Complainant by filing this complaint has submitted that op no.1 is the proprietor of M/s. Baba Lokenath Construction and op no.2 is the owner of property as mentioned in the First Schedule of Agreement dated 31.07.2010 and complainant entered into an agreement with the op no.1 on 31.07.2010 for purchasing a self-contained residential flat on the first floor (front portion) South Facing having 950 sq. ft. i.e. 760 sq. ft. covered area plus 25percent Super Built up area consisting of three bed rooms, one living-cum-dining room, one kitchen, one verandah, balcony, toilets and one W.C. together with undivided proportionate impartible share and interest of the land standing on land and building excluding the car parking space and the said premises situated at 16K, Jaharlal Dutta Lane, P.S. Ultadanga at North 24 Parganas, Kolkata-700067 and total consideration was fixed of Rs. 24,70,000/-.
Before execution of that agreement complainant paid Rs. 10,000/- to the op no.1 in cash as advance on 22.07.2010 and further paid Rs. 7,00,000/- out of total money of Rs. 24,70,000/-. After about six months from the date of execution of this Agreement for Sale dated 31.07.2010, ops told the complainants that the fresh agreement should be executed if the complainants wanted to purchase flat in question and as because complainant was very eager to purchase the aforesaid flat and had no other option but to execute the agreement for sale on 25.02.2011 for the same flat as mentioned in the Second Agreement ops- had reduced total consideration of the flat at Rs. 18,05,000/- and as per said agreement, complainant was assured that the flat would be handed over the said self-contained flat within 18 months from the date of agreement i.e. by 23.08.2013 and to get the Deed of Conveyance registered after receipt of balance consideration money but the op no.1 tactfully avoided to receive payment with a view to depriving the complainant to get possession and enjoyment of the flat. After second Agreement, complainant paid Rs.1,000/- in cash on 25.02.2011 and Rs. 50,000/- by cheque on 08.03.2011 to the op and accordingly complainant paid total consideration of Rs. 7,61,000/- to the op actually an amount of Rs. 3,61,000/- has been shown in the Memo of Consideration of Second Agreement.
In terms of the agreement dated 25.02.2011 it was obligatory on the part of the op no.1 to handover the possession of the flat by 24.08.2013 on payment of balance amount of consideration and as per agreement dated 25.02.2011 the flat in question ought to have been handed over to complainant on 24.08.2013 but op no.1 has not taken any step for handing over the possession of the flat and registration of the Deed of Conveyance and considering the negligent attitude of the ops to perform their obligatory Deed of Sale and to handover possession, complainant sent demand notice through his Advocate on 29.01.2014 to the op no.1 by registered post with A/D of the same after receiving the balance amount. But the said letter was returned to the complainant with a note Not Claimed and considering the deficient and negligent manner of service and also for adopting unfair trade practice, complainant has filed this case praying for relief either to register the Deed of Sale in favour of the complainant after receiving the balance consideration and to hand over the flat or to refund the amount with interest with effect from the date of possession and for causing harassment and mental pain and agony and also financial loss.
On the contrary op by filing written statement submitted that this complaint is not maintainable and it is barred by limitation and fact remains complainant instituted a proceeding u/s 9 of Arbitration and Conciliation Act, 1996 before the Ld. District Judge at Alipore, District South 24 Parganas, being Title Suit No. 117 of 2012 which has been dismissed for default on 31.03.2014 and it is further submitted that as per Agreement, complainant is bound to pay the balance amount at the time of completion of the building and when question of handing over possession of the same so arise and in fact Second Agreement was executed for obtaining the bank loans and for which as per request of the complainant, op executed the Sale Agreement dated 25.02.2010. Even then complainant failed to pay in terms of the schedule of the payment as per the agreement for sale dated 31.07.2010. But in the meantime as per the development agreement the building has already been completed and possession of the flats were handed over to the respective buyers and after completion of the building complainants were requested to liquidate the entire consideration money which was due towards the cost of the flat and take the possession of the flat but complainant failed and neglected to liquidate the said amount for which the possession had not been delivered. So, subsequently op through Advocate letter dated 04.05.2011requested the complainant to pay the outstanding consideration amount within the specified period otherwise the agreement shall be terminated. But complainant failed to comply the same and for which that agreement has already been terminated and cancelled and for that the present complaint is not maintainable and practically the agreement for sale was terminated by the op by a letter dated 04.05.2011 and there is no deficiency or negligence on the part of the op and in the meantime op has transferred the said flat by registered deed of sale in favour of the third party. So, the present complaint is not maintainable and the case should be dismissed.
Decision with reasons
On in depth study of the complaint and written version and also considering the agreement for sale, it is admitted portion that initially an agreement to sale was executed on 31.07.2010 for consideration of Rs. 24,70,000/- and Second Agreement was executed without cancelling the first and that was executed on 25.02.2010 by the parties. Whatever it may be as per agreement, complainant must have to pay the balance amount out of Rs. 24, 70,000/-. But actually complainant paid only Rs. 7, 61,000/- and that was paid in between 31.07.2010 to 06.09.2010. But in this case it is found that in the meantime the property in dispute had already been sold on 28.07.2012 by the ops in favour of Bijoy Sankar Gupta at a consideration of Rs. 9, 74,000/- by a Sale Deed. So, apparently at this stage there is no scope to give any relief in respect of the complainants- prayer for delivery of the possession of the flat in favour of the complainant and execution of the sale deed because the property had already been sold on 28.07.2012 and this Forum has no legal authority to cancel that registered sale deed.
On proper scrutiny of the present complaint, it is found that this present complaint was filed on 25.04.2014 and it is clear that during subsistence of the deposited agreement, op sold away the property and when the matter was very complicated, complainant appeared before this Forum and complainant has prayed for refund of advance paid money and interest and compensation.
Most interesting factor is that the agreement to sale was executed in between the complainant and op on 31.07.2010 fixing total consideration money of Rs. 24,70,000/- and out of that op received Rs. 7, 61, 000/- which is admitted fact. But considering the sale deed in favour of Bijoy Sankar Gupta, it is found that total consideration amount is shown as Rs. 12, 74,000/-. So, it is clear that op adopted unfair trade practice no doubt and by selling that property he received more than Rs. 25,00,000/- but he has shown the consideration amount as Rs. 12,74,000/-. Then it is clear that only to deprive the complainant, op sold the said property without taking any legal step against the complainant before any Civil Court. So, apparently it is proved that ops adopted an unfair trade practice and no doubt deceived the complainant for getting the flat though complainant paid in the year 2010 a sum of Rs. 7,61,000/- and with the help of that capital op no.1 the developer invested the same and constructed the building and sold it and got huge amount, that means complainant has been deprived not only from getting the flat but at the same time he has lost huge interest in respect of Rs. 7,61,000/- which was received by the op no.1 on the basis of such agreement and such sort of practice is unfair trade practice and no doubt the op no.1 and the owner of the land have deceived the complainant in so many manners and no doubt it is a deceitful Realty Trade adopted by the op no.1.
In the above situation no doubt complainant is entitled to get back the said amount of Rs. 7, 61,000/- along with 8percent interest over the same with effect from 06.09.2010 and till its full payment by the op.
Truth is that at the time of advancement or argument made by the op, ops- Ld. Lawyer submitted that at the time of cancelling the said deed by Advocate-s Letter op informed the complainant that he is ready to refund the entire amount, But complainant did not receive it for which complainant filed this complaint. So, it is clear that op is willing to refund the amount of Rs. 7, 61,000/- and also no doubt the banking rate of interest at the rate of 8 percent p.a.
But the Ld. Lawyer for the op also submitted that Arbitration proceeding has already been started and for which the present proceeding is not maintainable. But no such order is produced before this Forum by the op and at the same time it is known from the Ld. Lawyers of both the parties that the said proceeding had already been dropped as it was not completed as per order of the higher authority.
Considering all the above fact and circumstances and also considering the present situation of the admission of the Ld. Lawyer for the op that op is willing to return the same and when fact remains op already deceived the complainant by selling the flat to one third party Bijoy Sankar Gupta and possession has been delivered in favour of Bijoy Sankar Gupta on 27.07.2012 then it is clear that it is a clear case of deceitful manner of trade and adoption of unfair trade practice by the op no.1 and no doubt by that act complainant has been deceived and the hope of the complainant has been shattered for adopting unfair trade practice by the op no.1 and truth is that complainant-s total advanced amount of Rs. 76,100/- had been grabbed by the op no.1 and practically he invested the same in his business and got huge profit and grabbed the black money also by selling the said property in favour of that 3rd party showing low price because in the deed very low consideration amount is shown as consideration and it was done for very purpose to deceive the complainant and in the light of the above observation and also considering the materials it is found that complainant is entitled to get back the entire advance amount of Rs. 7,61,000/- with interest w.e.f. 06.09.2010 over the said amount and till its final payment by the op Subir Das Proprietor of M/s Baba Lokenath Construction and op-s Ld. Lawyer admitted that op no.1 is willing to pay the same. But it was submitted by the Ld. Lawyer for the op that interest shall be at the rate of banking interest rate and that has also been accepted and accordingly the complaint succeeds and no doubt complainant has been suffered mentally for not getting the flat even after paying installment of advance amount of Rs. 7, 61,000/- to the op no.1and is also harassed for greedy developer/op no.1.
In the result, complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op no.1 with cost of Rs. 10,000/- and same is allowed exparte against op no.2 without any cost.
Op no.1 is hereby directed to pay/refund advance amount of Rs. 7, 61,000/- and also 8percent interest over the same w.e.f. 06.09.2010 and till its full payment to the complainant.
For adopting unfair trade practice and for deceiving the complainant in such a manner by selling the same to 3rd party at a lowest consideration i.e. Bijoy Sankar Gupta on 27.07.2012 and for causing mental pain and sufferings of the complainant, op shall have to pay punitive damages to the extent of Rs. 25,000/- to the complainant.
For adopting such sort of unfair trade practice and running such a real estate business in a deceitful manner and for deceiving the customers in such a manner, complainant shall have to pay penal damages of Rs. 50,000/- to this Forum and it is imposed only to check such sort of unfair trade practice as adopted by the op no.1 and also for saving the interest of the customer in future from the hands of such sort of dishonest real estate business men and said amount shall be deposited to this Forum.
Op no.1 is hereby directed to comply the entire order and to satisfy the decree within one month from the date of this order failing which for non-compliance and disobeyance of the Forum-s order, op no.1 shall have to pay penal interest at the rate of Rs. 300/- per day till full satisfaction of the decree and if penal interest is collected, same shall be deposited to this Forum also and even for repeated disobeyance of the Forum-s order, op no.1 shall be prosecuted u/s 27 of C.P. Act 1986 for which he shall be liable for that.
