IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC 124/2014.
Date of Filing: 05.09.2014. Date of Final Order: 24.03.2017.
Complainant: Debasis Roy, S/O Late Subhas Chandra Roy, 45, K. K. Banjerjee Road,
P.O. & P.S. Berhampore, Dist. Murshidabad. Pin 742101.
-Vs-
Opposite Party: G.C.S.S. Construction Company, 82, Pilphana Road, P.O.&P.S. Berhampore,
Dist. Murshidabad, Represented by proprietors-
- Udita Ghatak(Minor) Minor represented by Mother and Self.
- Nibedita Ghatak, W/O Late Uttam Ghatak.
- Usha Rani Ghatak, W/o Late Bhabani Prosad Ghatak, all of
136/1, R. N. Tagore Road, P.O.& P.S. Berhampore, Murshidabad.
- State Bank of India, Berhampore Branch, 15 Square East Road, Berhampore,
Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya …………………. President.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C. P. Act, 1986 praying for payment of Rs.11 lakhs along with interest @8% to the sum and compensation of Rs.50,000/-.
The complainant’s case, in brief, is that the complainant entered into an agreement with the OP for purchasing a flat on the 4th floor of the proposed building “Golden Heaven” of a consideration money of Rs.14,35,000/- and to that effect agreement for sale was executed on 5.3.2008 and paid Rs.1 lakh towards advance payment and took loan of Rs.10 lakhs from SBI, Berhampore Branch and the OP received the same as part payment and it was also settled that at the time of possession , balance amount of Rs.3.35 lakhs would be paid . But the OP was reluctant to complete the construction. In the year 2012when the OP failed to complete the Flat and failed to deliver the possession, including Registration thereof then the complainant decided to cancel the Agreement and accordingly wrote a letter dt. 10.9.12 to the Opposite Party. The OP No.2 on 10.9.12 informed the Banking Authority that he has accepted the cancellation and also promised to liquidate the loan amount with interest within 2 months from that day. But the Opposite Party failed to keep his promise and as such the complainant is continuing to pay the Loan Amount to the Banking Authority. The complainant suffered a huge financial loss due to laches of the Opposite Party No. 1. Hence, the instant complainant’s case
The written version filed by the OP No.4-SBI, Berhampore Branch, in brief, is that the complainant has taken financial assistance from Op No.4-Bank for purchasing flat from OP No.1. The complainant has filed the instant complaint against OP Nos. 1 to 3 for non-delivery of possession flat and for refund of money already paid for the purpose. The complainant has no claim against OP No.4. Also, the complainant is not a consumer under OP No.4 as per C. P. Act and for that the complaint is not maintainable against OP No.4. Hence, the instant written version.
Upon pleading of both parties the following points have been raised for the disposal of the case.
Points for Decision
- Whether the case is maintainable in its present form and in law?
- Whether the complainant has any cause of action to file the present case?
- Whether the complainant is entitled to get relief as prayed for?
- To what other relief/relies the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 4.
All the points are taken up together for the sake of convenience.
In this case the OP Nos. 1 to 3 have not turned up inspite of receiving notice.
The case has been taken up for hearing ex parte against OP No.1 to 3-owner-cum-Developer.
The case of the complainant is that he entered into an agreement with the OP for purchasing a flat on the 4th floor of the proposed building “Golden Heaven” of a consideration money of Rs.14,35,000/- and to that effect agreement for sale was executed on 5.3.2008 and paid Rs.1 lakh towards advance payment and took loan of Rs.10 lakhs from SBI, Berhampore Branch and the OP received the same as part payment and it was also settled that at the time of possession , balance amount of rs.3.35 lakhs would be paid . But the OP was reluctant to complete the construction. In the year 2012when the OP failed to complete the Flat and failed to deliver the possession, including Registration thereof then the complainant decided to cancel the Agreement and accordingly wrote a letter dt. 10.9.12 to the Opposite Party. The OP No.2 on 10.9.12 informed the Banking Authority that he has accepted the cancellation and also promised to liquidate the loan amount with interest within 2 months from that day. But the Opposite Party failed to keep his promise.
The case of the OP No.4- Bank is that the complainant has taken financial assistance from this Bank for purchasing flat from OP No.1. The complainant has filed the instant complaint against OP Nos. 1 to 3 for non-delivery of possession flat and for refund of money already paid for the purpose. The complainant has no claim against this OP No.4 and he is not a consumer under the OP No.4.
In this case the complainant has filed evidence-on-affidavit along with the relevant documents including agreement for sale, cancellation letter, interest certificate as to bank loan in favour of the complainant, receipt of Rs.1 lakh as advance payment of consideration money and letter issued by Op No.1 to the bank with the declaration that the fund was directly credited into his account and he has promised to liquidate the loan with two months.
There is no document showing that the said loan was liquidated by the OP.
But from the document , interest certificate issued by SBI, Berhampore Branch filed by the complaint it appears that Housing Loan limit sanctioned in favour Debasis Roy, the complainant is Rs.10 lakhs and as on 31.03.2011 total repayment was made only Rs.58,000/-.
Where the complainant has filed the instant case for refund of advance money of Rs.1 lakh and Rs.10 lakhs by way of loan, along with interest and compensation for cancellation of agreement for sale due to non-delivery possession by OP No.1.
From the letter dt. 10.9.12 written by deceased Uttam Kumar Ghatak, Managing Partner on behalf of OPNo.1 Company filed by the complainant it appears that cancellation of the agreement for sale was admitted by them and admitted that the loan sanctioned in favour of the complainant was directly credited into his account and he has promised to liquidate the loan within two months.
Further from the interest certificate as on 31.3.2011 issued by OP No.4-Bank filed by the complainant it appears that the complainant has repaid only Rs.58, 000/- as on 31.3.2011 in his loan account.
The complainant has claimed in this case for refund of his entire loan amount of Rs.10 lakhs along with interest @8% where the interest rate of the loan account is @11.25 % p.a.
But, in this case OP No.4 has not made out any counter claim for refund of the loan amount. Also, there is no whisper in the written version filed by OP no.4 as to whether the said loan was liquidated by the deceased Uttam Kumar Ghatak as per his promise.
Be that as it may, in this case the complainant in his complaint petition prayed for refund of Rs.11 lakhs along with interest @8% being the agreement for sale was cancelled by the complainant by letter dt. 10.9.12 for non-delivery of possession of the flat.
It is clear that loan of Rs.10 Lakhs was sanctioned by OP No.4 Bank and from the document filed by the complainant it is also clear that Rs.58, 000/- was repaid by the complainant towards repayment of loan. It is also clear from the document, agreement for sale filed by the complainant that there is receipt signed by deceased Uttam Ghatak as to receipt of Rs.1 lakh towards advance consideration money for purchasing the flat.
Admittedly, the agreement for sale has now been cancelled and that the complainant has not got delivery of possession of the flat.
It is also clear that the OP No.4 Bank has no counter claim for recovery of loan amount with interest from the complainant from the substituted OP Nos. 1 to 3 of the deceased developer-Uttam Ghatak.
From the above discussions it is clear that the complainant is entitled to get refund of Rs.1, 58,000/- along with interest @8% p.a from the date of filing of this case on 5.9.14 till realization being the agreement for sale has been admittedly cancelled.
On the basis of above discussions we find that all the points are disposed of in part in favour of the complainant and as such the complainant will get Rs.1.58 lakhs only along with interest @8% pa. from the date of filing of this case on 5.9.14 till realization.
Hence,
Ordered
that the Consumer Complaint No. 124/2014 be and the same is hereby allowed ex patre in part against OP Nos.1 to 3 ex parte and dismissed on contest against OP No.4 .
There will be no order as to cost.
The complainant is entitled to get Rs.1.58 lakhs along with interest @8% p.a. from the date of filing of this case on 5.9.14 till realization from OP Nos. 1 to 3.
The Op Nos. 1 to 3 are directed to pay Rs.1.58 lakhs along with interest @8% p.a from the date of filing is case on 5.9.14 till realization to the complainant within two months from the date of receipt of this order, failing which the OP Nos. 1 to 3 are to pay fine @Rs.50/- per day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary/registered post to the concerned parties as per rules, for information and necessary action.
Member President.
