District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/164/2023
(Date of Filing:-29.08.2023)
- Sri Samir Banerjee and
- Smt. Rita Banerjee,
Both residing at
24, Ferry Ghat Street, New No. 84,
P.O. Telenipara, P.S. Bhadreswar,
Dist. Hooghly, Pin:- 712125.…………..Complainants
- The Director, M. V. Housing Pvt. Ltd.
9, Mangoe Lane, 2nd Floor, Room No. 8
Kolkata-700001, having another office at
107/1A, Raja Ram Mohan Roy Sarani
-
……….Opposite Party
Before:-
Mr. Debasish Bandyopadhyay, President
Mr. Debasis Bhattacharya, Member
Mrs. Babita Choudhuri, Member
PRESENT:
Dtd.21.05.2024
Final Order/Judgment
DEBASIS BHATTACHARYA:- PRESIDING MEMBER
The instant case filed under section 35 (1) (C) of the Consumer Protection Act 2019 arises out of the grievances of the complainants, in the matter of execution of an agreement with the OP for sale of a flat, open terrace area and open car parking space against the total consideration amount of Rs.25,21,750/-, subsequent deecision not to proceed in the matter of purchasing the said property, requesting the OP to make the appropriate refund with interest and to pay the EMI to the Bank from which a loan was taken by the Complainant and finally reluctance and indifference of the OP towards making the refund.
The succinct account of the case is that the Complainants with an intention to purchase a flat, an open terrace area and an open car parking space, executed an agreement for sale on 03.08.2006 with the OP involving a total consideration money of Rs.25,21,750/-.
Allegedly the Complainant paid a further amount of Rs.2,72,443 only in cash to the OP towards installation of transformer, lift and other expenses against which no money receipt was given.
The Complainant claims to have paid Rs.11,58,750/- to the OP on different dates of the year 2006.
Reportedly the Complainant thereafter applied for a home loan to ICICI Bank and the Bank sanctioned a loan of Rs.16,35,443/- in favour of the Complainant on 28.08.2006. The loan was disbursed through three cheques and the OP encashed the amounts accordingly.
However, in course of time, certain unavoidable circumstances viz. serious health reasons, closure of business, lack of fund etc. compelled the Complainants to abandon the plan of purchasing the property.
Consequent upon that, the Complainant approached to the OP for making refund of the amount already paid by the Complainant with applicable interest, for making refund of the EMI already paid to ICICI Bank by the Complainant and for making payment of the remaining EMI to the Bank directly.
However the then Director of the OP Company is reported to have agreed to the proposal and a ‘mutual agreement’ was ‘executed’ on 02.01.2010 and accordingly the OP started paying the Complainant from 02.11.2010 and paid Rs.25,000/- in cash on that very day. After paying Rs.60,000/- during the span of the period from 02.01.2010to 2012 the OP stopped making any further refund.
When repeated telephonic call and persuasions yielded no result, the Complainant was compelled to lodge a complaint with Amherst Street Police Station on 19.03.2014.
Allegedly, the Police Station took no action so far as the complaint was concerned.
This time the OP having been shaken made contact with the Complainant on 18.06.2014 and a meeting was held in the office of the OP on 22.07.2014.
In that meeting the OP agreed to make payment of Rs.16,07,790/- along with interest @10%, comprising of the rest advance amount i.e. Rs.10,98,750/-, EMI already paid by the Complainant to the Bank of Rs.5,09,040/- and also agreed to sale the property to some other party after clearance of the loan of the Bank. This time also a ‘mutual agreement’ was made.
In pursuance of the so called mutual agreement, the OP started payment and made certain refunds amounting to Rs.1,45,000/- in nine installments during the period from 02.11.2010 to 11.05.2021.
Thus, remaining unpaid amount stood at Rs.15,22,800/- and the corresponding interest.
When repeated persuasions in the form of phone calls and visits spread over a long span of time went in vain, the Complainant again lodged a complaint with the Amherst Police Station on 05.08.2023.
Allegedly no action was taken by the P.S. in this regard.
All these developments caused financial loss, mental agony, anxiety and harassment for the Complainants.
Thus there was willful inaction, mala fide intention and unlawful activities on the OP’s part.
Sheer deficiency of service and unfair trade practice on the OP’s part compelled the Complainant to approach to this Commission with a prayer to impose direction upon the OP not only to make the refund of the balance amount of Rs.15,22,800/- along with 10% interest with effect from 2014 but to pay also compensation to the extent of Rs.7,00,000/- , litigation cost of Rs.1,00,000/-, to direct the OP to provide NOC in respect of clearance of the Bank loan, to provide No Due certificate from the OP’s end and any other relief/reliefs as is found fit and proper.
In spite of proper service of the notice the opposite party did not appear before this Commission at any stage of the proceedings of the case. Thus, the case ran ex parte against the opposite party.
The petitioner to substantiate his complaint has annexed copies of documents like 1) the agreement dtd.03.08.2006, 2) money receipts, 3) loan sanction letter of ICICI Bank, 4) forwarding letters of the Bank related to disbursement of cheques, 5) medical documents corroborating ill health of the Complainants, 6) ‘mutual agreements’ regarding proposed refunds made in the letter heads of the OP and 7) complaints made with the Police Station.
Evidence on affidavit and brief notes of argument filed by the complainant are almost a replica of the complainant petition.
In view of the discussion made hereinabove and on examination of available records, it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(7)(ii) of the Consumer Protection Act 2019 are concerned.
The Complainants are residents within the geographical jurisdiction of Hooghly District.
The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/- Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Cause of action firstly arose on 03.08.2006, the date on which the Complainants entered into the agreement with the OP and then on subsequent dates during the period from 2006 to 2014 when a complaint was lodged with the concerned Police Station and again on different dates during the period from 2015 to 2023 when desperate persuasions were made by the Complainant to make contact with the OP and finally on 05.08.2023 when another complaint was lodged with the same Police Station. Thus there was apparently continuing cause of action.
It will be worth mentioning that in spite of proper service of notice the OP preferred to show cold shoulder to the proceedings of the case.
Thus the case was proceeded ex parte against the OP.
Now the issues, whether there was any deficiency on the part of the Opposite parties and whether the Complainant is entitled to get any relief, are taken together for the sake of convenience as the issues are mutually interrelated.
Decision with reasons:-
Materials on records are perused.
It is categorically stated in the agreement signed by both the parties that ‘in the event of the purchaser requesting for any cancellation out of the total consideration amount agreed to be paid by the purchaser, an amount equivalent to 10% of the balance consideration then due shall stand forfeited and the balance amount will be refunded by the Vendor to such purchaser upon the counter sale of such unit taking place or the completion of the new building, whichever be earlier’.
The Complainants it transpires that due to certain unavoidable circumstances were compelled to abandon the plan of purchasing the flat and accordingly approached to the vendor for the refund. The OP it appears initially agreed to make the appropriate refund and made certain payments amounting to Rs.60,000/- only.
However the OP abruptly stopped payments.
Lots and lots of persuasions, negotiations, lodging of complaint with the police authority resulted in further negotiations, another mutual agreement and further payments by the OP amounting to Rs.85,000/-. The last installment of Rs.5000/- was made on 11.05.2021. Since then no further payment was made by the OP.
The loan was sanctioned and disbursed by the Bank in September 2006.
The Complainants appear to have taken the decision of not going any further in the matter of purchasing the flat in the year 2010.
The Complainants though claim to have paid EMI to the extent of Rs.5,09,040/- to the Bank during the period 2006-08, no exhaustive details regarding payment of EMI, the present status of the loan, stance taken by the Bank have been furnished by the Complainant. Question remains that why the Complainants stopped payments of EMI since 2008, whereas the decision of retreat from purchasing the property was taken in 2010. This is also not stated whether the bank has taken any step for recovering the loan in this mean time. This is to mention further that out of the loan disbursed by the Bank, Rs.1,22,443/- was disbursed in favour of M/S ICICI Prudential LIC Ltd.
Here it is not clarified how this disbursement is related to the loan.
Thus, total payment made by the Complainant to the OP supported by money receipts stands at Rs.9,08,750/-
Total loan sanctioned in favour of the Complainants by ICICI Bank is Rs.16,35,443/- out of which cheques issued in favour of the OP is Rs.15,13,000/-
Communications of the OP dated 02.11.2010 and 22.07.2014, which are described as mutual agreement cannot be accepted as mutual agreement as firstly the documents are signed by the OP only and secondly the same is constructed in the letterheads of the OP. Those can only be regarded as commitments made by the OP. However, as the Complainants themselves have annexed the documents with the Complaint petition, it may be taken for granted that they had no objection so far as the contents of the commitments were concerned.
The abovementioned series of events clearly indicates that the OP deviated from the terms and conditions of the sale agreement executed on 03.08.2006 and also from the commitments made in their letterheads on 02.11.2010 and on 22.07.2014.
Thus it is apparent that there was deficiency of service and grossly unfair trade practice on the OP’s part.
However at this juncture, there is apparent lack of transparency so far as the repayment of loan, present status of the loan, steps taken by the Bank in the matter of recovering the loan and issuance of cheque in favour of ICICI Prudential LIC are concerned.
Hence it is
ORDERED
that the Complaint case no.164/2023 be and the same is allowed ex parte but in part.
Directions are hereby imposed by this Commission on the OP to make refund of an amount of Rs.7,63,750/- along with interest @9% for the period from 01.08.2014 to the date of actual payment of the principal amount. This amount is derived from payments made by the Complainant substantiated by money receipts only and refunds made by the OP till date.
Apart from the above, OP is also directed to pay back the amount of Rs.15,13,000/- along with interest @9% for the same period as mentioned in the preceding paragraph to the Complainant, which was received from the Bank by the OP against the loan taken by the complainants.
The Commission, in absence of the present status of the loan, is not in a position to pass any categorical instruction in the matter of clearing of the loan and modalities of clearing of the loan by either of the parties.
Similarly for the same reason no direction can be imposed upon the OP in the matter of paying back the EMI already paid by the Complainant.
Besides, OP is also directed to pay Rs.1,00,000/- to the Complainant for causing mental trauma, agony and harassment and to pay Rs.25,000/- towards litigation cost.
OP is directed to comply with this order within 45 days of the date of this order failing which OP will be liable to pay Rs.50,000/- to the Consumer Legal 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 acknowledgements/sent by ordinary post for information and necessary action.
