Dt. of filing - 08/03/2017
Dt. of Judgement – 15/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Smt Sujata Goswami under Section 12 of the Consumer Protection Act against the OPs namely Samir Kumar Mukherjee and Smt Kaberi Sengupta alleging deficiency in rendering services on their part.
Case of the Complainant in short is that she entered into an agreement for sale dated 7/3/2011 with OP No.1 the developer and the OP No.2 the owner, for purchase of one self contained flat about 600 sq ft super built up area at first floor described in the schedule of agreement for sale at a total consideration price of Rs.10,06,000/-. Out of the total sum of Rs.10,06,000/-, Complainant has already paid Rs.10,00,000/- and the balance Rs.6,000/- was left to be paid at the time of registration of Deed of Conveyance. OP No.1 received the entire amount of Rs.10,00,000/- in the capacity as developer and as the constituted attorney of OP No.2 the owner. But they neither delivered possession as agreed nor refunded the amount. Complainant has learnt on 9/6/2017 that the Opposite Parties have sold flat in question to an outsider namely Asif Ikbal and the sale deed has also been registered in his name. So the present complaint has been filed by the Complainant for directing OPs to execute and register the Deed of Conveyance in respect of the suit flat in favour of the Complainant and to deliver vacant possession of the said flat or in alternative direct the Opposite Parties jointly and severely to refund the part consideration money amounting to Rs.10,00,000/- paid by the Complainant with interest thereby, to award compensation of Rs.4,00,000/- and litigation cost.
The case has been contested by OP No.2 by filing written version denying the allegation made in the complaint petition contending inter alia that she had no knowledge about the agreement for sale between the Complainant and the OP No.1. The signature has been obtained in the last page of the agreement without being informed to her about actual instrument. So she has no liability or responsibility towards the Complainant. OP No.1 has also by a declaration dated 5/4/2017 has declared that OP No.2 has no liability towards the agreement executed with the Complainant and the OP No.1 was liable. So OP No.2 has prayed for dismissal of the case against her.
On perusal of record it appears that no written version has been filed by OP No.1 but after an amendment was allowed on the prayer of the Complainant, OP No.1 entered appearance and the evidence was filed by him wherefrom it appears that he has denied allegation and has stated that an amount of Rs.3,00,000/- has been returned to the Complainant . He has also denied of making any payment of Rs.5,00,000/- by the Complainant on the date of execution of the agreement for sale.
With the petition of complaint, documents such as legal notice sent by the Complainant through her Ld. Advocate, copy of agreement for sale dated 7/3/2011 and five money receipts showing the payment of amount by the Complainant has been annexed. During course of evidence, evidence has been adduced by the parties by filing affidavit-in-chief followed by cross examination in the form of filing questionnaire and reply thereto.
Written notes of argument has been filed by the Complainant and also by OP No.1 and OP No.2 respectively.
So the following points require determination:
- Whether there has been deficiency in rendering services on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for discussion for the sake of brevity and convenience and also in order to avoid repetition. From the agreement for sale filed in this case, it is apparent that the Opposite Parties entered into an agreement for sale on 7/11/2011 in respect of sale of the flat as mentioned in the schedule ‘B’ of the agreement, at a total consideration price of Rs.10,06,000/-
It is apparent from the agreement as well as complaint petition that OP No.1 entered into said agreement with the Complainant as the constituted attorney of the owner OP No.2 and the allocation of the flat in question was from the developer’s allocation. It is admitted fact that the said flat has not been handed over to the Complainant. It is admitted case of the Complainant herself that the said flat has already been sold to one stranger purchaser namely Asif Ikbal and the Deed of Conveyance has already been executed in his favour. So the relief as sought for by the Complainant directing the Opposite Parties for execution of deed and to handover the possession cannot be allowed. Moreover, the said Asif Ikbal has not been made a party in this case. So there remains for consideration whether the Complainant is entitled to the refund of amount as claimed by him.
On perusal of the agreement it appears that at last page which deals with memo of consideration, there is clear acknowledgement ofreceiving Rs.5,00,000/- by cash on 7/3/2011 i.e. very date of the execution of agreement and also receiving of Rs.95,000/- by cheque dated 8/3/2011. Said memo of consideration bears signature of OP No.1 acknowledging the receipt of the amount as mentioned therein. Complainant has also filed five money receipt showing the payment of Rs.55,000/- on 28/6/2011, Rs.50,000/- on 28/7/2011, Rs.50,000/- on 26/8/2011, Rs.50,000/- on 27/10/2011 and Rs.40,000 on 24/11/2011. All these receipts have been issued by the OP No.1. So on consideration of memo of consideration in the agreement for sale and the five money receipts as referred to above, it is clear that an amount of Rs.8,40,000/- has been paid by the Complainant. Complainant even though has claimed that he paid Rs.10,00,000/- but the document reveals payment of Rs.8,40,000/- only.
So far as the claim of OP No.1 that he paid Rs.3,00,000/- back to the Complainant, he has not filed any document in support of his said claim. So in the absence of any document said claim of refund, cannot be accepted.
It may be pertinent to point out that a declaration has been filed by the OP No.2 the owner in this case, in support of her claim that OP No.1 received the amount from the Complainant as well as subsequently sold the same flat to the another purchaser. In the declaration OP No.1 has stated that he was solely responsible. So OP No.1 who accepted the entire amount towards part payment of consideration price, is liable to refund the same along with interest in the form of compensation.
These points are answered accordingly.
Hence,
Ordered
CC/137/2017 is allowed on contest. OP No.1 is hereby directed to refund the amount of Rs.8,40,000/- along with intereston the said amount @ 10% p.a from the last payment i.e. since November, 2011to till the date of this order within two months from this date. OP Nos.1 & 2 are directed to pay Rs.10,000/- towards litigation cost in default the entire amount shall carry interest @ 10% p.a till realization.
