The fact of the case of the complainant in a nutshell is that the complainant intends to purchase a flat situated at the 4th floor, Block-C, Unit-1 of a newly constructed multi storied building at 82, S.C.Chatterjee Street, at Holding no.82 under Konnagar Municipality and accordingly there was an agreement between petitioner/purchaser and the Developer i.e. Sri Nilotpal Ghosh on 1.4.2009. As per agreement the price of the flat was settled at Rs.7,20,000/-. Out of the said sum , complainant paid Rs.1,00,000/- to the oP /Developer on different dates. At the time of payment of advance, Opposite party no.1 assured the complainant that within 2 years he would hand over the possession of the flat to the complainant and would execute and register the sale deed in favour of the complainant. The Op did not complete the construction within two years and assured the complainant that he would complete the construction work within March, 2013. On the basis of the assurance by the Op to the complainant , the complainant applied before Nabagram Peoples Cooperative Bank Ltd for sanction of a loan of Rs.6,00,000/- and it was approved but subsequently the loan was not taken by the complainant due to non completion of the said flat. On 1.06.2014 the oP sent a certificate of completion of the said flat to the complainant. The complainant
after receiving the completion certificate applied before DHFL for a housing loan and it was approved and the same was informed to the OP through a letter dated 18.9.2014. On 14.10.2014 when the Technical Expert of DHFL inspected/visited the said flat allotted to the complainant , they found that other person is occupying the flat and they requested the complainant that after vacating the third person from the flat, they would sanction loan. On 15.10.2014 the complainant sent a letter to the OP and protested against the unauthorized occupation of the flat allotted to him by the oP. The OP vided its letter dated 19.10.2014 undertook to the complainant that on or before 24.20/.2014 he would vacate the said flat and hand over the possession to the complainant but in vain. Hence, this complaint.
OP no.1 has contested the case by filing Written version denying inter alia all material allegations . The positive case of the Op no.1 is that he agreed to sale agreement at low price, but after giving a token earnest money the petitioner never gave any money to the oP and taking time in different plea and requested the oP to help him for getting Bank loan and relay upon the relationship the oP in different time help the complainant for getting the bank loan and on the request of the complainant, the OP gave many declaration for the sanction of loan, as the
complainant has no incapability to pay the rest consideration money to the oP and the due to relationship the op tried his level best to help the complainant to get loan from the bank, but the complainant unable to get loan from the bank and unable to pay the rest consideration money and then the oP on 12.12.2013 verbally told the complainant to execute fresh agreement, if the complainant agreed to take the flat in question, as the complainant fail to terms and conditions of the sale agreement and after two days, the complainant informed the oP that he agreed to execute fresh agreement and discussion both the party decided to increase the rate of the flat in question and the rate was fix of Rs.1000/- per sq.ft and the oP prepared fresh agreement, but the taking time for the execution of the fresh agreement and thereafter filed this false case to deprive the OP. The Op no.1 prays for dismissal of the complaint.
Op no.2 , 3 ,4 and 5 received the notice but did not appear and contest the case. So the case of Op no.2,3,4 and 5 was heard exparte.
Complainant filed (1) photo copy of agreement for sale (2) photo copy of Power of attorney dated 1.7.09 (3) Photocopy of 4 cash memo (4) Photo copy of series of letter of communication (5) Photo copy of postal receipts etc.
complainant also filed Evidence in chief and BNA. OP filed Written version, Evidence in chief and Written Notes of argument.
POINTS FOR DECISION :
- Whether the complainant is a consumer ?
- Whether there is any deficiency in service on the part of the oP ?
- Whether the complainant/petitioner is entitled to get relief as prayed for ?
DECISION WITH REASONS :
All the points are taken together for easiness of discussion. From the Written Notes of argument filed by the OP it appears that OP admitted the allegation of complainant but raised allegation that the flat in question is ready but the petitioner is not interested to pay the rest consideration money and oP no.1 is suffering from want of money for non payment of money, Op no.1 took loan from the market in high rate of interest. It is also argued that agreement was made with at low price. The complainant ‘s argument shows there was no activeness of complainant for taking steps for full payment. On 18.9.2014 the complainant informed the oP no.1 regarding home loan . But there is no iota of evidence to show that the complainant was ever ready to make final payment or that he
approached to the oP asking him to make arrangement for taking consideration money by any means. Complainant only made acquisition of the OP. The material
before us palpably shows the conduct of the complainant is not at all praiseworthy . The agreement was done in the year 2009. This case has been filed on 20.5.2015. During this course of time the complainant did not show any promptitude to take the flat by making full payment. To that effect no evidence before us that on the date of filing of this case i.e. on 20.5.2015 he was ready and willing to make full payment and take registration of the property. Accordingly, considering the material before us , we are of opinion that complainant fails to prove his allegation against the Op and there is no deficiency of service on the part of the oP. Accordingly it is –
Ordered
That the C.C. no. 88 of 2015 is allowed in part against Op no.1 and exparte against Op no.2,3,4 and 5. The OP no.1 shall refund the money i.e. Rs.1,00,000/- which has been taken from the complainant and other prayer is rejected. The oP no.1 is directed to issue an A/c payee cheque in favour of the complainant for a sum of Rs.1,00,000/- within 30 days from the date of this order i.d. complainant is at liberty to file execution case for executing the order of this Forum.
Let a copy of this order be made over to the parties free of cost.
