DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _505_ OF ___2013_
DATE OF FILING : 17.12.2013 DATE OF PASSING JUDGEMENT: 27/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Jhunu Prasad
COMPLAINANT : Subhas Saha, s/o Sri Lalu Saha of 9, Kabi Sukanta Sarani, Kolkata -85.
-VERSUS -
O.P/O.Ps : Sri Manab Paul, s/o Sri Narayan Chandra Paul of 10, New Bikramgrah, P.S. Jadavpur, Kolkata – 32 , carrying on business under the name and style of M/s Sree Balaji from 12/4K/6, Prince Golam Hossain Shah Road, Kol-32.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that he has booked a flat to the tune of Rs.3,30,000/- only and extra charges to the tune of Rs.28,497/- at Panthaniwas where O.P intended to construct a multistoried building in the name and style of Panthaniwas.. On 14th June, 2011 the O.P requested the complainant to remit a sum of Rs.40,000/- along with service tax of 2.575% on Rs.40,000/- in total a sum of Rs.41,030/- only for entering into the agreement for sale , which was paid by cheque and an agreement for sale was executed between the parties for a flat no.3C in Block-7 . It has claimed that all post dated cheque of remaining amount have been encashed by the O.P from time to time. Thus entire consideration has already been paid by the complainant but the O.P neglected to hand over possession of the said flat inspite of completion of the project . It has also claimed that as per agreement the O.P has to hand over vacant and peaceful possession of the said flat in favour of the complainant since the complainant has made over entire consideration money for the same. But in derogation to the terms of the agreement the O.P not only refused to hand over the peaceful possession of the said flat in favour of the complainant even after receipt of entire consideration money , but also cancelled the agreement for sale and ultimately refunded a cheque for a sum of Rs.1,75,000/- after deducting 50% of the total amount towards the cancellation charge. Complainant requested the O.P to execute and register the deed of conveyance in favour of the complainant. But the O.P vide letter dated 26.8.2013 has given a baseless reply and contended that agreement for sale stood cancelled and O.P is free to deal with the said flat without any hindrance thereof and also informed that amount of Rs.1,75,000/- is holding as a trustee of the complainant. The letter dated 26.8.2013 is annexed herewith. It has further stated that O.P threatened to transfer the said flat in favour of third party in violation of the part of contract from the O.P, for which, complainant is suffering mental agony and claims compensation to the tune of Rs.5000/-. Accordingly, complainant has claimed Rs.5 lacs against the O.P along with interest @12% p.a from the date of filing the case towards compensation and direction be given to deliver the flat to the O.P and also restrained the respondent from selling, transferring , letting out , creating any third party interest in respect of the said flat , as well as cost of the case.
The O.P is contesting the case by filing written version and has claimed that this case is not maintainable and complainant is not a consumer within the meaning of C.P Act and no right to initiate the instant proceedings. The positive case of the O.P after denying all the allegations of the complainant that agreement was rightly cancelled by the O.P after the agreed deduction of balance of the money paid by the complainant and remaining amount was duly tendered back to the complainant. It has further claimed that complainant has repeatedly engaged in violent and abusive behavior against the O.P and on July 18,2013 complainant threatened the O.Ps representative with dire consequence and abusing with filthy language, for which the O.P reserved the right to claim in appropriate legal proceedings. It has claimed that complainant is a man of violent and intemperate character. Thus he is not fit to be conveyed a flat in the subject residential complex and that is why the O.P has lodged a complaint with the local P.S in respect of the said criminal act of the complainant. O.P has claimed that he is not bound to induct any person of a character such as the complainant as complainant engaged in criminal and antisocial behavior. Accordingly agreement was cancelled and agreed balance consideration were tendered to the complainant vide letter dated 24.7.2013 ,which was issued within six days from the aforesaid incident. The O.P stated that complainant made false allegation and prays for dismissal of the case.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
At the very outset it must be stated that parties are binding by the agreement for sale and if there is any clause in the agreement for sale that intending purchasers behave criminally or like anything ,the agreement will be cancelled then definitely acts of the O.P is totally correct. But in page no.19 it appears in point no.5,6 and 6(i) that no such averment is mentioned there regarding the character and behavior of the complainant and what was alleged by the O.P has not yet been proved.
Here, in the instant case O.P has collected the earnest money along with service tax and other charges and thereafter collected post dated cheque which were encashed. So, question of non-payment in time i.e within 90 days from the schedule date cannot be the consideration in terms of the agreement. It has specifically mentioned in point no.6(i) that “This is also agreed by and between the parties that in the above mentioned case developer is allowing the purchaser 90 days period from the schedule date in accordance with the provisions of payment schedule mentioned hereinabove, only by charging fixed compensation of Rs.100/- per day. Beyond the above referred period of 90 days the developer at his sold discretion entitled to cancel/terminate the agreement. In that case developer after applying the penal provision mentioned hereinabove will refund the balance amount, if any, to the purchaser with a notice through the registered post with A.D. This will be treated as a mode of cancellation of the instant agreement and the purchaser hereby consented to the same. However, the service tax amount paid by the purchaser is not refundable ,but no-where in clause no.5,6 and 6(i) that if anything created nuisance or criminal activity by the complainant/intending purchaser, then the agreement will be cancelled. So, admittedly O.P has not mentioned the reason for cancellation for non-payment particularly when he has already collected entire amounts for flat no.3C , Block-7 having super built up area of approximately 300 sq.ft in the second floor along with other charges including the service tax. So, cancellation of the agreement for sale is not accepted in the Court of Law as it is beyond the terms of the agreement. Thus in the eye of Law agreement for sale is still in force. In Point no.5 at page 19 of the agreement for sale where it is specifically mentioned that This is also to be mentioned that if the developer fails to hand over the respective flats on the fixed date mentioned, then he shall be liable for paying compensation @100/- per day till the date of actual possession from the fixed date of delivery of possession.
Thus we find that flat no.3C at Block-7 at second floor has not yet been delivered due to illegal and arbitrary cancellation of the agreement by the developer/O.P which is beyond the terms and conditions of the agreement for sale ,that is why complainant is a consumer within the meaning of the C.P Act, 1986 and he is entitled to get proper service from the O.P/developer and O.P/developer for wrongful gain cancelled the agreement for sale with a flimsy allegation which has no leg to stand upon until and unless complainant is found guilty of the said alleged nuisance claimed by the O.P which is a ground of cancellation. Mere informing the local P.S is not suffice to say that complainant did nuisance and criminal activity. If that be so, definitely police investigated and submitted charge sheet against the complainant but no charge sheet or order of conviction is filed against the complainant. Moreover, all these things is beyond the scope of the agreement for sale. It has mentioned here in point no.16 at page 20 of the agreement that for delivery of respective flats by the developer to the purchaser a fixed period of 24 months was allowed but another six months shall be allowed by the purchaser to the developer over and above the above-mentioned 24 months ,for which developer shall not have to pay any penalty and/or damages and the penalty and damages shall be payable after 30 months on and from the first day of April 2011 by the developer to the purchaser. Thus, we find that on or before 1st April 2011 developer did not deliver the said flat. So, point no.16 of the agreement is clearly applicable against the developer/O.P. But unfortunately and very interestingly O.P/developer wrongfully created a concocted story against the complainant and cancelled the agreement for sale after accepting entire consideration money along with other charges as claimed including service tax and refunded some amounts. This is really unfortunate and this type of developer/O.P should be given caution by the Sanctioned Plan Authority i.e Municipal Corporation Office ,wherefrom sanctioned plan wqas given ,for which one copy will be sent to the Municipal Corporation of Bolpur under District Bibhum under P.S elambazar, otherwise the O.P will act this type of unfairness against many other consumers ,if he failed to deliver the possession of the said flat within 30 days from the date of this order.
With that observation we find that O.P acted deficiency in service as well as unfair trade practice and it should be stopped in light of the observation made in above.
Hence,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
The O.P is directed to deliver the flat no.3C Block-7 in second floor , Panthaniwas situated at plot no. 1764 under Mouza-Ramnagar, J.L no.130 , LR Khatian no.907 , Bolpur, District Birbhum positively within 30 days from the date of this order in complete and in habitable condition ,failing which complainant is entitled to get compensation to the tune of Rs.3 lacs towards the compensation and if the peaceful possession to the satisfaction of the complainant is delivered, then O.P need not pay any amount of compensation and in that event cost of the proceedings has to be paid i.e Rs.10,000/- to the complainant by the O.P within 30 days from the date of this order.
It should be mentioned here that if the O.P failed to deliver the peaceful vacant possession of the flat within the stipulated period of 30 days, then compensation amount will come into force Rs.3 lacs and if possession is delivered, then only the cost amount is to be paid by the O.P, failing which complainant is at liberty to execute the order through this Forum.
The O.P is also directed to hand over completion certificate of the building to the complainant, which is mandatory in the eye of law within two months from the date of this order.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
The O.P is directed to deliver the flat no.3C Block-7 in second floor , Panthaniwas situated at plot no. 1764 under Mouza-Ramnagar, J.L no.130 , LR Khatian no.907 , Bolpur, District Birbhum positively within 30 days from the date of this order in complete and in habitable condition ,failing which complainant is entitled to get compensation to the tune of Rs.3 lacs towards the compensation and if the peaceful possession to the satisfaction of the complainant is delivered, then O.P need not pay any amount of compensation and in that event cost of the proceedings has to be paid i.e Rs.10,000/- to the complainant by the O.P within 30 days from the date of this order.
It should be mentioned here that if the O.P failed to deliver the peaceful vacant possession of the flat within the stipulated period of 30 days, then compensation amount will come into force Rs.3 lacs and if possession is delivered, then only the cost amount is to be paid by the O.P, failing which complainant is at liberty to execute the order through this Forum.
The O.P is also directed to hand over completion certificate of the building to the complainant, which is mandatory in the eye of law within two months from the date of this order.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member President
