Dt. of filing -02/07/2018
Dt. of Judgement – 09/10/2020
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Bhaskar Biswas under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Sri Soumen Chakraborty 2) Smt. Rinku Sarkar 3) Sri Niranjan Sarkar and 4) Branch Manager, United Bank of India alleging deficiency in service on their part.
Case of the Complainant in short is that he entered into an agreement for sale dated 6/3/2017 with Opposite Party No.1. He agreed to purchase a flat described in the schedule ‘B’ of the agreement at a consideration of Rs.13,00,000/-. Opposite Party No.1 is the Developer and Opposite Party No.2 & 3 are the owners of the property. Complainant paid sum of Rs.1,30,000/- to the Developer as earnest money at the time of execution of agreement and also obtained loan from Opposite Party No.4 which was disbursed to the Opposite Party No.1 by the Bank. Total amount of Rs.13,39,721/- has been paid to the OP No. 1. Bank has paid Rs.12,09,728/- to the Developer. Thus an extra amount of Rs.39,720/- has been paid to the Developer. As per terms of the agreement the flat was to be handed over in favour of the Complainant within a period of 12 months from the date of agreement from the Developer’s allocation and the Deed of Conveyance was to be registered. On his visit on 27th May, 2018, Complainant found building was not completed. So a letter was issued by the Complainant to the Opposite Party No.1 on 20/03/2018 seeking delivery of the possession but all in vain. Neither he has been handed over the flat nor money has been refunded to him. Opposite Party No.4/Bank disbursed the loan amount not in accordance with terms of agreement. It has disbursed the amount more than the desirable one. So the present complaint has been filed by the Complainant praying for directing the Opposite Party No.1 to pay Rs.13,39,728/- along with interest, to direct OPs to pay compensation of Rs.3,00,000/- for mental agony and to pay cost of proceeding.
Complainant has annexed with the complaint petition agreement for sale dated 6/3/2017 entered into between the parties, Letter sent by the Complainant to Opposite Party No.1 dated 20/3/2018, letter sent by the Bank to the Complainant dated 2/5/2018, Letter dated 4/5/2018 sent by the Complainant to the Bank and the copy of the notice sent by the Complainant dated 28/5/2018.
Opposite Party No.1 has contested the case by filing the written version denying and disputing the allegations contending inter alia that the complainant is a service man in Central Govt and for the purpose of investment he approached the OP and in order to secure his investment consequently he entered into an agreement for sale dated 06.03.2017. In fact Complainant is a creditor and the Opposite Party No.1 is a debtor in respect of Rs.11,70,000/- only. The Opposite Party is willing and ready to refund such money. Complainant never paid any amount of Rs.1,30,000/- as stated in the alleged agreement for sale. The agreement dated 6/3/2017 is a symbolic one and entered between the parties towards the security of the money financed by Opposite Party No.4 at the behest of the Complainant. It is contended by Opposite Party No.1 that the Complainant is not a consumer under the provision of the Consumer Protection Act. Thus Opposite Party No.1 has prayed for dismissal of the case.
Opposite Party No.4 has also contested the case by filing a separate written version contending inter alia that Complainant applied for term loan/housing loan on 21/3/2017 and submitted all necessary documents. So considering the necessary papers Opposite Party No.4 sanctioned the term loan of an amount of Rs.12,09,728/- only in favour of the Complainant on 28/3/2017. After the loan amount was sanctioned, Opposite Party No.4 disbursed loan of Rs.11,70,000/- on different dates. Complainant has paid EMI of the loan of Rs. 10,780/- only till December, 2017 but due to irregular payment of EMI said loan amount has become NPA as per banking norms and rules. A notice has also been sent to the Complainant dated 2/5/2018. So Opposite Party No.4 has prayed for dismissal of the case against it.
Opposite Party No.2 & 3 did not take any step inspite of service of notice, thus the case proceeded ex-parte against them.
During the course of the trial, Complainant filed affidavit-in-chief followed by filing of questionnaire by Opposite Party No.1 & 4 and reply thereto by the Complainant. Affidavit-in-chief was also filed by the Opposite Party followed by filing of questionnaire by the Complainant. However no reply was filed by the Opposite Party and thus ultimately argument has been advanced by both the parties. Written notes of argument has also been filed on behalf of Opposite Party No.1 and the Complainant.
So on consideration of the case as made out by both sides, following points require determination:
- Whether the complaint is maintainable in law?
- Whether there has been any deficiency in service?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No. 1 to 3
All these points being inter-related are taken-up together for discussions for the sake of convenience and to avoid repetition.
Complainant has claimed that by an agreement for sale dated 6/3/2017 he agreed to purchase a flat as described in the schedule ‘B’ of the agreement at a total consideration of Rs.13,00,000/- and according to him he has paid the entire amount of consideration. Rs.1,30,000/- was paid by himself at the time of execution of agreement and rest of the amount was paid through Bank loan. In support of his claim, he has filed copy of the agreement wherefrom it appears that Opposite Party No.1 being developer agreed to complete the flat and to hand over the same within 12 months from the date of the agreement. The agreement further indicates that Opposite Party No.2 & 3 are the conforming party. It is evident from the agreement that an amount of Rs.1,30,000/- was already received by the developer on the date of execution of the agreement. It is clearly reflected in the memo of consideration in the agreement. Document also reveals the payment of the loan amount on different stages by the Bank. Bank has categorically stated in the written version that an amount of Rs.11,70,000/- has been disbursed on different dates even though the term loan of Rs.12,09,728/- was sanctioned. It is apparent from the written version filed by the Bank that the loan was sanctioned on the prayer of the Complainant on filing all the necessary papers including the agreement for sale. So the contention of the Opposite Party No.1 that there was no such agreement for sale and relation between Complainant and the Opposite Party No.1 was only creditor and debtor cannot be accepted. Opposite Party No.1 has not filed a single scrap of paper in order to substantiate his claim that the Complainant has invested the said sum towards the security of money financed by the Bank. So on consideration of the agreement, the execution of which has not been denied by Opposite Party No.1 coupled with the Bank statement and the written version filed by the Bank, there remains no doubt that an amount of Rs. 13,00,000/- was paid to the OP No. 1 but Complainant has neither been handed over the flat nor he has been refunded the money. So complainant is entitled to refund of the said sum. Since there is no material that any amount was paid to the Opposite Party No,2 & 3, no cause of action lies against them and thus the case is liable to be dismissed against them. With regard to the Opposite Party No.4, it is apparent that loan of Rs.11,70,000/- has already been disbursed to the Opposite Party No.1 on the prayer of the Complainant but due to irregular payment of EMI, Bank has proceeded against the complainant as per banking norms and rules. But so far as this case is concerned, as it is established that complainant paid Rs. 1,30,000/- as advance and 11,70,000/- through bank loan, Complainant is entitled to refund of Rs.13,00,000/- from the Opposite Party No. 1.
Hence,
ORDERED
CC/396/2018 is allowed on contest against Opposite Party No.1 and dismissed ex-parte against Opposite Party No.2 & 3. It is also dismissed on contest against Opposite Party No.4. Opposite Party No.1 is directed to pay an amount of Rs.13,00,000/- to the Complainant along with interest (in the form of compensation) on the said sum @ 9% from the last date of payment i.e. 11/4/2017 to till this date, within 2 months from this date in default the entire sum shall carry interest @ 9% p.a. till realisation.
Opposite Party No.1 is further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of 2 months.
