This is a complaint case u/s 35 of the Consumer Protection Act 2019 filed by the complainant nos.1 and 2 against the O.P. nos. 1 and 2 in a dispute of housing matters.
The case of the complainants as averred is that while looking for purchasing a 2BHK flat in a housing construction, an amount of Rs. 4,00,000/- on 24.02.2019 and Rs. 1,00,000/- on 12.03.2019 were advanced by them to the OP 2 by account payee cheques as booking money and further amount against money receipts. The OP1 and OP2 represented themselves as developers who have an agreement between themselves and the OP1 having assigned OP2 for construction and development of the proposed suit building property. As averred, a sale agreement was executed between the purchasers cum complainants and the OP no. 1 as developer on 13.11.2019 for a 800 Sq.ft 2 BHK flat upon a land at RS khatian no. 246 LR khatian no 1772,1773,1775,1776 and 1777 at Mouza Noapara, JL no 40, Medanmolla, ward no 10, Rajpur Sonarpur municipality, PS: Sonarpur, South 24 parganas against a total consideration money of Rs. 24,00,000/-. But no development agreement between OP1 and OP2 was provided by the OP 1 although it was assured by that OP1. It is the case of the complainants that the said sale agreement exists between complainants and OP1 who promised to render service upon receiving consideration money and OP1 admittedly assigned OP2 for the development and OP2 took liabilities of OP1 and thereby entered into a position of a service provider and as such both the OP1 and OP2 became service providers towards the complainants being consumers. As the flat was not delivered to complainants, they wanted refunds with several requests. The O.Ps. refunded Rs. 3,00,000/- out of the total advanced money of Rs. 5,00,000/- and the refund of the balance Rs. 2,00,000/- which was made by account payee cheque got dishonoured. As per agreement, the flat was to be handed over by 27.02.2020 and registration was to be completed by December 2020. But till date neither flat was handed over nor registration was completed inspite of several reminders from complainants. Hence this complaint case was filed for deficiency in service and for adopting unfair trade practises by the OPs with a prayer for refund of the balance amount of Rs. 2 lakh along with 18% interest and a compensation of Rs. 5 lakh and a litigation cost of Rs. 50,000/- and another sum of Rs. 5 lakh as extra cost to enable the complainants to purchase a new flat.
In support of the complaint petition, the complainants exhibited 2 money receipts for Rs. 4 lakh dated 24.02.2019 and Rs. 1 lakh dated 12.03.2019 by account payee cheques drawn in favour of the O.Ps, bank statement showing debit of Rs. 4 lakh and Rs. 1 lakh, copy of agreement for sale dated 13.11.2019 between the vendors / land owners, the developer / O.P. no. 1 and the complainant nos. 1 and 2, with schedule of suit property as mentioned in first schedule and second schedule specifically with a memo of consideration of Rs. 1 lakh, cheque return memo dated 12.03.2020 for Rs. 2 lakh drawn on the complainant no. 1 by the O.P. no. 2, legal notice dated 17.09.2021 and 01.07.2020 from the complainants and reply of lawyer of O.P. no. 1 dated 25.09.2021.
In his W/V the OP1 denied having entered into any sales agreement with complaints and claimed being only a labour contractor of the suit property stating that the complainant and OP2 conspired to lodge a false case to reduce his reputation.
In his W/V, the O.P. no. 2 denied all allegations as framed by the complainants and stated inter-alia that the O.P. no. 2 is the proprietor of the OP 2 builder company who is the developer of the property being the O.P. 1 also engaged in the construction of building in respect of the land on which the suit property / flat alongwith other flats to be constructed. It is the case of the O.P. 2 as averred, that O.P. no. 1 assigned the development work in favour of the O.P.no. 2 and being satisfied with this arrangement the O.P.no. 2 received an amount of Rs. 3 lakh as advance and a total amount of Rs. 5 lakh for which the O.P2. issued receipt. But it is disagreed by the O.P. no. 2 about any agreement for sale that was executed by and between him and the complainants / purchasers. The O.P. no. 2 denied having any knowledge about the execution of the agreement for sale in respect of that flat and location which to be allotted to the complainants. The O.P. no. 2 denied having any knowledge except that a total consideration of the flat has been fixed for Rs. 24 lakh against which Rs. 5 lakh was taken by the O.P2. As there was no sales agreement within the knowledge of the O.P2. about any sales agreement, hence, the O.P.2 was unaware about handing over the flat within 27.02.2020 of registration of the flat within December, 2020. The O.P. no. 2 further averred that they refunded Rs. 3 lakh out of the total amount received for Rs. 5 lakh on the condition that the complainants would hand over back the agreement for sale by and between the O.P. no. 1 and the complainants along with the money receipts that were issued by the O.P. 2. WThe OP2 claimed that as the complainants did not hand over the original agreement or the money receipts neither executed the cancellation of the agreement for sale, hence the O.P. no. 2 stopped payment of cheque of the balance Rs. 2 lakh. Further the O.P. no. 2 proposed a counter offer that the flat under agreement for sale being in ready condition for delivery and if the complainants willing to purchase the flat on payment of balance consideration amount of Rs. 24 lakh and if executes the cancellation of the original agreement for sale by handing over the same along with money receipts, then OP2 is agreed for the same. In their supplementary agreement the O.P. no. 2 repeated the same version mostly as per the W/V and further added inter-alia by reinforcement of their stand that there is no relationship between the vendor and purchaser / complainants in respect of the O.P. no. 2 and as such the complainants are not entitled for any relief from O.P. no. 2.
The questionnaire and replies were exchanged between the parties which did not bring out any additional point except the aforesaid.
The arguments as advanced by both sides were heard in full read with all records and documents. The points for consideration are :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
Point No.1:-
On perusal of documents and records, it appears that the first party shall indemnify the second party, in case the first party makes any delay after the month of December 2018, in handing over the possession of the said flat to the second party. The sales agreement dated 13.11.2019 as filed by the complainants also reveals that there are certain terms and conditions regarding cancellation of agreement by either side and regarding liquidated damage. But whether the sale agreement got concluded, that could not be ascertained in absence of cogent proof. OP1 denied the same having executed as well as the OP2, which is the admitted position of the complainants also, so far the OP2 is concerned.
However the complainants made payments against receipts to OP2. The complainant entered into an agreement with the OP1 and paid to OP2 for purchasing a flat at a consideration money of Rs.24,00,000/-. The agreement was entered on 13.11.2019 and the complainant paid Rs.5,00,000/- in two parts.
As per Sec 2(7) of the Consumer Protection Act 2019 :-
- "Consumer" means any person who— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;
Or
- Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Hence the complainant is a consumer u/s 2(7) of the C P Act 2019 as per the payment proof and as such, the 1st point is decided in favour of the complainant.
Point No:2 & 3:
Both the points are taken up together for the sake of brevity and to avoid repetition. The sales agreement dated 13.11.2019 which the complainant filed in this case is undoubtedly on the basis of some unregistered sales agreement. But it is not a case for specific performance of contract. So, this fact shall not vitiate the case of the complainants.
We have already discussed that in the present case the complainants were not refunded entire advance money. It is an admitted position that the complainant paid a portion of the total consideration as booking money. It is admitted by the OP2, that they intended to refund the amount to the complainant but did not. But as per claim of OP2, any agreement executed by and between parties cannot get nullified if taken back physically by one of the parties from the other, neither original receipts can just be physically taken back which unless are rescinded without following due process of law. The reasons cited by the OP2 for not refunding the advance money to the complainants on such pre- conditions are not tenable in the law. These are basic elements of legal framework and needs no further clarifications.
As the complainants paid the booking amount to OP2, they are consumers and there is deficiency in service by the OP2 for not refunding money. In pursuant to the money receipts for sale, it appears that the OP2 developer has agreed to deliver the possession of the flat in question without any delay or default. It is pertinent to note that the OP2 has already received part consideration amount of Rs. 4,00,000/- from the end of the complainants. But the OP2 has failed to deliver the possession of the aforesaid flat in question to the complainant as well as failed to execute and register the deed of conveyance in favour of the complainant till date, causing clear gross negligence and deficiency in service on the part of the OP2. If there is any valid demand or claim at the behest of the OP1, the OP2 may take action, but the complainants are not supposed to suffer any mental paid and/or agony due to internal disputes between the OP1 and OP2 developers. In this regard we can safely rely upon the two case laws which are described as follows:
“Smt. V. Kamala & others -vs- K. Rajib represented by his General Power of Attorney Holder, K.V. Babji & others reported in 2014 (3) CPR 91(N.C.) wherein the Hon’ble NCDRC has been pleased to hold that an inter-se dispute between the owners and builder cannot be permitted to be used as a ploy to wriggle out of obligation under agreements and leave buyers in lurch”
So, the complainants are entitled to relief in the form of refund alongwith compensation and cost. So, all the points are decided in favour of the Complainants. Whether an agreement for sale was executed or not, the complainants made down payments of Rs. 5,00,000/- to OP2. Neither the complainants got the flat nor the entire money back, and an amount of Rs. 2,00,000/- remained outstanding. The complainants spent time in mental agony. But it did not materialise. The cherished hope of having a home or flat got frustrated. So the complainants are entitled to relief as prayed for. Hence the point 2 and 3 are decided in favour of the complainants and against the OP2
In the result, the complaint case succeeds.
Hence, it is,
ORDERED
That the complaint be and the same is allowed on contest against OP2 with cost of Rs.25,000/- (Rupees Twenty Five Thousand) only.
The case is dismissed on contest against OP no.1.
The OP2 is directed to refund the balance outstanding amount of Rs.2,00,000/- (Rs. Two Lakhs) only along with a compensation in the form of a simple interest @ 9 % per annum from 24.02.2019 till actual payment and another Rs.25,000/- (Rupees twenty Five Thousand) only as litigation cost to the complainants within 60 days from the date of this order, I/D, the entire decreetal amount will accrue a simple interest @ 12 % per annum for the same period.
As the OP2 is yet to comply the previous order no. 20 dated 29.01.2024 to make payment of cost of Rs. 800/- (Rs. 200 + Rs. 300/- + Rs. 300/-) so the OP2 is directed to make payment of Rs. 800/- to the complainant (Rupees Eight hundred) only within 60 days from the date of this order.
That the complainant is at liberty to put the entire order into execution if the aforesaid directions are not complied within 60 days from the date of this order.
Let a copy of this order be supplied to the parties concerned free of cost as per CPR 2005.
That the final order will be available in the following website www.confonet.nic.in
