West Bengal

Paschim Midnapore

CC/15/2017

Mrs. Sujata Mandal - Complainant(s)

Versus

Sri Malay Majhi - Opp.Party(s)

13 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

Sagarika Sarkar, Member. 

and 

Pulak Kumar Singha, Member.

 

Complaint Case No.15/2017

 

 Mrs. Sujata Mandal, wife of Joseph Surajit Hansda, residing  at C/o Asok Kumar Mandal, resident of L/62-B, Unit no.13, New Settlement, P.O. Kharagpur, P.S.

     Kharagpur (Town),  District - Paschim Medinipur, PIN-721301...Complainant.

                                                                              Vs.

1. Sri Malay Majhi, S/o Late Madhusudan Majhi, Saratpally, P.O. Medinipur, P.S. Kotwali, District Paschim Medinipur, PIN-721101,
2. Siddhant Real Estate, Shantinagar, Burnpur, P.O. Burnpur, P.S. Hirapur, District Burdwan, Proprieted by Chayan Siddhanta, PIN-713325,
3. Sri Chayan Siddhanta, S/o Sri Ram Ranjan Siddhanta, resident of Shantinagar, Burnpur, P.O. Burnpur, P.S. Hirapur, District Burdwan, PIN-713325....……….….Opp. Parties.

                                                    

              For the Complainant: Mr.  Surojit Dutta, Advocate.

            For the O.P.               : Mr. Dilip Kumar Bhattacharya, Advocate.

 

Decided on: - 13/07/2017

                               

ORDER

                          Bibekananda Pramanik, President – This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Mrs. Sujata Mondal alleging deficiency in service against Sri Malay Majhi and two others.

Contd…………..P/2

 

 

( 2 )

Facts of the case, in brief, are that the complainant is a permanent resident within the jurisdiction of this Forum.  The O.P. no.1 is the owner of the land in question, as described in paragraph 2 of the petition of complaint and she entered into an agreement with the O.P. nos. 2 & 3, being  developers of the said land  on 06/07/2015 for purchasing a flat in a G+4 multi storied building named and styled as Shibangi Towers.  At the time of such agreement, the complainant paid Rs.1,50,000/-  to the O.P. nos.2 & 3 and subsequently she also paid a sum of Rs.11,00,000/- to the O.P. nos.2 & 3 after availing  loan from IDBI Bank Ltd., Kharagpur Branch.  Thereafter vide letter dated 17/09/2016, the complainant expressed her desire to cancel the said sale agreement and accordingly she served a notice upon the O.Ps. through her Advocate Sri Surojit Dutta by registered post with A/D and the O.Ps. duly received the said notice.  As per Clause 2 of the agreement for sale dated 06/07/2015, refund shall be made upon cancellation within 120 days of the notice for cancellation and a sum of Rs.25% shall be deducted from the advance money.  It is stated that deduction of 25% from the advance money is illegal, arbitrary and malafide as 25% can never be deducted for cancellation from the advance money.  The agreement dated 06/07/2015 in which the complainant paid a sum of Rs.1,50,000/- is the amount being the sum paid  at the time of concluding the sale agreement and the same should be treated as earnest money and thus  sum of Rs.15,000/- can only be deducted  by the O.Ps and the O.Ps are liable to refund remaining sum of Rs.12,35,000/- to the complainant. Despite receipt of such notice dated 17/09/2016, the O.Ps. have refused to refund  the sum of Rs.12,35,000/- to the complainant.    Such refusal to refund  tantamounts to deficiency in service and hence the complaint, praying for directing the O.Ps. to pay Rs.12,35,000/- to the complainant with interest @ 18% p.a. from the date when the same fell due for payment in terms of the agreement for sale and an award of compensation of Rs.50,000/- and an award of Rs.15,000/- towards litigation cost.

All the opposite parties have contested this case by filling a joint written objection.

 Denying and disputing the case of the complainant, it is the

specific case of the opposite parties that on such agreement for sale dated 06/07/2015, the complainant after knowing all the pros and cons of the agreement, signed thereon.  As per terms and conditions of the such sale agreement as preferred in Clause-7 at page-5, it has been stated that if the purchaser/third party fails or neglects to purchase the said flat, in that case 25% of the total advance money will be forfeited and the purchaser will not put any claim or objection. As per submission for cancellation by the complainant, the O.Ps then

Contd…………..P/3

 

 

                                                    ( 3 )

made contact with the complainant and thereafter O.P. no.2 has already cancelled the booking and refunded a sum of Rs.9,00,000/- vide cheque no.338707 dated 06/03/2017 to the complainant out of the advance money. Since after appearance in this case  the O.Ps are always ready to pay the rest amount of Rs.37,500/-  according to the terms and conditions of the sale agreement  dated 06/07/2015 so there is no latches on the part of the O.Ps and it is therefore claimed that the complaint case is liable to be dismissed.

        To prove her case, the complainant has examined herself as PW-

1 by tendering a written examination-in-chief and during her evidence, few documents were marked as exhibits 1 to 5 respectively. On the other hand, O.P. adduced no evidence.  

Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Is the complainant a consumer of the O.Ps. ?
3. Is there any deficiency in service on the part of the opposite parties ?
4. Is the complainant entitled to get the reliefs, as sought for?

                   

Decision with reasons

For the sake of convenience and brevity, all the above points are

taken up together for consideration.

Maintainability of the case has not been challenged during the

 hearing of this case.  We also find nothing to hold that the present case is not maintainable.

According to the complainant, she entered into an agreement for  sale of a flat in question with the O.P. nos.2 & 3 after paying an advance of Rs.1,50,000/- to the O.P. nos.2 & 3 and subsequently she also paid Rs.11,00,000/- to the O.Ps. after availing loan from IDBI Bank.  So the complainant is definitely a consumer of the O.Ps.

                    The present petition of complaint has been filed with a prayer for directing the O.Ps to pay the sum of Rs.12,35,000/- to the complainant with interest and for other reliefs e.g. compensation and litigation cost.  It is the case of the complainant that after such agreement of sale dated 06/07/2015, she decided to cancel the said sale agreement and therefore she sent a notice dated 17/09/2016 through her advocate to the O.Ps thereby informing them that she wanted to cancel the said sale agreement.  According to her, she paid a total sum of Rs.12,50,000/-  to the O.P. nos.2 & 3 towards part payment of sale price of the flat and in view of the settled principal of law,  the O.Ps cannot deduct more than 10% from the advance money of Rs.1,50,000/- paid at the time of concluding of sale.  According to the complainant the said sum of Rs.1,50,000/- being the sum paid at the time

Contd…………..P/4

 

 

                                                    ( 4 )

 of concluding the sale agreement should be treated as earnest money and thus a sum of Rs.15,000/- only can be deducted by the O.Ps and they are therefore liable to refund the balance amount of Rs.12,35,000/- to the complainant.  As against this, it is the case of the O.Ps that after their appearance in this case, they have already refunded Rs.9,00,000/- to the complainant by a cheque bearing no.338707 dated 06/07/2017.  At the time of hearing of argument, Ld. Lawyer for the complainant admitted that the complainant has received the said amount of Rs.9,00,000/- so deposited by the O.Ps  in her account.  Further according to the O.Ps that as per Clause-7 of the sale agreement if the proposed purchaser fails or neglects to purchase the flat,  in that case 25% of the total advance money will be forfeited and therefore the complainant is only entitled to get refund of Rs.37,500/- according to the terms and conditions of the sale agreement.

Considering the respective case of the parties, as made out in their

petition of complaint and written version respectively, we find that admittedly, the complainant entered into an agreement for sale of a flat with the O.P. nos. 2 & 3 vide agreement of sale dated 06/07/2015.  Copy of the said agreement for sale dated 06/07/2015 has been marked as exhibit 1 in this case.  Although in her petition of complaint, the complainant has stated that at the time of such agreement for sale, she paid Rs.1,50,000/- as advance but from exhibit 1, we find that at the time of such agreement, the complainant has paid an advance of Rs.2,00,000/- to the O.Ps.  Clause-7 of the said agreement for sale  (exhibit 1) discloses that if the third party fails or neglects to purchase the said flat, in that case 25% of the total advance money will be forfeited by the second party  and for which the third party will not put any claim or objection.  In their written version, the O.Ps have placed reliance upon clause-7 of agreement for sale (exhibit-1).  Since it appears from  exhibit-1 that at the time of such agreement for sale,  the complainant paid Rs.2,00,000/- to the O.Ps. and since admittedly the complainant now wants to cancel the said agreement for sale, so in view of clause 7 of the agreement for sale (exhibit-1) the O.Ps are entitled to forfeit 25% of the advance money of Rs.2,00,000/- i.e. a sum of Rs.50,000/- towards 25% of the advance money of Rs.2,00,000/-.  Fact remains admitted that after such agreement of sale, the complainant obtained loan from IDBI Bank and paid a further sum of Rs.11,00,000/- to the complainant.  So on mathematical calculation, we find that the complainant has paid Rs.13,00,000/- to the O.Ps.  Facts also remains admitted that after filing of this case the O.Ps has refunded Rs.9,00,000/- to the complainant.  So after deduction of forfeiture amount of Rs.50,000/-, the complainant is entitled to get refund of Rs.3,50,000/- from the O.Ps.  According to the complainant she expressed her desire by sending a notice dated 17/09/2016 for cancellation of sale agreement but O.Ps did not

Contd…………..P/5

 

 

                                                    ( 5 )

 refund the balance amount to her.  Admittedly, the O.Ps have only paid Rs.9,00,000/- after filing of this case but they have not paid the balance amount after deduction  of forfeiture amount, as stated above.  Therefore the O.Ps are guilty of deficiency in service and the complainant is therefore entitled to get refund of balance amount of Rs.3,50,000/- along with interest, an award of compensation and cost.

                 All the points are accordingly decided in favour of the complainant.

                 In the result, the complaint case is allowed in part.

                                         Hence, it is,

                                                Ordered,

                             that the complaint case no.15/2017  is allowed in part on contest with cost against the O.Ps.  The O.Ps are directed to refund of Rs.3,50,000/- jointly and severally to the complainant alongwith interest @8% p.a. from the date of filing of this case.  O.Ps are further directed to pay jointly and severally a sum of Rs.5,000/- as compensation and Rs.3,000 as litigation cost to the complainant. 

             All such payment must be made within a month from this date of order.

             Let plain copy of this order be given to the parties free of cost.

 

Dictated and Corrected by me

       

               President                     Member                       Member                          President

                                                                                                                          District Forum

                                                                                                                       Paschim Medinipur