Date of filing: 28/08/2020
Date of Judgment: 15/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Amitabha Dasgupta under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) namely (1) Sri Soumen Chakraborty proprietor of A.G. construction, (2) Smt. Rinku Sarkar and (3) Sri Niranjan Sarkar alleging deficiency in service on the part of the opposite parties.
Case of complainant in short is that OP No. 2 & 3 being owners of Premises No. 246B, Jadav Ghosh Road, Kolkata – 700 061 entered into a development agreement with OP 1 in the year 2013 and consequent to the said development agreement and power of attorney, OP 1 entered into an agreement for sale with the complainant dated 25/06/2014 to sell a flat measuring more or less 370 sq. ft. described in the schedule ‘B’ of the said agreement for sale at a total consideration price of Rs. 7,00,000/-. Complainant paid an amount of Rs. 1,40,000/- to the OP 1 the developer on the date of execution of the agreement for sale. The complainant has also taken home loan from United Bank of India and so a further sum of Rs. 3,00,000/- was paid to the complainant. Thus a total sum of Rs. 4,40,000/- has already been paid to the OP 1 out of the total consideration price of Rs. of Rs. 7,00,000/-. The complainant time and again visited the site but found that the OP 1 was reluctant to raise the construction of the building and thereby completion of the flat as well. Seven years was passed since the execution of the agreement but neither the possession was delivered nor the deed of conveyance was executed in favour of the complainant. So the present complaint has been filed praying for directing the OPs to provide lawful papers, documents and sanctioned plan, to execute and register sale deed on receiving the balance consideration price, to pay sum of Rs. 10,00,000/- as compensation or alternatively to refund advance paid by the complainant of Rs. 4,40,000/- along with banking interest.
OP 1 is contesting the case by filing the written version denying and disputing the allegation. He has admitted to have received Rs. 4,40,000/- in total but has specifically contended that the complainant defaulted in making further payment of the consideration price. It is further contended that at present OP intends to refund the money paid by the complainant after deduction of 1,00,000/- due to non-performance on the part of the complainant. Thus the OP has prayed for dismissal of the complaint.
On perusal of the record it appears OP 2 & 3 did not take any step on service of notice and thus the case has been heard exparte against them.
During the course of evidence both the parties i.e. complainant and OP 1 filed their respective affidavit in chief followed by filing of questionnaire and reply thereto and thus ultimately argument has been heard. Both parties have also filed BNA.
So the following points require determination:
- Whether the complainant is a consumer under the provision of the Consumer Protection Act?
- Whether there has been deficiency in service on the part of the OPs?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
Point No. 1:
It is an admitted fact that an agreement for sale was entered into between the complainant and the OP 1 on 25/06/2014 wherein complainant agreed to purchase the flat as described in the 2nd schedule of the said agreement. It is also an admitted fact that a development agreement was entered into between the OP 2 & 3 and OP 1 and power of attorney was executed in favour of the OP 1, the developer by the owners being OP 2 & 3, in the year 2013. So apparently by an agreement for sale dated 25/06/2014 complainant had hired the service of housing construction of OP 1 the developer. It is further an admitted position that the possession of the flat has not been handed over to the complainant. It is evident that the complainant has made the part payment of Rs. 4,40,000/- out of consideration price of Rs. 7,00,000/-. According to the complainant, further payment was not made because he found that the construction of the building was not raised on his visit to the site. It may be pointed out that OP also did not write to the complainant for non payment of the rest of the amount, the agreement of sale was cancelled. In such a situation when there has not been any refusal on the part of the OP 1 the developer to handover possession for non payment, the cause of action continues and as such complainant is a consumer under the provision of the Consumer Protection Act.
Point Nos. 2 & 3
Both points are taken up together for a comprehensive discussion being co related.
As already discussed in point No. 1, execution of development agreement along with power of attorney registered in the year 2013 between OP 1 as developer and OP 2 & 3 as owners, are not in dispute. The execution of agreement for sale between the complainant and OP 1 is also an admitted fact. The OP 1 has also not disputed and denied that a total sum of Rs. 4,40,000/- has been paid by the complainant out of the total consideration price of Rs. 7,00,000/- and only Rs. 2,60,000/- is due to be paid. The only contention raised by OP 1 is that the complainant defaulted in making of further payment and thus he has not complied the terms of the agreement. But in this context it may be pertinent to point out that a specific question has been put to OP 1 by the complainant being question No. 4 as to whether OP 1 has any document that he had informed the complainant about readiness of the flat and for registration and possession. OP 1 has not answered to the said specific question whether any communication was made at any time to the complainant informing that the flat was ready for possession and for execution of the deed.
Similarly in answer to the question No. 9 regarding whether OP 1 has any evidence or document that before filing of this case he had informed and intimated the complainant that he was willing to register the flat in favour of the complainant. OP 1 again has not given any specific reply to the said question.
So it is evident that there is no document before this commission that the flat was ready for delivery of its possession to the complainant. In such a situation, same supports the claim of the complainant that on his visit to the site he found the construction of the building was not completed. It further appears from the written version filed by the OP that it has been specifically stated that opposite party will hand over the physical possession of the subject flat and cause endeavour for the execution and registration of the deed of conveyance in favour of the complainant at the cost of the complainant. Same has been stated in Para 13 Clause ‘D’ of the written version. If that be so, than, since admittedly the possession has not been handed over neither the deed has been executed in favour of the complainant as per agreement for sale dated 26/06/2015, complainant is entitled to the possession, execution and registration of deed in his favour. In failure to do so, he is entitled to refund of the sum paid by him along with interest. Be it mentioned here that even though complainant has not specifically prayed for handing over of possession but since apparently possession has not be delivered, it can be allowed for ends of justice under “other reliefs” as prayed by the complainant.
Hence
ORDERED
CC/171/2020 is allowed on contest against OP 1 and exparte against OP 2 & 3. OP 1 is directed to hand over the possession of the flat to the complainant as per agreement dated 25/06/2014 within two months from this date. All the OPs are directed to execute and register the deed of sale in respect of the flat in favour of the complainant within aforesaid period of two months on payment of balance consideration price of Rs. 2,60,000/- by the complainant to OP 1.
In default of handing over of possession of the flat and execution of the deed, OP 1 shall refund the sum of Rs. 4,40,000/- to the complainant along with interest @ 7% p.a. from 07/02/2015 (the date of sanction of the loan and payment of Rs. 3,00,000/-) to till this date within aforesaid period of two months failing which the sum shall carry interest @ 7% p.a. till realisation. OP 1 is further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months.
