Order No. 13 dt. 13/06/2018
The case of the complainant in brief is that the complainant through an agent came to learn that a plot of land measuring about 2.5 cotta along with a pucca residential building standing thereon lying and situated at JL No.79, Khatian No.255 and 266, being C.S. Dag No.274, situated at Dengurpara, Bijoynagar, P.S. Kalyani, Dist. Nadia was going to be sold through o.p. no.2 being authorized officer of o.p. no.1. The complainant after discussions with o.p. no.2 and expressed his intention to purchase the property as Private Treaty cell on 20.5.12 and the complainant paid the consideration amount of Rs.4,85,000/-. In spite of depositing the consideration price o.ps. failed to provide the certificate of sale. The complainant in the mean time visited the property and found that there was no pathway for ingress and egress in the said plot of land, for which the complainant declined to purchase the said property and moreover, in the record of right the said land was classified as agricultural in nature and not bastu as represented by o.p. no.2. The complainant after declaration of his desire of not interested to purchase the said property wanted to get back the amount paid by hi,. The o.ps. handed over a cheque of Rs.3,88,000/- after deducting 20% of the amount. The complainant sent lawyer’s notice asking the o.p. no.2 to refund the money, but o.p. no.2 did not pay any heed, for which the complainant filed this case praying for direction upon the o.ps. for refund of the amount of Rs.97,000/- as well as compensation and litigation cost.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that o.p. no.1 is a housing finance company engaged in the business of advancing loans to the public at large for house building and/or purchase. The o.p. no.2 is the authorized officer of o.p. no.1 empowered to carried the procedural activities under the SURFAESI Act. HDFC Ltd. took physical possession of the property measuring 2.5 cottah from his borrower viz. Sikandar Roy. Thereafter o.ps. published a sale notice in daily newspaper on 14.4.10 under the provision of SURFAESI Act. The complainant expressed his intention to purchase the same and the complainant’s father Dipak Majumdar applied for purchasing the said property under the Private Treaty scheme and an agreement was entered into to that effect and as per clause 2 of the terms and conditions governing such sale, whereby it was mentioned that in case sale cannot be completed due to any fault of the applicant HDFC Ltd. shall be entitled to forfeit 25% of the total sale consideration of the secured asset and in the said agreement in point no.4 of the terms and conditions stipulated that the immovable property offered is strictly on ‘as is where is’ and ‘as is what is’ basis which makes it abundantly clear that HDFC Ltd. does not have any liability pertaining to the property in terms of any dues and/or permission and/or condition of the property. The complainant after being satisfied with the terms and conditions of the sale and after inspection duly filled up the application form and the complainant is now estopped from claiming any defect in property and/or service provided by HDFC Ltd. The o.ps. after receiving the letter from the complainant duly replied the same and since as per the terms and conditions of the agreement the amount was deducted of 20% of the amount paid by the complainant, thereby o.ps. stated that there was no deficiency in service or unfair trade practice on the part of o.ps. and as such, o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant entered into an agreement with o.ps. for purchasing the property in question?
- Whether as per the terms and conditions of the said agreement the amount was refunded by o.ps.?
- Whether there was any deficiency in service or unfair trade practice on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant through an agent came to learn that a plot of land measuring about 2.5 cotta along with a pucca residential building standing thereon lying and situated at JL No.79, Khatian No.255 and 266, being C.S. Dag No.274, situated at Dengurpara, Bijoynagar, P.S. Kalyani, Dist. Nadia was going to be sold through o.p. no.2 being authorized officer of o.p. no.1. The complainant after discussions with o.p. no.2 and expressed his intention to purchase the property as Private Treaty cell on 20.5.12 and the complainant paid the consideration amount of Rs.4,85,000/-. In spite of depositing the consideration price o.ps. failed to provide the certificate of sale. The complainant in the mean time visited the property and found that there was no pathway for ingress and egress in the said plot of land, for which the complainant declined to purchase the said property and moreover, in the record of right the said land was classified as agricultural in nature and not bastu as represented by o.p. no.2. The complainant after declaration of his desire of not interested to purchase the said property wanted to get back the amount paid by him. The o.ps. handed over a cheque of Rs.3,88,000/- after deducting 20% of the amount. The complainant sent lawyer’s notice asking the o.p. no.2 to refund the money, but o.p. no.2 did not pay any heed, for which the complainant filed this case praying for direction upon the o.ps. for refund of the amount of Rs.97,000/- as well as compensation and litigation cost.
Ld. lawyer for the o.ps. argued that o.p. no.1 is a housing finance company engaged in the business of advancing loans to the public at large for house building and/or purchase. The o.p. no.2 is the authorized officer of o.p. no.1 empowered to carried the procedural activities under the SURFAESI Act. HDFC Ltd. took physical possession of the property measuring 2.5 cottah from his borrower viz. Sikandar Roy. Thereafter o.ps. published a sale notice in daily newspaper on 14.4.10 under the provision of SURFAESI Act. The complainant expressed his intention to purchase the same and the complainant’s father Dipak Majumdar applied for purchasing the said property under the Private Treaty scheme and an agreement was entered into to that effect and as per clause 2 of the terms and conditions governing such sale, whereby it was mentioned that in case sale cannot be completed due to any fault of the applicant HDFC Ltd. shall be entitled to forfeit 25% of the total sale consideration of the secured asset and in the said agreement in point no.4 of the terms and conditions stipulated that the immovable property offered is strictly on ‘as is where is’ and ‘as is what is’ basis which makes it abundantly clear that HDFC Ltd. does not have any liability pertaining to the property in terms of any dues and/or permission and/or condition of the property. The complainant after being satisfied with the terms and conditions of the sale and after inspection duly filled up the application form and the complainant is now estopped from claiming any defect in property and/or service provided by HDFC Ltd. The o.ps. after receiving the letter from the complainant duly replied the same and since as per the terms and conditions of the agreement the amount was deducted of 20% of the amount paid by the complainant, thereby o.ps. stated that there was no deficiency in service or unfair trade practice on the part of o.ps. and as such, o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant on being attracted with the advertisement in the newspaper applied to o.p. no.2 being the authorized officer of o.p. no.1 for purchasing the property and before purchasing of the said property the complainant was provided all the documents including the title deed as well as the record of right wherefrom it can be evident that the complainant was fully aware regarding the position of the said property in question. It is also an admitted fact that before expressing the willingness of the complainant for purchasing the property the complainant visited the office of o.p. no.1 and met o.p. no.2 and had the discussion with regard to the said property. It is undisputed fact that the consideration price was fixed at Rs.4,85,000/-. The complainant before payment of the said amount entered into an agreement with o.ps. whereby he agreed to purchase the said property and he also agreed that in case of deviating from the proposal for purchasing the property after payment of the said amount the o.ps. will be entitled to get 25% of the sale consideration / sale price deposited with HDFC Ltd. and HDFC Ltd. will be liable to forfeit the said amount. Thereafter the complainant’s father wrote a letter to HDFC Ltd. stating the reasons as to why the complainant was not willing to purchase the said property and wanted to have refund of the money. In this respect o.ps. in their w/v annexed the declaration as mentioned in page 23 of w/v whereby it was clearly stated that HDFC Ltd. will be entitled to forfeit 25% of the sale consideration price deposited with HDFC Ltd. In another annexure attached with w/v at page 26 it was also stated that the complainant was agreeable that he will not claim the aforesaid amount whether directly or indirectly from HDFC Ltd. under any circumstances whatsoever and the said amount is non refundable and the authorized officer was indemnified to have any liability in respect of the said amount if the transaction is not materialized. The series of documents clearly stated that the complainant himself entered into an agreement with o.ps. and also agreed to forfeiture clause as mentioned in the agreement itself which the complainant entered into with o.ps. On the basis of the facts and circumstances of the case since o.ps. refunded the amount after deducting 20% of the amount paid by the complainant, therefore we hold that it cannot be said that there was any deficiency in service or unfair trade practice on the part of o.ps. for which the complainant will be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.505/2013 is dismissed on contest without cost against the o.ps.
