State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. : FA/08/278



DATE OF FILING : 18.07.2008 DATE OF FINAL ORDER: 10.06.2009


APPELLANT



Sri Amitava Panda

S/o Sasanka Sekhar Panda

D-4, Burdge Town, P.O. Midnapore,

P.S. Kotwali, Dist. Paschim Medinipore

West Bengal.



RESPONDENT



Sri Gurmeet Singh

S/o Sri Kartar Singh

Proprietor, Ashlana Builders

At – 203, Golebazar

P.O. & P.S. Kharagpur

Dist. Paschim Medinipore.



BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY

MEMBER : MR. S.COARI



FOR THE PETITIONER / APPELLANT : Mr. P.K.Basu, Ld. Advocate

FOR THE RESPONDENT / O.P.S.: Mr. B.Prosad, Ld. Advocate





: O R D E R :


MR. P.K.CHATTOPADHYAY, LD. MEMBER

This Appeal arose out of judgement and order dt. 17.6.08 in DCDRF Case No. 37/2007 in Paschim Medinipur District Consumer Forum where the complainant’s case was that in terms of a verbal agreement against projected housing construction under the banner of Ashlana Builders owned by OP, he paid advance of Rs. 1,30,000/- through four numbers of Bank Cheque during the period from 6.8.05 to 8.2.06, towards adjustment against the purchase price of one flat under construction. On 20.2.06 an agreement to such effect was executed when total consideration money was fixed at Rs. 5,60,000/-. Towards procurement of remainder amount of the consideration money the complainant applied for bank loan from State Bank of India, Medinipur branch where he deposited requisite documents and was asked to provide ‘no-objection’ certificate from the builder, but the given ‘no objection’ certificate was not provided by the builder on one pretext or other. On 30.7.06 the OP terminated the agreement with false and fictitious allegations when the complainant met the OP and his lawyer. Finally on 14.9.06 another agreement was executed between the complainant and the OP and in terms of the said agreement an amount of Rs. 20,000/- in tranches of Rs. 5,000/- and 15,000/- was deposited against total consideration money of Rs. 6,20,000/-. However, further effort of the complainant to procure loan towards purchase of the given tenement was again thwarted when loan application to GIC Housing Finance Ltd. could not be processed for want of no-objection certificate from the OP. By a letter dt. 6.4.07 the OP terminated the purchase agreement again on some false and fictitious allegation and the entire amount deposited towards purchase of the flat namely Rs. 1,50,000/- was forfeited. Alleging that termination of the purchase agreement was arbitrary and illegal without adequate basis and reason and further stating that confiscation of an amount of Rs. 1,50,000/- was irregular and improper and again stating that non-issue of the no-objection certificate towards obtaining bank loan for remainder part of the payment towards the purchase price of the flat were acts of deficiency of service, the complaint case was lodged before the Ld. Forum. Accordingly, the complainant prayed for execution of the agreement dt. 14.9.06 and for issue of no-objection certificate and in default, for direction towards refund of advance paid for an amount of Rs. 1,50,000/- to the complainant with statutory interest and for Rs. 25,000/- towards compensation and Rs. 5,000/- towards cost.

The OP namely, Mr. Gurmeet Singh, Proprietor of Ashlana Builders, entered appearance and stated inter alia that the complainant had no case because it was he who violated the terms of the agreement in his inability in paying scheduled installments towards purchase price. It was further contended that there was no particular provision for issuance of no-objection certificate on the part of the OP, on which the onus of procuring the loan at mutually agreed terms rested primarily with the complainant on which the OP had no liability. Referring to the payments made through four number of cheques for an amount of Rs. 1,30,000/- it was stated that these payments were given by Tuhina Ghosh, an acquaintance of the complainant, towards payment of her own flat which finally was handed over to her on compliance of the terms of the agreement and, therefore, the allegations made in the complaint were not sustainable and hence, the same deserves to be dismissed.

The Ld. Forum after hearing both sides and after going through evidence passed judgement and order as under :-

“Hence, ordered that the case be and the same is dismissed on contest. However, we do not pass any order as to cost. Thus the case is disposed of.”



Being aggrieved and dissatisfied with the impugned judgement and order the complainant in the Forum namely, Sri Amitava Panda, filed this Appeal stating inter alia that the Ld. Forum below acted illegally with material irregularity in so much so that it did not at all consider the dispute in proper perspective and passed its judgement and order on surmise and conjecture. It was further contended that the payment of consideration money of Rs. 1,50,000/- in all was not taken into proper consideration and without any document or evidence the Ld. Forum wrongly held that the complainant was liable to pay Rs. 6,15,000/- to the Respondent and also passed its order without considering contractual obligation in providing no-objection certificate towards obtaining the loan from the financial institution by the complainant. Calling the impugned judgement and order as bad in law and not sustainable the Appellant prayed for setting aside of the impugned judgement and order and for passing of appropriate order as deemed fit.

The Respondent, namely Sri Gurmeet Singh, Proprietor of Ashlana Builders, the OP in the Ld. Forum below, entered appearance and argued inter alia that the Ld. Forum passed its judgement and order upon due consideration which was patently sustainable and the same shold be affirmed. The Respondent further argued that the complainant/Appellant having deliberately failed to honour the agreement of sale he had no locus standi to file the complaint before the Consumer Forum, particularly upon termination of the agreement. It was further stated that the advance payment towards booking of the flat was made in the name of Smt. Tuhina Ghosh and not for himself and, therefore, termination of the contract for non-payment of the consideration money upon due notice was perfectly in order. It was also stated that U/S 14 of the Consumer Protection Act, 1986 the Ld. Forum has no power like a civil court to declare any notice or steps taken by the OP as bad and illegal and being summary trial courts the Consumer Forums have no power to decide such type of issue. Accordingly, a prayer was made for dismissal of the case when the Respondent/OP had committed no deficiency of service in the matter.
DISCUSSION

A. Admittedly the Appellant/Complainant had paid Rs. 1,50,000/- to the Op with an intent to purchase one residential flat under construction by the OP and admittedly again to such purpose there were two agreements of purchase on successive dates. Against both the agreements payments were received by the Respondent/OP from the Appellant/Complainant, which amounts were debited from his bank account and in both instances the Appellant/Complainant could not make the remainder part of payment of the consideration money within periods stipulated in the agreement. It is also a fact that the Appellant was issued notice for payment as per schedule, which he failed and on both occasions the termination followed.

B. However, on both occasions, after making advance payment towards the consideration money the Appellant tried to procure bank loan towards payment of remainder sum to the Respondent/OP for which other than relevant other papers submission of no-objection certificate from the Respondent/OP, i.e. the Builder/Promoter, was essential which was not provided in spite of efforts by the Appellant. In course of purchase of a tenement/flat the purchaser in most cases requires such no-objection certificates which are routinely provided by the promoters/builders and in this particular case we are unable to find any logic whatsoever towards denial of the no-objection certificate to the Appellant without any ostensible reason or logic, which in any case was never disclosed. Instead, we find that the Respondent had thwarted the genuine effort of the Appellant/Purchaser in procuring the bank loan on his initiative by non-issue of no-objection certificate without assigning any plausible reason or whatsoever and this we find to be an ingredient of deficiency of service perpetrated on the Appellant by the Respondent/OP for which an amount of Rs. 1,50,000/- paid by the Appellant in installments was appropriated.

C. On the issue of Respondent’s stand that the advance claimed to be paid by the Appellant was actually paid towards booking of an ownership tenement by Smt. Tuhina Ghosh, we find that firstly she was not made a party in this case and secondly there was no tangible evidence that such payment in advance was ever made by her or even that the said amount was actually debited on her credit from her bank account. In that view, we are unable to accept the position that the amount of advance of Rs. 1,50,000/- as was claimed to be made by the Appellant was actually made on behalf of Smt. Tuhina Ghosh against allotment of one tenement in her name in the given premises which actually was paid by her and the said tenement was delivered to her.

D. In above view, we find that the impugned judgement and order of the Ld. Forum below was bad and not sustainable and is, therefore, liable to be set aside. We also find that the amount of advance made by the Appellant for an amount of Rs. 1,50,000/- duly paid and accepted by the Respondent towards sale of one tenement to him could not bear fruit for want of non-issue of no-objection certificate on the part of the Respondent, which we deem to be an act of deficiency of service as defined under the provisions of Consumer Protection Act, 1986 and accordingly, we hold that this amount of Rs. 1,50,000/- is required to be refunded by the Respondent/OP with interest and cost of litigation.


ORDER

The Appeal is allowed in part on contest with cost of Rs. 5,000/- (Rupees five thousand only). The impugned judgement and order of the Ld. Forum below is set aside. The Respondent is directed to refund an amount of Rs. 1,50,000/- (Rupees one lakh and fifty thousand only) to the Appellant with interest @ 10% (ten per cent) per annum for the respective periods of deposit to be so paid within 30 (thirty) days from this date of judgement and order and on default, to pay further interest @ 12% (twelve) per cent per annum for the period of default.