Orissa

Cuttak

CC/17/2017

Javed Ali Ansari - Complainant(s)

Versus

Sri Prabhat Kumar Nanda,Chairman Cum Managing Director,Raghupati Estate & Holding Pvt Ltd - Opp.Party(s)

B M Mohapatra

31 May 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

                                                C.C.No.17/2017

 

1. Javed Ali Ansari,

       S/O: Amjad Ali.

 

2. Arfa Naaz,

      W/O:Javed Ali Ansari.

 

      Both are presently resident of

      At:M-4,Flat No.301,SBI Colony,

      Deba Ashram,Kesura,P.O:Laxmi Sagar,

      Bhubaneswar-2,Dist:Khurda,Odisha.                             ... Complainants.

 

          Vrs.                        

 

1. RAGHUPATI ESTATE & HOLDING PVT. LTD.

Office;At:Plot No.612,Surya Nagar,Link Road,

P.O:Arunodaya Market,P.S:Madhupatna,

                 Town/Dist: Cuttack,Pin-753012,Odisha

Represented by its Chairman-cum-Managing Director

Sri Prabhat Kumar Nanda.

 

2.  Branch Manager,

UCO Bank,Nuapada Branch,

          PO- Madhupatana,Town/Dist:Cuttack,Pin-753010                           ...Opp. Parties.

 

Present:            Sri Debasish Nayak,President.

                             Sri Sibananda Mohanty,Member.

 

Date of filing:    07.02.2017

Date of Order:  31.05.2023

 

For the complainant:            Mr. B.M.Mohapatra,Adv. & Associates.

For the O.P no.1.         :         Mr. B.N.Mohapatra,Adv. & Associates.

For the O.P no.2:                    Mr. B.B.Swain,Adv. & Associates.

 

Sri Debasish Nayak,President.

                                            

Case of the complainants as made out from the complaint petition in short is that with intent to purchase the flat they had contacted the O.P Company who was constructing flats as per “Pristine Park” project near Sainda,Cuttack.  As per the rate-sheet of the O.P Company, the intended flat which was to be purchased by the complainants with amenities charges, parking space, electricity, registration etc would be of Rs.18,59,400/-.  As per the terms and conditions, the complainants were supposed to pay the O.P no.1 an amount of 15% on booking, 20% on allotment,15% on completion of foundation, 15% on roof casting,15% on brick work, 15% on plastering flooring & P.H.E fitting and finally a sum of 5% on handover the possession.  The complainants while booking the flat of the said “Pristine Park” project of the O.Ps had paid a sum of Rs.1,00,000/- on 3.9.2012 and on 7.9.2012,they had further paid a sum of Rs.2,71,880/-.  The agreement relating to confirmation of booking of the “Pristine Park” project was executed accordingly on 29.9.12 in between the O.P company and the complainants.  The O.P no.1 had issued a letter of allotment to the complainants vide letter No.012/REH/PP/04/506 dt.29.9.12 where they had reflected to have allotted flat No.408 measuring an area of 1033 Sft. approximately with the fixtures and fittings therein in Bloack-II at the 4^thFloor of the “Pristine Park” project situated at/within the Khata No.261,476,362,330,113 & 426, in Plot No.2043, 2064,2066,2067,2068,2070 and 2071, Area-A0.50 dec, Ac.019 dec., Ac.0.06 dec., Ac.0.06 dec, Ac.0.06 dec. and Ac.0.10 dec respectively at Mouza-Sainda under Cuttack Sadar P.S in the District of Cuttack.  The complainants had applied for credit facility/finance from O.P no.2 bank which was sanctioned under UCO Bank home loan amounting to Rs.12,50,000/- vide their letter No./Customer Id No.81996/2013-2014 dt.19.9.13 wherein the rate of interest was @ 10.2% per annum which was to be repaid in 234 number of monthly instalments @ Rs.12,350/- having a moratorium period of six months.  The complainants after availing the loan amount from O.P no.2 have paid a sum of Rs.11,50,000/- on 18.9.13 with respect to the flat they had intended to purchase.  Accordingly, they had paid in total a sum of Rs.15,21,880/- in three phases to the O.P no.1 out of the cost of the flat of Rs.18,59,400/-.  The O.P no.1 vide their letter No.2014/REH/PP/164 dt.3.9.2014 without completing construction of the flat had intimated the complainants to deliver possession of the flat bearing No.408 in 4^th floor of Block-II at “Pristine Park” project on 4.10.14 asking them to furnish the related documents.  The O.P no.1 had also intimated the complainants through letter bearing no.2016/REH/PP/47 dt.17.2.2016 that they have finished/completed the flat No.408 in 4^th floor of Block-II of their project site at “Pristine Park” for which they had paid a sum of Rs.15,21,880/- and it was requested to them to pay the rest amount of Rs.3,37,520/-.  O.P no.1 by making some false and baseless allegations had intimated through his letter bearing No.REH/2016/PP/153 dt.31.8.16 to the complainants that the price of the flat No.408 in 4^th floor of Block-II at“Pristine Park” project was enhanced to Rs.25,85,500/- and also demanded the balance amount within 7 days.  After getting the said letter, the complainant no.1 had tried to meet O.P no.1 on 19.9.16 after contacting him through his mobile phone, but could not meet him.  Again, through a letter dt.21.11.16 the complainants were intimated about the cancellation of the agreement as executed in between them and the O.P company on 29.9.12.  The O.P no.2, the financier bank also had issued letter dt.24.11.16 to the complainants asking them to sort out the issue within 15 days or else they would proceed in accordance with law since there was a tripartite agreement.  The complainants were therefore compelled to issue legal notice to the O. Ps and ultimately had approached this Commission praying to issue directions to the O.P no.1 for accepting the balance amount of Rs.3,37,520/- from them and to deliver possession of the flat No.408 in the 4^th floor of Block-II at“Pristine Park” project situated at Mouza Sainda in the district of Cuttack.  They have also prayed for interest @ 18% per annum on the amount as deposited by them with effect from 4.10.14 onwards till the total amount is quantified.  They have further prayed for compensation of a sum of Rs.4,50,000/-towards their mental agony and harassment from the O.P no.1, alongwith cost of their litigation and further for any other reliefs as deemed fit and proper.

          In order to establish their case, the complainants have filed copies of several documents to that effect alongwith their complaint petition.

2.       Both the O.Ps have contested this case but have filed their separate written versions.  According to the written version of the O.P no.1, the case of the complainant is not maintainable.  Ofcourse O.P no.1 admits about the booking of the flat by the complainants at Pristine Park project of them at Sainda of Cuttack.  They also admit about the flat allotted in favour of the complainants bearing flat No.408 in 4^th floor of Block-II at“Pristine Park” project situated at Mouza Sainda in the district of Cuttack and about the execution of the agreement in between the O.P no.1 and the complainants on 29.9.12.  The total cost of the flat was of Rs.18,59,400/- out of which the complainants had paid a sum of Rs.15,21,880/- by 19.9.13.  The balance amount as regards to the purchase of the flat was not paid by the complainants even if O.P no.1 had approached them on several occasions for the same.  The complainants were requested to deposit the balance amount and take over the possession of their flat but since because the complainants had remained silent, there was heavy financial loss to O.P no.1 who had invested a total sum of Rs.19,99,428/- for completing the flat.  As per the terms and conditions of the agreement as executed by the complainants with O.P no.1, the purchaser if fails to take over possession of the flat within a period of 45 days, there would be additional charges towards “watch and ward”.  Since because the complainants had violated the terms and conditions of the agreement and had abstained from taking over the possession of the flat, the case as filed by them is not maintainable which according to O.P no.1 is liable to be dismissed with cost.

          Together with the written version, O.P no.1 has filed copies of the payment schedule and the copy of the letter sent to the complainants asking them to take over possession of the flat.

          As per the written version of O.P no.2, the case of the complainants is to be dismissed as the complainants have suppressed material facts.  According to O.P no.2, on 23.9.12, the complainants had approached the O.P no.1 for booking a flat in the “Pristine Park” project situated at Mouza Sainda in the district of Cuttack and accordingly on 29.9.12 the O.P no.1 had issued allotment of flat no.408 at the 4^th floor of Block-II at “Pristine Park” wherein the cost of the flat was of Rs.18,59,400/-.  The complainants had paid a sum of Rs.3,71,880/- at the time of booking and allotment of said flat.  After executing a tripartite agreement, the complainants incurred a loan of Rs.12,50,000/- out of which a sum of Rs.11,50,000/- was disbursed and paid to the Builder (O.P no.1).  Accordingly, a sum of Rs.15,21,880/- was paid out of the total price of the flat of Rs.18,59,400/-.  The Builder (O.P no.1) vide letters dt.10.1.14,3.9.14,17.10.14 & 17.2.16 had informed the complainants asking them to pay the residual amount of Rs.3,37,520/- and to take over possession of the flat but the complainants/borrowers had not responded and accordingly, they had violated the terms and conditions of the agreement with the Developer (O.P no.1).  On 21.11.16, the Developer (O.P no.1) had written to the complainants/borrowers regarding cancellation of the agreement dt.29.9.12 promising the O.P bank to pay the entire amount received in the borrowers’ account.  O.P no.2 accordingly had intimated the borrowers through letter dt.24.11.16 asking to sort out the dispute with O.P no.1 within 15 days but the borrowers through their letter dt.7.12.16 had intimated O.P no.2 that though they were ready to pay the balance amount, the Builder (O.P no.1) is not ready to accept the same.  The further contention of O.P no.2 is that since because the complainants/borrowers were irregular in paying the instalments, their loan account was declared NPA on 31.5.17 and demand notice dt.10.7.17 was issued to the complainants/borrowers to repay the outstanding amount of Rs.11,63,146/-. 

          O.P no.2 alongwith his written version has also filed copies of notice issued to the complainants, a copy of the tripartite agreement and the demand notice as sent to the complainants.

3.Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

          i.          Whether the case of the complainant is maintainable?

          ii.         Whether there was any deficiency in service on the part of the O.Ps and if they had practised any unfair trade ?

          iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.ii.

Out of the three issues, issue no.ii  being the pertinent issue in this case, is taken up  first for consideration here.

After going through all the averments as made by the complainant in his complaint petition, the contents of both the written versions together with all the copies of documents as connected to this case and available in the case record, it is noticed that admittedly, the complainants had booked the flat at “Pristine Park” project whose cost was of Rs.18,59,400/-.  Out of which, they had paid a total of Rs.15,21,880/-.  The complainants availing loan from O.P no.2 in this connection is also not in dispute.  As per copies of letters available, it is noticed that the O.P no.1 had issued letter dt.3.9.14 to the complainants asking them to take over possession of flat no.408 at the 4^th floor of Block-II at “Pristine Park” project of Sainda,Cuttack  on 14.10.14 and thereby certain documents were asked from the complainants in order to complete the registration and other formalities.  The said copy of letter is filed by the complainants alongwith their complaint petition vide Annexure-6.  Quite strangely, while going through the copy of the letter of the O.P no.1 addressed to the complainants vide letter No.2015/REH/PP/083 dt.2.2.15 the complainants were informed by O.P no.1 therein that on 15.2.15(Sunday) they would be apprised regarding the progress of the work of their flat and regarding settlement of accounts which was supposed to be deposited at their corporate office by 5.3.15.  The copy of letter of the O.P no.1 addressed to the complainants dt.17.2.16 vide Annexure-8 reflects that the complainants were asked to pay the balance amount of Rs.3,37,520/- to take over possession.  Again O.P no.1 through his letter dt.31.8.16 vide Annexure-9 had informed the complainants regarding the violation of the terms and conditions for allotment of the flat bearing no.408 at the 4^th floor of Block-II at“ Pristine Park” project at Sainda, Cuttack wherein the rate was revised to be of Rs.2500/- per Sft. and ultimately vide letter dt.21.11.16 the O.P no.1 had cancelled the agreement dt.29.9.12 and thereby had also cancelled the allotment of the complainants flat bearing no.408 at the 4^th floor of Block-II  in the “Pristine Park” project.   While probing minutely into Annexure-6 which is copy of the letter as sent by O.P no.1 to the complainants wherein it is reflected that they were ready to hand over possession of flat no.408 at the 4^th floor of Block-II in the “Pristine Park” project by 4.10.14.  Again, the letter of O.P no.1 addressed to the complainants dt.2.2.15 reflects that the balance amount was to be deposited by the complainants by 5.3.15 where, on 15.2.15 they would be apprising the complainants regarding the progress of work of their flat.  If this be so, it tilts our eye brows that when the O.P company was ready and had sent letter to the complainants to hand over possession of the flat by 4.10.14, it is not understood as to how could the said flat was not completed by 2.2.15 and they had written to the complainants to intimate them as regards to the progress of the work of their booked flat on 15.2.15.  Thus, as it appears, the O.P no.1 was never sticking tohis own commitment as because on the one hand, he had offered to hand over possession of the said flat to the complainants on 4.10.14 mentioning that it was complete and again on the other hand, the said O.P no.1 had written through his letter dt.2.2.15 to the complainants that they would be apprising on 15.2.15 as regards to the progress of the work of their flat.  There is absolutely no final date of completion for the construction work mentioned by the O.P no.1at anywhere in the agreement.  Thus, the O.P no.1appears to be too cunning and had planned and designed the agreement unilaterally, arbitrarily having all the benefits of the agreement in his favour so as to make the intended purchasers cling on to them and dance to his sweet-will.  When the complainants are ready to take over possession who had already paid a huge amount of money by paying a sum of Rs.15,21,880/- out of the total value of the flat of Rs.18,59,400/- and are also prepared to pay the rest of the amount i.e. Rs.3,37,520/-, the O.P no.1 is not ready to accept the same or deliver possession of the said flat to them.  Accordingly, this Commission is of opinion that infact there was deficiency in service on the part of O.P no.1 who had waited to hit them at their back when they were at distress.  The said activities of the O.P no.1 coupled with the copies of letters also signifies the practice of unfair trade by the O.P no.1 here in this case.  Accordingly, this issue goes in favour of the complainants.

Issues no.i& iii.

From the discussions as made above, the case of the complainant is maintainable and the complainant is entitled to the reliefs as claimed by him.  Hence it is so ordered;

 

 

                                              ORDER

Case is decreed on contest against the O.P no.1.  The O.P no.1 is thus directed to allot the flat no.408 at the 4^thfloorof Block-II in “Pristine Park” project at Sainda of Cuttack to the complainants and to receive the balance amount of Rs.3,37,520/- from them within a month hence.  The O.P no.1 is further directed to pay the complainants interest @ 12% per annum to the complainants over the deposited amount of the complainants to the tune of Rs.15,21,880/- effective from 4.10.14 till the total amount of interest is quantified and further to pay a sum of Rs.3,00,000/- to the complainants towards compensation for their mental agony and harassment as caused to them and also to bear their litigation expenses of Rs.50,000/-.    This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 31^st day of May,2023 under the seal and signature of this Commission.          

                                                                                                                      Sri Debasish Nayak

                                                                                                                                 President

         

 

                                                                                                                            Sri Sibananda Mohanty

                                                                                                                                         Member