppressed the said fact. Moreover, complainant did not pay any farthing for installation of transformer. They also alleged that there was intentional laches and negligence on the part of the complainant regarding payment of balance consideration money as per schedule as mentioned in the agreement for sale. Finally, they have prayed for dismissal of the case with cost.
Upon the above pleadings following points have been framed for determination.
- Whether the complainant is a consumer of the opposite parties?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether the flat in question have completed by the opposite parties and made the same in habitable condition?
- Whether the complainant has failed to pay the installments according to the terms and conditions of the agreement for sale?
- Whether there is any negligence on the part of the opposite parties ?
- Whether the opposite parties carried on unfair trade practice/rendered any deficiency in service toward the complainant?
- Whether the complainant has proved his case against the opposite parties as alleged and whether the opposite parties are liable to pay compensation etc. if any, to the complainant?
DECISION WITH REASONS
Point No.1
From the materials on record it is transpired that the complainant is a “Consumer” as provided by the spirit of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. As the complainant paid advance money to the opposite parties for purchase of a flat in question and thus, the complainant is none but purely a consumer to the opposite parties and opposite parties admitted about the execution of agreement for sale in respect of flat in question.
Point No.2
Complainant and opposite party No.1 are resident/carrying on business or having their District office within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try this case.
Point No.3, 4 , 5 & 6
Point No.3, 4 & 5 are interlinked in their formation and as such those three points are taken up conjointly for the sake of convenience and brevity of discussion.
First of all, it may be pointed out that in support of his case the complainant submitted affidavit in chief. Whereas opposite party No.2 & 3 have also submitted affidavit in chief jointly. Opposite party No.1 did not file any affidavit in chief. That apart materials on record shows that on behalf of complainant brief notes of argument and on behalf of opposite party No. 2 & 3 brief note of argument have been filed. It is to be highlighted that no brief note of argument whatsoever has been filed on behalf of the opposite party No.1.
Going through carefully the pleadings of both the parties including the affidavit in chief of the complainant and the affidavit in chief on behalf of the opposite party No.2 & 3 it can be said that it is an undisputed fact that there has been an execution of agreement for sale and from the copy of agreement for sale it transpires that opposite party No.2, Bijoy Kumar Show has signed as constituted attorney on behalf of the owners and one Mr. K.R. Ghosh signed as Director of M/s.Edigicom Vanijya Pvt. Ltd./Developer and the complainant signed as purchaser. In the contents of the copy of the said agreement for sale it transpires that the total consideration of the flat in question had been fixed at Rs.11,41,511/- (Rupees eleven lakhs forty one thousand and five hundred eleven) and out of which complainant has paid as sum of Rs.2,00,000/- (Rupees two lakhs) as booking/advance money. In the terms and conditions appearing in the said copy of agreement for sale it appears that after such booking/advance money what would be the next mode of payments.
Now, complainant alleged that he paid in addition to the aforementioned Rs.2,00,000/- (Rupees two lakhs) towards booking/advance money, a sum of Rs.30,000/- (Thirty thousand) by a cheque as further advance and he handed over the said cheque to one Kaustab Ranjan Ghosh being the Director of M/s.Edigicom Vanijya Pvt. Ltd./Developer. But facts remains that neither any photocopy of the said cheque nor any receipt towards tendering of such cheque of Rs.30,000/-(Rupees thirty thousand) nor any bank statements of any pass book of the complainant’s bank wherefrom it will be evident that Rs.30,000/-(Rupees thirty thousand) has been debited from the concerned account of complainant for credit in favour of the said Kaustav Ranjan Ghosh. Not only that complainant further alleged that he handed over Rs.20,000/- (Rupees twenty thousand) to the concerned deputed persons of the opposite parties i.e. the Supervisor of the opposite parties for the purpose of completion of some works mentioned in details in the complaint of the complainant. But complainant did not mention the name of alleged so called deputed persons/Supervisor of the opposite parties nor complainant filed any money receipt to that effect to establish his claim.
From the materials on record it has been clear and undisputed that complainant tendered Rs.2,00,000/-(Rupees two lakhs) only towards booking/advance money in connection with the agreement for sale for the purpose of purchasing flat in question by the complainant. We are of the clear view that the allegations of the complainant of tendering Rs.30,000/-(Rupees thirty thousand) by a cheque and payment of Rs.20,000/-(Rupees twenty thousand) alleged to have been tendered by the complainant has not at all been proved. So, it is proved that complainant has tendered Rs.2,00,000/-(Rupees two lakhs) towards booking/advance money in respect of the flat in question.
Now, no where it is pertinent to mention that neither in the written version of opposite party No.1 nor in the written version of opposite parties No.2 & 3 including their (opposite parties No.2& 3) affidavit in chief it is evident that they have completed the construction of the flat in question fully. So, further discussion is not at all needed to come to the conclusion that within bound time opposite parties have not completed the construction of the flat in question. So, there is clear negligence and at the same time deficiency in service on the part of the opposite parties in relating to the subject matter of this case.
It is pertinent to note that opposite party No.1 in his written version has stated that on 27.2.2017 opposite party No.1 issued final reminder upon complainant for balance payment for registration of flat under registered post and which has been received by the complainant on 28.2.2017 and as per said letter opposite party No.1 cancelled the agreement for sale as complainant failed to pay the balance amount within seven days from the date of receiving of the said reminder. Surprising enough opposite party No.1 further states in his written version that he is ready and hand over flat in question in favour of the complainant subject to payment of due and balance amount by the complainant as per agreement for sale. It seems that opposite party No.1 is blowing hot and cold at the same time and such tendency of the opposite party No.1 clearly indicates that his defence is not firm at all.
Per contra, if can be said that on the part of complainant there is no further payment after the payment of Rs.2,00,000/- (Rupees two lakhs)towards booking/advance money in respect of the flat in question.
Be it mentioned that both the parties in their defence have made out so many allegations against each other but, those seems to be absolutely baseless and to be mind of this Forum those do not bear any merit.
Eliminating all the allegations made by the parties against each other, if we try to find out the real controversy, then only point is palpably appearing that complainant has paid Rs.2,00,000/-(Rupees two lakhs) towards booking/advance money.
From the brief note of arguments on behalf of the complainant as well as on behalf of the opposite parties No.2 & 3 including other materials on record we are of the view that when complainant himself in his prayer of complaint has categorically prayed for return back the amount of booking/advance money along with other reliefs, we are of the view that it will be wise and prudent to pass necessary order for returning back the booking/advance money of the complainant along with other reliefs. Accordingly this Forum is answering the points No.3, 4 ,5 & 6 in positive.
Point No.7.
In view of the above discussion made hereinabove, we have no hesitation to come to a conclusion that complainant has proved that he tendered Rs.2,00,000/-(Rupees two lakhs) towards agreement for sale in respect of flat in question in the form of booking/advance money to the opposite parties.
Hence, it is,
Ordered
that the complainant case being No.105/2017 be and the same is allowed on contest against the opposite party No.2 & 3 and exparte against the opposite party No.1.
Opposite parties No.1, 2 & 3 are hereby directed to pay Rs.2,00,000/- (Rupees two lakhs) to the complainant along with interest @8% p.a. with effect from 30.03.2015 till the date of realisation.
Opposite parties are directed to pay compensation of Rs.20,000/- (Rupees twenty thousand) towards mental agony and harassment and to pay litigation cost Rs.5000/-(Rupees five thousand) to the complainant.
Opposite party No.1, 2 & 3 are hereby directed to comply the directions within 45 days from the date of this order, failing which the complainant is at liberty to institute execution case whatsoever.
