Hon’ble Mr. Ajeya Matilal, Presiding Member
This is an application u/s 12 of the Consumer Protection Act 1986. The fact of the case is in short like that the Petitioner No.2 entered into an Agreement for Sale with the Opposite Parties on 02.10.2014 for purchasing a residential flat measuring 950 sq.ft. (covered area). The Petitioner No.1 being a house wife for purchasing a shop in holding no.70/1 Masidhati Road, Mouza Ghola, J.L. No.77 within Barasat Municipality in Order No. 23 on the ground floor of the said multi-storied building called (Rupsha Apartment) gave Rs.50,000/- only to the Opposite Parties on 13.05.2015 for which they issued a money receipt to the Petitioner No.1. The Shop Room is described in ‘B’ Schedule of the complaint. The said deed of conveyance in respect of the flat was executed and registered on 30.11.2015 for consideration of Rs.26,79,000/- (including cost of flat Rs.21,94,500/- and cost of shop/garage of Rs.4,84,500/- through a registered Sale Deed being no.1-7824/15, registered in the office of the ADSR, Barasat, Dist. North 24 Parganas in favour of the Petitioner nos. 1 and 2 by the OPs. Receiving the said deed on 30.11.2015 the Petitioners came to know that the said shop/garage was not registered by the Opposite Parties. Although they told the Petitioners that the shop and the flat would be registered at the time of execution and registration of the said deed. At the time of registration of the sale deed, the flat was unfinished. So, the Opposite Parties promised the Petitioners at the time of registration that they would finish the unfinished work very soon. So, the Petitioners finished the due work at their own cost paying Rs.1,00,000/-. The petitioners enclosed copies of bills with the complaint. Subsequently, the petitioner No.1 wrote two complaint letters of complaint dated 29.04.2017 to the Opposite Party No.1 by registered post requesting them to complete the unfinished work and to register the shop/garage. And the aforesaid letters were received by the Opposite Parties. The Opposite Party No.1 did not respond to such letters. So, the Complainants made a complaint with the Consumer Assistance Bureau, Maya Bhavan, Barasat, North 24 Parganas. The Assistant Director, Consumer Affairs, North 24 Parganas started a case being No.56/16-17/FBP/PGN and sent notice to the Opposite Parties fixing 06.09.2016 for their appearance. But on that day the Opposite Parties did not appear. So, the Assistant Director sent another notice to the Petitioners on 15.09.2016 vide Memo. No.660/FBP/PGN/2016 and advised the Complainants to lodge a complaint with the DCDRF. On 07.05.2017 the Petitioners found that there were so many cracks in the ceiling and inside wall. So, the Petitioners began to live in a rented house paying Rs.15,000/- per month. It is alleged that the money receipt of Rs.50,000/- by cheque by the Opposite Parties in respect of the said shop and garage is not mentioned in the Deed. According to the Complainants, the cause of action of the case arose on 30.11.2015, 29.04.2017 and lastly on 07.05.2017 at the aforementioned place. It came to the notice of the Petitioners on 07.05.2017 for the first time that the inner side wall of the flat sold to the petitioners were cracked from upper side towards down portion and the roof of the both sides were cracked. The Opposite Parties turned down the request of the Petitioner to repair the same, because the flat was already sold out. So, the Complainants filed the instant case praying for direction upon the OPs to take back the said flat from the claimants and to make payment of Rs.53,31,867/- in favour of the claimants being Rs.26,79,000/- being the principal amount and Rs.6,22,867/-, the interest. They also prayed for repayment of legal expenses of Rs.2,00,000/- and house rent, harassment cost of Rs.15,00,000/- and other reliefs.
The Opposite Party No.1 contested the case by filing Written Version denying and disputing the material allegations made in the complaint. According to him, he did not entered into an agreement with the Complainants. According to them, the Complainants or their legal representatives did not scrutinise the Sale Deed as the time of registration about non inclusion of shop/garage. According to the Opposite Party concerned, it would appear from a letter of the OP No.1 dt. 02.04.2015 annexed with their Written Version that there was no issue about the shop/garage. By an application dt. 11.7.2016 for the first time the Complainant No.1 applied for allotting/selling garage/shop. The Complainant advanced a cheque of Rs.30,000/- in favour of Opposite Party No.1. But since there was no agreement to hand over the premises in issue, so, the Opposite Party No.1 did not encash the said cheque. The Opposite Party No.1 contended that he took amount of Rs.50,000/- in January 2016 from all flat owners for plumbing work and installation of electricity. It would appear from the contention of the Written Version, made at page 27, that the Complainant gave N.O.C. for plumbing work at her flat on 17.01.2016.
The Opposite Party No.2 also contested the case by filing a Written Version denying the material allegations of the complainants. The contentions of the Written Version of Opposite Party Nos.1 & 2 are more or less similar.
The parties adduced their evidences by way of affidavit. Questionnaires were put to the parties by their adversaries. The parties concerned also gave reply to such questionnaires. The parties filed BNAs in support of their contentions.
Now, the points for consideration are that -
- Whether the complaint is maintainable?
- Whether the Complainants are consumers?
- Whether there is any deficiency in service on the part of the Opposite Parties?
- Whether the Complainants are entitled to reliefs as prayed for?
- To what other relief or reliefs, in any, the Complainants are entitled to?
Decisions with reasons:-
All the points are taken together for the sake of convenience.
We perused the Agreement for Sale dt. 02.10.2014. Nothing has been mentioned in the said agreement that, any garage or shop room was intended to be sold to the complainant. The Schedule 1 of the Agreement describes the total land and property. The Schedule 2 describes only the flat in question. The Schedule 3 describes the common areas. So, we would like to reiterate the point that the matter of garage or shop room has not been mentioned in the agreements. It is also the grievance of the Complainants that the matter of garage/shop room has not been mentioned in the Sale Deed dt. 30.09.2015. Undoubtedly sale deed was executed following the agreement for sale. On perusal of both the documents, we did not find any whisper regarding the alleged garage in question. It is apparent from the Agreement for Sale at inner page 18 that Rs.5.00 Lakhs, as earnest money, was received from the Purchaser/Complainant by different cheques.
It would appear from the Deed of Conveyance dt. 30.09.2015 that total consideration of Rs.26,79,000/- was paid by the purchaser to the Developers/Opposite Parties. So, it appears from the Deed of Conveyance that it is a concluded contract. So, the Complainants are not consumers.
By the aforesaid Deed the Opposite Parties Nos.1 & 2 sold out the flat in question to the Complainants. The Complainants prayed for direction upon the Opposite Parties concerned to take back the said flat from the Complainants and making payment of Rs.53,31,867/- in favour of the Complainants, which we have mentioned earlier. The Complainants also prayed for compensation for harassment, litigation cost, house rent etc. But the fact remains that the Deed of Conveyance stands in favour of the Complainants and the Complainants are in possession of the property in terms of the Deed of Conveyance. So, no relief can be granted in favour of the Complainant for taking back the consideration amount by the Complainants from the OPs concerned. This Commission has no power to cancel the Deed of Conveyance on any ground. It is within the domain of a Civil Court to cancel any Deed of Conveyance on the ground of fraud, mistake, undue influence etc.
It will not be out of place to mention that The Ld. Advocate for the Complainant drew our attention to the report of the Ld. Engineer Commissioner Mr. Shib Das Bhar dt. 31.07.2018 pointing out some defects in the construction, but it shall not come in rescue of the Complainant. Because the principal relief sought for by the Complainants cannot be granted in their favour in the light of the aforesaid discussion.
So, the Complaint is not maintainable and the Complainants are not consumers and there is no deficiency in service and the complainants are not entitled to any relief as prayed for.
So, all the points are decided against the Complainants answering in negative.
Accordingly, CC/500/2017 is dismissed on contest. There shall be no order as to the costs.
