THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

 

CASE No. CC- 62 of 2021

 

 

Sri Dulal Dey 

S/O- Sri Sadhan Dey,

Housing Board Quarter Complex,

Type- IV, No. 17,

Udaipur-799120,

District- Gomati.

 

Presently residing at:

Rabindra Palli Quarter Complex,

Type-IV, Room No.48,

(Near IGM Hospital),

Agartala, 799001, P.S. West Agartala,

District- West Tripura. ........….................Complainant.

 

 

-VERSUS-

 

 

1. Sri Sudip Chowdhury,

S/O- Late Sukumar Ranjan Chowdhury,

2/D. Hospital Lane,

(East Of IGM Hospital),

Agartala- 799001,

P.S. West Agartala, 

District- West Tirpura.

 

2. M/S Nirman Infrastructure,

A Partnership Firm,

Having its office at East Shibnagar,

college Road(Extn), Agartala-799004.

P.S. East Agartala,

District- West Tripura.

 

3. Sri Prantosh Saha,

(Partner of M/S Nirman Infrastructure),

S/O- Late Chand Mohan Saha,

P.N. Deb Lane Extension,

(East Shibnagar), Agartala-799004.

P.O. Agartala college, P.S. East Agartala.

District- West Tripura.

 

4. Sri Sahadeb Saha,

(Partner of M/S Nirman Infrastructure),

S/O- Late Bimal Chandra Saha,

Resident of Indrangar, Madhya Para,

Agartala-799006, P.S. New Capital complex,

P.O. Abhoynagar, District- West Tripura. ................Opposite Parties.

 

 

 

 

 

         __________PRESENT__________

 

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

 

 

C O U N S E L

 

 

For the Complainant : Sri Amritlal Saha,

  Sri Kajal Nandi,

  Smt. Abheek Saha,

  Learned Advocates.

  

For the O.P. No.1 & 2 : None Appeared.

 

For the O.P. No.3 : Sri Subhajit Paul,

  Learned Counsel.

 

 

 

 

JUDGMENT  DELIVERED  ON : 07.11.2022

 

 

J U D G M E N T

The case arose due the complaint U/S 35 of the C.P. Act has been filed by Sri Dulal Dey(herein after to as the complainant) presently residing at Rabindra Palli, Agartala Complex, Agartala against Sri Sudip Chowdhury of Agartala herein after referred to as the O.P. No.1, M/S Nirman Infrastructure a Partnership Firm, Agartala, herein after referred to as the O.P. No.2, Sri Prantosh Saha one of the partners of M/S Nirman Infrastructure herein after referred to as the O.P. No.3 and Sri Sahadeb Saha one of the partners of M./S Nirman Infrastructure after referred as O.P. No.4 for not delivered possession of the flat booked by the complainant as per agreement dated 05.08.2016. 

 

2. The averment of the case in brief, is that, the complainant booked a flat on 2nd floor Eastern bank side of (G+ 5) storied building as per agreement of the sale of flat executed on 05.08.2016 between the complainant and the O.P. No.2, 3 and 4 for a consideration of Rs.2 lacs as advance at the time of  executing the agreement. The flat was required to be delivered to the possession of the flat by the O.P. No.2, 3 and 4 within 2 years from the date of sale agreement. It is avert that the O.P. No.2 , 3 and 4 failed to deliver the possession within 2 years and thereafter at the request of O.Ps executed an extended agreement for a period of further 6 months from the date of previous lapse of time for delivery of possession of flat. Despite being so, till the time the complaint is filed with this Commission, the O.Ps did not succeed to the hand over the possession of the said flat to the complainant. It is further asserted that the O.P. has flouted and caused deviation of the plan of the building by the approval of Agartala Municipal corporation while constructing the building. Therefore, the complainant took a decision to withdraw from the agreement and thus not to purchase the said flat because of the inordinate and extra ordinate delay caused by the O.P. No.2, 3 and 4 in delivering the possession of the flat. The complainant further placed that he has aid Rs.28 lacs in total to the O.P. No.2 3 and 4 against the settled consideration amount of Rs.30 lacs at the request of the O.Ps from time to time. It is also confirmed by the complainant that at the instance of the O.Ps No.2, 3 and 4 they purchased stamps for consideration valued Rs.1,50,000/- towards the same purpose and detailed payment made date wise along with supporting payment proof.  

The complainant sent Legal Notice through his engaged counsel on 30.06.2021 to the O.Ps No.2, 3 and 4 demand to return Rs.29, 50,000/- along with 9 % interest from the date of agreement for sale. He further demanded Rs.15 lacs as compensation for breach of agreement for sale and Rs.50,000/- as litigation cost. But the O.Ps No.2, 3 and 4 did not come into terms against this demand and no action was taken towards the same. Being aggrieved so the complainant filed this case. Before this Commission.

 

3. The O.P. No. 2, 3 and 4 contested the case by filing written statement submitted wherein, inter alia, that the complainant did not pay the installments in accordance to the fixed installments  agreed as per agreement of sale. It is submitted by the O.Ps that the amount of Rs.8,50,000/- is pending against the release of payment by the complainant to the O.Ps. It is also refuted by submitting that the complainant was informed about the readiness in respect of delivery of the possession of the falt by the O.Ps subject to payment of pending amount by the complainant. It is also stated that the flat was ready to hand over but the complainant did not  take any initiative to take possession of the flat. On being received of the demand notice from the complainant the complainant was personally contacted by the O.Ps informing him regarding the readiness of the flat with no positive response. It is also submitted that in absence of ideal cash money with the O.Ps they are unable to refund the amount as demanded by the complainant. 

 

4. The O.P. No.1 also submitted written version making averments that as per the agreement the O.P. No.2, 3 and 4  failed to give possession of the flat within the stipulated period so depicted in the agreement and O.P. No.3 and 4 caused to had a deviation of the approved AMC permission. It is also submitted by them at the instance of the O.P. No.3 and 4 the O.P. No.1 in continuation of the earlier agreement renewed it to 28.02.2022 putting some additional terms and conditions. It is also alleged by the O.P. No.1 that the O.P. No.3 and 4 in discharging their duties due to their utter negligence are liable to pay compensation for deficiency of service and unfair trade practice. 

 

5. The documents relied by the complainant has been exhibited and marked as Exhbit- 1 Series.

The documents relied by the O.P. No.2, 3 and 4 submitted by way of firisthi dated 03.08.2022 have been exhibited and marked as Exhibit- A Series. 

 

6. Now, it is to be decided in this present case as follows:-

(i) whether the O.P. No.2, 3 and 4 has adopted any unfair trade practice in complying with the sale Agreement (including the extended sale agreement) and committed deficiency of service by not delivering the possession of the flat to the complainant?

(ii) Whether the complainant is entitled to get relief, as sought for?

 

7. The complainant filed evidence in chief by way of affidavit of him reiterating the submission made in his complaint petition.

  Evidence in chief on affidavit has been submitted by the O.P. No.2 reiterating the points as mentioned in their written version.

 

8. Written argument has been submitted by the complainant as well as by the O.P. No.2, 3 and 4. we have heard both the parties. In brief the salient points of the written argument of the parties;

 

a. It has been pleaded by the complainant that he paid Rs.25 lacs against the consideration amount of Rs.30 lacs towards purchase of flat. The initial agreement was for 2 years and subsequently it got extended for another 6 months. Despite being given considerable time for hand over the possession of the flat the O.Ps No.2, 3 and 4 could not comply with the agreement settled, so executed. It is also argued that at the instance of the O.P. No.2, 3 and 4 he purchased stamps for registered valued of Rs.1,50,000/- and, therefore, the total amount of expenditures incurred by the complainant is Rs.29,50,000/-. It is also denied and refuted very strongly on behalf of the complainant in respect of pendency of Rs.8,50,000/- for payment by the complainant to the O.P. No.2, 3 and 4. in this regard it is categorically mentioned that the complainant has submitted relevant bank statement, money receipt, in support of payment made of Rs.28 lacs  to the O.Ps. the complainant also relied 2 judgments of Hon'ble National Commission relates to case Emaar MGF & Another Vs. Amit Puri reported in (2015) 2 CPJ 568 and Ankur Goyal Vs. Rise project Pvt. Ltd. reported in (2020) 4 CPJ 299. 

 

ii. It has been argued from the side of the O.P. that the complainant did not pay installments at right time and owing to delay in releasing money by the complainant the project could not be executed at right time. It is also argued that the complainant was approached by the O.P. No.2, 3 and 4 by way of a letter dated 3.09.2021 for the flat in question was ready to be delivered with the condition that the complainant should clear the dues in respect of payment of pending installments and the same fact was suppressed  by the complainant in his complaint petition when the complaint petition is filed.  

 

9. We have gone through all the materials on record as well as the evidences in chief submitted on affidavit by the parties. It is found that as per the sale deed executed on 05.08.2016 the O.P. No.2, 3 and 4 are required to hand over the possession of the flat booked by the complainant within 2 years from the date of executing the agreement. But the O.Ps could not complied with the  time stipulation so agreed through the sale deed agreement. Thereafter at the behest of the O.P. No. 2, 3 and 4 and extended sale deed agreement was executed for a period of further 6 months  for delivering the possession of the flat booked by the complainant. It is also came to light at the time of executing first agreement the complainant had to py Rs.2 lacs in advance and the remaining 28 Lacs was to be paid in installment and as per the demand of the O.Ps  from  time to time and hence amount of consideration in totality was Rs.30 Lacs. The O.P. NO.2, 3 and 4 despite being given considerable period of time of extension could not deliver  the possession of the flat to the complainant. From the records it transpires that the complainant paid a total amount of Rs. 28 lacs from time to time to the O.Ps towards the cost of the booked flat. The O.Ps did submit necessary payment proof in support of such payment. Further more, documents towards purchase of stamp duty for registration worth Rs.1,50,000/- has been submitted by the complainant.

 

10. It is further noted that the complainant took home loan from the State Bank of India, Udiapur Branch amounting to Rs.28 Lacs and from the bank record submitted by the complainant it is revealed that he is paying monthly installments towards repayment of the said loan. 

 

11. It is further noted that the O.Ps failed miserably twice, even after extended period allowed to them, to hand over the possession of the flat to the complainant despite being a payment of Rs.28, Lacs paid to the O.Ps against the agreed amount Rs.30 Lacs towards the purchasing value of the flat. The contention of the O.Ps that a letter dated 03.09.2021 has been sent to the complainant informing him about the readiness of the flat but the complainant did not respond positively over the same. On verification of records it is come to our notice that the letter sent on a date which is on the post period of filing of this instant complaint petition. Therefore, this letter does not hold good to claim with the complainant is not agreed or ready to take the possession of the flat. 

 

12. We are of the opinion that the O.P. No.2, 3 and 4 has largely and extensively violated the condition of the sale deed executed between them and the complaint in regard to booking of the  flat in question. We have no hesitation to hold that the complainant is under no obligation to continue the contract after failing twice by the O.P. No.2, 3 and 4 to comply with the time stipulated for delivery the possession of the flat to the complainant. The contention of the O.P. No.2, and 3 that due to Covid situation or other extraneous condition the construction of the flats delayed can not be accepted as any impediment or problems being faced by the builder in execution of the plan the onus lies with the builder only and no way the complainant can suffered for the same. 

 

13. The hard earning money of the complainant has been utilized by the O.P. No.2, 3 and 4 for such a long duration of time without providing any fruitful benefit to the complainant is gross default on the part of the O.P. No.2, 3 and 4. Further more, the complainant had to pay loan installments regularly to the bank against home loan taken for the purpose of purchasing the flat in question. The bank charges a good rate of interest on the home loan taken by the complainant which is being borne by him. It appears from the sanction memo that the home loan issued by the bank that they are charging interest of the loan @ 9.25 % which is quite a high amount. 

 

14. Since, the O.P. committed default in executing the contractual agreement even after allowing them extended time they are liable to pay refund the entire paid amount along with the amount incurred for purchasing stamp duty by the complainant with interest. 

 

15. In this regard the complainant adduced 2 relevant judgment title..... wherein Hon'ble National Commission has also passed order in favour of the complainant owing to not being hand over the possession of the flat/ non completion of construction in time. 

 

16. Now, we order that the O.Ps No.2, 3 and 4 shall return Rs.28 Lacs with 9% interest from the date of payment/date of receipt issued by the O.Ps to the complainant. In case of payment of Rs.1.5 Lacs for stamp for registration purchased by the complainant the interest shall be paid from the date of purchase of such stamp of registration, failing which the amount of interest shall be @ 12 % P.A. from the date of deposits/ date of purchase of stamp till realization of the full amount.

We also order that an compensation amount of Rs.1.5 Lacs for deficiency of service and adopting unfair trade practice by the O.Ps along with a litigation cost of Rs.25,000/- to the complainant within a period of 2 months failing which the amount of interest shall be @ 9% P.A. 

Accordingly the complainant succeeded  in proving the case. 

Supply copy of this judgment to the parties free of cost.

 

 

Announced.

 

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

 

 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.