This case of the complainant, Smt. Munmun Pathak is that on 17.7.2014 the opposite party entered into an agreement for sale of a garage with the complainant wherein the opposite party agreed to sell one completer garage being no. G-3, on the ground floor of the building namely Prantik Apartment measuring about 278 sq.ft. together with proportionate, undivided share of land concerned and also together with common facilities, thereon, hereinafter collectively called and referred to as the said garage to the complainant at or for the price and/or consideration of Rs.5,80,000/- only and took a sum of Rs. 1,18,000/- only from the complainant towards earnest money and also a agreed to handover the possession of the said garage within 2 months from the date of execution of the said agreement for sale.
The complainant also states that the said two months period has already been expired on 16.9.2014 but the opposite party did not hand over the possession of the said garage to the complainant till date and the complainant on several times requested the opposite party to hand over the possession of the said garage to her but every time the opposite party failed to comply with the request of the complainant and took time on a same excuse that as he was unable to arrange any other alternative garage for the purpose of parking his own car, he was unable to hand over the possession of the said garage to the complainant and always requested the complainant to wait for some time and told her that as soon as he will be able to arrange alternative garage for his own car, he will hand over the possession of the said garage to the complainant after receiving the balance of the consideration amount from the complainant and shall complete the legal formalities regarding the sale of the said garage and it is specifically mentioned that the complainant also purchased a residential flat being flat no.5-D, on 4th floor of the said building known as Prantik Apartment from M/S Shiva Construction, a partnership firm of which the opposite party is one of the partners and for that a cordial and friendly relationship grown up between the opposite party and the husband of the complainant and considering the said relationship the complainant always gave Honour to the requests of the opposite party and comply with the request of the opposite party and the opposite party will hand over the possession of the said garage soon to the complainant.
The complainant also states that just before Durga Puja of 2016, the complainant was that the opposite party in very high handed and absolutely in illegal manner delivered the possession of the said garage to Saibal Haldar, son of Sri Netai Halder and said Saibal Haldar started an office cum grocery and stationery goods shop in the front portion of the said garage, keeping the car of the opposite party at the back portion of the said garage and again it should be specifically mentioned herein that said Saibal haldar is the son of Netai haldar, who was the owner of the land upon which the said partnership firm of the opposite party constructed a G+4 building after being engaged by said Netai Haldar as the developer of the land underneath to the said building vide an agreement for development dt. 4.10.2010 and as per the terms and conditions of the said development agreement, the developer, i.e. the said partnership firm of the opposite party handed over the possession of the said garage to said Netai Haldar and after getting possession of the said garage, said Netai Haldar sold transfer and conveyed the said garage to the opposite party by virtue of a registered deed of conveyance (sale deed) being no. 3684 for the year 2012 of the office of the Additional Registrar of Assurance-III, Kolkata, West Bengal and due to the said illegal activities of the opposite party, the complainant now reasonably believes that the opposite party after making conspiracy with said Saibal Haldar and his father Netai Haldar are trying to cheat the complainant and are trying to deprive the complainant from her legitimate and legal claim and right over the said garage.
The complainant also states that the complainant served legal notice dt. 26.11.2016 upon the opposite party through her Ld. Advocate Sri Amit Kumar Agarwala by registered post with A/D card and the opposite party received the said notice after putting his signature upon the A/D card attached with the said notice wherein the Ld. Advocate for and on behalf of the complainant requested the opposite party to make the said garage free from all sorts of encumbrances after taking back the possession of the said garage from said Saibal Haldar and handed over the peaceful possession of the said garage in favour of complainant after taking the balance of the consideration amount from the complainant as per the terms and conditions of the said agreement for sale and also request the opposite party to execute the deed of conveyance in respect of the said garage in favour of the complainant at her cost within 15 days from the date of receipt of the said notice by the opposite party but the opposite party in spite of receiving the said notice, did not comply with the requests of the said notice and did not make the said garage free from all sorts of encumbrances after taking back the possession of the said garage from said Saibal Haldar and did not hand over the possession of the said garage in favour of the complainant after receiving the balance of the consideration amount from the complainant and did not give any reply to the said notice till date, stating the date and time, when he will be available for accepting the balance of the consideration amount of the said garage and for execution of the deed of conveyance in respect of the said garage in favour of the complainant.
The complainant also states that in the said notice the Ld. Advocate on behalf of the complainant gave ultimatum to the op stating that if the op would failed to comply with the request of the said notice within the said 15 days from the date of receipt of the said notice, then the op shall be liable to pay the said amount of earnest money of Rs. 1,18,000/- of the said garage with 12% interest thereon from the date of received of the said amount of earnest money till the date of repayment to the complainant and also liable to be paid Rs. 2,00,000/- only to the complainant towards compensation as the complainant is passing her days in a great tension and mental agony and also passing almost sleepless nights since a considerable period of time and shall also liable to pay Rs. 20,000/- only towards the cost of litigation and Rs. 1,000/- only towards the cost of said legal notice but the opposite party did not pay any heed to the said request of the opposite party as per the said notice till date and for that complainant after being compelled by the said illegal act of the opposite party, filed this case before this Ld. Forum for redressed and relief as per the prayer of this complaint and the cause of action to file the present complaint before this Ld. Forum arose on 20.1.2017 when the 15 days time of the said notice was expired.
Complainant filed the complaint petition praying direction upon the opposite party to hand over the peaceful possession of the said schedule mentioned garage in favour of the complainant after taking the balance of the consideration amount of the said garage from the complainant and to execute the deed of conveyance in respect of the said schedule mentioned garage in favour of the complainant at the cost of the complainant, within a stipulated period of time as framed by the Ld. Forum failing which to refund the earnest money of Rs. 1,18,000/- only of the said garage with 12% interest thereon from the date of receipt of the said amount of earnest money till the date of repayment to complainant and also to pay Rs.2,00000/- only to the complainant towards compensation as the complainant is passing her days in a great tension and mental agony and also passing sleepless nights since a considerable period of time and also to pay Rs.20,000/- only towards the cost of present litigation Rs. 1000/- only towards the cost of said legal notice totaling Rs.3,39,000/- only and a decree of permanent injunction restraining the opposite party and any other order to relief or relives for which the complainant is lawfully entitled.
The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This opposite party averred that he is not a promoter, though the op along with other persons initially constructed the multistoried building but subsequently after completion of same the op of this case purchased the garage in question from the promoter and on the strength of that purchased deed the absolute owner of the garage is op and after purchasing the same the present complainant approached the op regarding his willingness in respect of purchase of said garage and the economical trouble was arise in the life of the op that is why he was agreed to execute a deed of sale of the garage in favour of the op as the earnest money of Rs. 5,80,000/- in that effect agreement of sale has been executed by the op in favour of the complainant after receiving the sum of Rs. 1,18,000/- with condition the complainant will purchase the same within two months after payment of rest amount.
The opposite party also states that there was a clause that in respect of violation of the clause of execution of the same after payment the rest amount within the period in that effect 10% money will be deducted from the advance amount and the complainant never make any attempt to purchase the same within a period through the op make reminder in various times but the result of said reminder was take the number ‘o’ and thereafter the op of this case requested to the complainant to return back the entire advance amount through there was a clause of deduction 10% from the advance amount and though the time was selected after conversation of both the parties 2 months as stipulated period but as a good citizen the op consider more than 2 months for fulfill the aims of the complainant but all efforts from the op becomes in vain.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition.
Both sides files written notes of argument which are taken into consideration while passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Smt Munmun Pathak is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Smt Munmun Pathak is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the intending purchaser paid consideration money in respect of schedule mentioned garage, so she is entitled to get service from the opposite party as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.780,000/- including the cost of garage and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/-limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
This case of the complainant is that on 17.7.2014 the opposite party entered into an agreement for sale of a garage with the complainant wherein the opposite party agreed to sell one completed garage being no. G-3, on the ground floor of the building namely Prantik Apartment measuring about 278 sq.ft. together with proportionate, undivided share of land concerned and also together with common facilities, thereon, for the price and/or consideration of Rs.5,80,000/- only and took a sum of Rs. 1,18,000/- only from the complainant towards earnest money and agreed to handover the possession of the said garage within 2 months from the date of execution of the said agreement for sale. After elapsing the period of two months the opposite party did not hand over the possession of the said garage to the complainant till date and the complainant on several times requested the opposite party to hand over the possession of the said garage to her but every time the opposite party failed to comply with the request of the complainant and took time on a same excuse that as he was unable to arrange any other alternative garage for the purpose of parking his own car and always requested the complainant to wait for some time and told her that as soon as he will be able to arrange alternative garage for his own car, he will hand over the possession of the said garage to the complainant after receiving the balance of the consideration amount from the complainant and shall complete the legal formalities regarding the sale of the said garage and it is specifically mentioned that the complainant also purchased a residential flat being flat no.5-D, on 4th floor of the said building known as Prantik Apartment from M/S Shiva Construction, a partnership firm of which the opposite party is one of the partners and for that a cordial and friendly relationship grown up between the opposite party and the husband of the complainant and considering the said relationship the complainant always gave Honour to the requests of the opposite party. That before Durga Puja of 2016 that the opposite party in illegal manner delivered the possession of the said garage to Saibal Haldar, son of Sri Netai Halder and said Saibal Haldar started an office cum grocery and stationery goods shop in the front portion of the said garage, keeping the car of the opposite party at the back portion of the said garage and again it should be specifically mentioned herein that said Saibal Haldar is the son of Netai Haldar, who was the owner of the land upon which the said partnership firm of the opposite party constructed a G+4 building after being engaged by said Netai Haldar as the developer of the land underneath to the said building vide an agreement for development dt. 4.10.2010 and as per the terms and conditions of the said development agreement, the developer, i.e. the said partnership firm of the opposite party handed over the possession of the said garage to said Netai Haldar and after getting possession of the said garage, said Netai Haldar transferred and conveyed the said garage to the opposite party by virtue of a registered deed of conveyance (sale deed) being no. 3684 for the year 2012 of the office of the Additional Registrar of Assurance-III, Kolkata, West Bengal and due to the said illegal activities of the opposite party, the complainant now reasonably believes that the opposite party after making conspiracy with said Saibal Haldar and his father Netai Haldar are trying to cheat the complainant and are trying to deprive the complainant from her legitimate and legal claim and right over the said garage. The complainant served legal notice dt. 26.11.2016 upon the opposite party through her ld. Advocate requesting the opposite party to make the said garage free from all sorts of encumbrances after taking back the possession of the said garage from said Saibal Haldar and handed over the peaceful possession of the said garage in favour of complainant after taking the balance of the consideration amount from the complainant as per the terms and conditions of the said agreement for sale and also requested the opposite party to execute the deed of conveyance in respect of the said garage in favour of the complainant at her cost within 15 days from the date of receipt of the said notice. But the opposite party in spite of receiving the said notice, did not comply with the requests of the said notice and did not make the said garage free from all sorts of encumbrances after taking back the possession of the said garage from said Saibal Haldar and did not hand over the possession. So the complainant getting no alternative filed the instant complaint before this Forum praying directions upon the opposite party as incorporated in the prayer portion of the complaint petition.
This opposite party by filing written version averred that he is not a promoter, though the opposite party along with other persons initially constructed the multistoried building but subsequently after completion of same the opposite party of this case purchased the garage in question from the promoter and on the strength of that purchased deed from the absolute owner of the garage and after purchasing the same the present complainant approached the opposite party regarding his willingness in respect of purchase of said garage and the economical trouble was arise in the life of the opposite party that is why he was agreed to execute a deed of sale of the garage in favour of the opposite party as the earnest money of Rs.5,80,000/- in that effect agreement of sale has been executed by the opposite party in favour of the complainant after receiving the sum of Rs.1,18,000/- with condition the complainant will purchase the same within two months after payment of rest amount.
The opposite party also averred in his argument that there was a clause in respect of violation of the clause of execution of the same after payment the rest amount within the period in that effect 10% money will be deducted from the advance amount and the complainant never make any attempt to purchase the same within a period through the opposite party make reminders in various times but the result of said reminder was take the number and thereafter the opposite party of this case requested to the complainant to return back the entire advance amount though there was a clause of deduction 10% from the advance amount and the time was selected after conversation of both the parties 2 months as stipulated period but as a good citizen the opposite party considered more than 2 months for fulfilling the aims of the complainant but all efforts from the opposite party becomes in vain.
It is clear from the case record that the complainant paid a sum of Rs.118,000/- to the opposite party for purchasing a garage being no.G-3 on the ground floor of the building namely Prantik Aparment within the Serampore municipality. A deed of agreement for sale executed in between the complainant and the opposite party dated 17.7.2014. In the said agreement it is admitted that the complainant paid Rs.1,18,000/- as earnest money and remaining consideration money of Rs.462,000/- shall be Paid at the time of completion of the purchase. But the delivery of possession was not complete as the vendor is in possession. So the complainant approached the opposite party to execute the deed of conveyance in favour of her. But her utterance became futile owing to non cooperation on the part of the opposite party. Complainant served legal notice dated 26.12.2016 stating her grievances but the opposite party took no measure to validate the terms of the agreement rather the opposite party took the plea of elapsing two months from the date of agreement. In his legal notice the complainant requested the opposite party to comply within 15 days in default the opposite party shall be liable to pay amount Rs.1,18000/- with 12% interest from the date of receipt of the said amount till the date of repayment and cost and compensation but the opposite party failed to comply the request of the complainant in accordance with the agreement for sale. The opposite party in his argument admitted that he did not gave possession of the garage to anyone as alleged rather he is enjoying the same for his own use and also stated that complainant is not the consumer of the opposite party in respect of said garage and there is no deficiency of service on the part of the opposite party. In his evidence opposite party also took plea that the stipulated term to purchase the said garage in question was fixed within 2 months from the date of the execution of the said agreement and he waited for a considerable period of more than 2 months in good faith. But due to negligent act on the part of the complainant, it was not possible to make the said deed of agreement fruitful.
The complainant stated in her paras of evidence on affidavit that she on several occasions approached the opposite party to hand over the delivery of possession and to execute deed of conveyance in favour of her but the opposite party never showed good gesture to deliver the possession of the said garage and to execute the deed of conveyance to the complainant. There is no iota of evidence in the case record from which we can infer that the opposite party showed bona fide to handover the possession and to execute the deed of conveyance in favour of the complainant. But it is transparent that the opposite party although entered into agreement for sale with this complainant to hand over the possession of the garage and to execute the deed of conveyance. Rather the opposite party tried to escape from his liability to hand over the delivery of possession and to execute the deed of sale in favour of the complainant. The complainant in his prayer portion stated that a direction is to be given to the opposite party to hand over the delivery of possession of the impugned garage and to execute the sale deed in favour of her in default the opposite party is under liability to refund the earnest money taken from the complainant along with interest since the date of receipt and compensation. So, we are in a considered opinion to allow the claim of the complainant as the opposite is deficient in providing service towards its Consumer.
It is trite law that after accepting the earnest money, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of her but it remained unheeded. The opposite party tried to evade his responsibility alleging the complainant elapsed the time period of two months to hand over the possession as well as execution of deed.
Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in her favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned garage by adducing cogent document/evidence so the prayer of the complainant is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.
4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance so she is entitled to get compensation as ascertained by this Forum.
ORDER
Hence, ordered that the complaint case being No.136/2017 be and the same is allowed on contest against the opposite party with a litigation cost of Rs.5000/-.
The Opposite Party is directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement or refund the earnest money amounting to Rs.1,18,000/- taken from the complainant with interest @ 10% p.m. from the date of receiving till the payment within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
Dictated and corrected by me.
