In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/71/2022.
Date of filing: 20/04/2022. Date of Final Order: 30/08/2024.
- Sri Himanshu Shekhar Jha,
s/o Sri Pramod Kumar Jha,
- Smt. Riju Kumari,
w/o Sri Himanshu Shekhar Jha,
both of flat no. 101, 1st floor, block-B,
Puja Ganges, 1, Sibtala Ghat Lane,
P.O. Bhadrakali, P.S. Uttarpara,
Dist. Hooghly, PIN. 712232. …..complainants
- M/S Ganges Garden Realtors Private Limited,
Having its office at 37A, Bentinck Street,
-
P.S. Hare Street, Kolkata- 700069,
Represented by-
- Mr. Om Prakash Bharatiya,
s/o not known
r/o 640, Block- O, P.S. New Alipore, Kolkata 700053. .….promoter
- Mr. Nikunj Bharatiya,
s/o Mr. Om Prakash Bharatia,
r/o 640, Block- O, P.S. New Alipore, Kolkata 70005. ….Director
- Mr. Nikhil Bharatiya,
s/o Mr. Om Prakash Bharatia,
r/o 640, Block- O, P.S. New Alipore, Kolkata 700053. ….Director
- Mr. Subhas Paul,
s/o not known,
residing P.S at 18/1, Yadav Das Lane,
Shibpur, 711102 Howrah ……. Director
- Deven Sharma, @ Deben Sharma @ Chinu,
Block - E, 1 Shibtala Ghat Lane,
Bhadrakali P.S.-Uttarpara,
District- Hooghly, 712232.
………Project Incharge Opposite Parties
- M/s Maxworth Industrial Services Limited,
having its office at 27B, Shakespeare Sarani,
P. O. & P. S. Shakespeare Sarani, Kolkata – 700016.
........Land owner/Pro-forma Opposite Party.
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainants stating that complainants entered into an agreement for sale dated 28.5.2018 in respect of the schedule mentioned flat with the OPs and agreed to purchase the said flat for a total sum of Rs.3999500/- only out of which the OP-1 has accepted a sum of Rs.70000/- only on 20.5.2018 vide cheque no.000004 dated.20.5.2018 of HDFC Bank and on 29.5.2018 accepted another cheque no.000001 dt.29.5.2018 of HDFC Bank of Rs.100000/- only from the complainants both against money receipts dated 29.5.2018 issued by one Rajiv Mishra, the authorized person of the OP. Next on 6.62018 the complainants paid in cash a sum of Rs.130000/- only to said Rajiv Mishra, against money receipt dated 6.6.2018 issued by said Rajiv Mishra and further accepted a sum of Rs.3500000/- only on 15.6.2018 through the financer of the complainants i.e. from Indiabulls Housing Finance Limited as the complainants availed house building loan from the said financer. OPs contacted Indiabulls Housing Finance Limited regarding financing for the complainants against the said flat for the said amount of Rs.3500000/- and accordingly the Ops received the said amount through Indiabulls Housing Finance Limited. It is also stated that OPs never supplied any copy of agreement dated 28.5.2018 to the complainants even though it was obligatory on part of the Ops to give or to provide the original copy of such agreement to the complainants.
Complainants have paid a total sum of Rs.3800000/- to the OPs herein till date as the OPs represented before the complainants that the flat is complete and ready for possession. Being induced complainants had paid more than 95% of the agreed total consideration amount to the OPs within 17 days from the date of getting possession of the flat in question by the complainants from the OPs as admitted by the OPs in their notice dated 3.2.2021 and it was agreed that the remaining amount of Rs.199500/- would be paid by the complainants at the time of registration of Deed of conveyance of the flat in a question and the OPs agreed to deliver the official possession letter and completion certificate to the complainants at the same time of registration of the flat concerned. It was agreed by the OPs that they shall get the deed of conveyance registered in favour of the complainants within November 2018 which they neglected and miserably failed. Complainants on several times visited the site office of the OPs located at Puja Ganges, 1, Shibtala Ghat Lane, P.O-Bhadrakali, P.S-Uttarpara, Dist-Hooghly Pin-712232 requesting them to handover the original agreement for sale 28.5.2018 original possession letter, a copy of completion certificate draft copy of proposed deed of conveyance in respect of the said flat and also requested to get the deed of conveyance in respect of the said flat registered in favour of the complainants but in vein as the Ops relied upon the different pretext to delay in providing the above mentioned documents and to delay the registration of deed of conveyance in respect of the said flat. On and from the date of possession till the month of February 2021, the OPs charged maintenance @Rs. 1/- per sq.ft. from complainants which the complainants paid on time. It is a settled principle of law that until the deed of conveyance get registered in the name of the flat buyer, no maintenance cost to be charge from the buyer by the promoter but in this case the promoter charged and accepted the maintenance amount from the complainants and issued money receipts for the same in their favour. On October 18,2020 the OP-6 over phone made such nasty and most defamatory statements using filthy languages by which he threatened the complainant no.1 with dire consequences to kill him and for that the complainant no.1 sent a defamatory notice to the OPs through his ld. advocate and in repercussion to the said notice of the complainant no.1 illegal notice in a very high handed manner terminating the agreement for sale dated 28.5.2018 on some false, fabricated and frivolous grounds.
The complainants stated in their reply dated 18.2.2021 that the incidence of payment of GST amount against the flat in question does not arise at all, as it is a settled principle of law that GST is not applicable on purchase of a completed flat. Further, it is stated that the OPs never demanded the alleged amount of GST from the complainants for it was specifically mentioned in the agreement for sale dated 28.5.2018 that the GST on the flat is payable by the complainant to the OP-1. It is further to submit that the agreement for sale was prepared by the lawyer of the OPs. The complainants agreed to purchase the said flat on 28.5.2018 by virtue of the said agreement for sale dated 28.5.2018 and the possession of the same was delivered to them by the OPs on the very next date, i.e., on 29.5.2018 which reveals the fact that the flat was purchased by the complainants in a completed state. The OPs also allotted a parking space at B-2 which is at Block B of the project Puja Ganges No-1 Shibtala Ghat Lane, P.O-Bhadrakali, P.S-Uttarpara, Dist-Hooghly-712232. The agreement dated 28.5.2018 does not specifically stipulate any payment of GST which again testifies to the fact that the OPs have represented to the complainants that the flat has been completed and no GST is payable for the same.
The demands made in paragraph no.3 of the said notice of the Ops are not correct and the complainants denied and disputed the same as they have already paid all maintenance charges in respect of the said flat till February 2021 vide money receipt dated 1.2.2021 to the OPs. The OPs wrongly and very illegally demanded the payment of Rs.40238/- towards maintenance of the said flat and hence the statement of not paying the alleged amount is absolutely wrong. The OPs very cleverly have knitted the plot to crop up disputes as the OPs had promised the complainants to deliver the falt by November 2018 which the OPs have defaulted. From the statements made above, it is crystal clear that only a sum of Rs.199500/- is due to be paid to the OPs by the complainants and therefore, the question of avoiding payment of balance of Rs.809440/- as illegally claimed by the OPs in the said notice does not arise at all.
An agreement executed amongst the owner, the developer i.e. the OPs herein the complainants herein and their financer i.e. said Indiabulls Housing Finance Limited, the OPs gave all sorts of permissions to the complainants to avail house building loan from the said Indiabulls Housing Finance Limited and the OPs accepted Rs.3500000/- from the complainants through their said financer. Therefore, the question of debarment of mortgage of the said flat as claimed by the OPs in Paragraph 4 of the said notice is absolutely illegal and does not arise at all. The complainants never promised to pay Rs.809440/- to the OPs as claimed in paragraph 5 of the said notice by the OPs as complainants already stated that they have paid the maintenance of the flat concerned till February 2021 and GST is not applicable in the present transaction between the parties herein and complainants categorically gave reply to that effect to the OPs and thus this illegal claim of the OPs are denied and disputed in verbatim. The assertion of the OPs in paragraph 5 of said notice are also not tenable in the light of the above mentioned facts.
The complainants never committed any breach of any clause of the said agreement for sale as claimed by the Ops in paragraph 6 of the said notice and the OPs are trying to dispossess the complainants from the said flat in a very high handed and illegal manner by saying that it is not possible for the OPs to continue with the said agreement for sale. The complainants never raised any unfounded objections and pointless disputes with regard to the payment of maintenance charges towards the flat in question as claimed by the Ops in paragraph 7 of the said notice. Rather, it is the right of the complainant to raise question about quality of materials used in the flat. The said flat being new has seepage from the ceiling and the OPs did not pay attention towards this in spite of repeated requests made by the complainants and abused, threatened the complaints and there after served such illegal notice for cancellation of agreement for sale dated 28.5.2018 instead. Therefore, the question of loss of trust, faith and confidence by the Ops towards the complainants and the question of termination of the said agreement for sale does not arise at all. The OPs never sustained any loss due to any act or omission by the complainants.
The OPs in a very high handed and illegal manners are trying to cancel the said agreement for sale dated 28.5.2018 on some false and fabricated grounds. It is absolutely baseless to say that due to conduct and attitude of the complainants, it is not possible for the OPs to remain in any agreement with the complainants. It is also baseless and untrue to say that there are several breaches of contract on the part of the complainants, and that there is loss of trust, faith and confidence amongst the parties and it is not possible for the OPs to carry on any agreement in respect of the said flat with the complainants. The Ops without giving any chance and opportunity to the complainants to give their explanation against all the alleged and baseless allegations leveled against them in the said notice terminated and cancelled the said agreement and contract with immediate effect absolutely in a very ;illegal and high handed manner and with a malafide intention to grab the said flat after evicting the complainants forcefully and illegally without taking any recourse to law and very illegally asked the complainants to hand over the possession of the said flat to them with an amount of Rs.2330000/- only towards compensation of Rs.6000000/- only after adjusting the sum of Rs.3670000/- only within 15 days from the date of receipt of the said notice. Be it specifically mentioned herein that the complainants then and there gave reply to the said notice through their Ld. Advocate and denied all the false, baseless, frivolous, fabricated, manufactured, concocted and engineered allegations leveled against them by the OPs only the purpose of the said notice. The OPs are not at all entitled to recover any compensation and damage for loss as no such loss or damage was incurred and suffered by the OPs as claimed in paragraph-9 of the said notice.
In the reply of the said illegal notice of the OPs the complainants narrated all the true facts and requested the Ops to serve possession letter, completion certificate, and copy of the proposed deed of conveyance in respect of the said flat to the complainants within 15 days from the date of receipt of the said reply but the Op neither paid any heed to the request of the complainant made in the said reply nor gave any answer till date and on the other hand the OP members in a very high handed manner, directed their worker named Sunil, who is engaged in the job of collecting garbage from all flats and disposing the same in a proper place and proper manner, not to collect garbage from the flat of the complainants and not only that, the men and agents of the OP members stopped receiving maintenance from the complainants in respect of the said flat and whenever the complainants went to the site office of the OP members for paying maintenance, the men and agents of the OP members told the complainants that they cannot accept the maintenance from the complainants as they have been instructed by their employer to do so. The complainants informed about the same to the OP by email and in spite of that the OP failed and neglected to provide services hired or availed of or agreed to be hired or availed of by the complainants till date and for that the complainants suffer and are facing much difficulties in smooth and peaceful enjoyment of their purchased flat. Thus the OP members committed deficiency in services to the complainants till date.
The OP members installed an application namely MY GATE by which the OPs are providing service to the flat owners for the purpose of safety and security. When a visitor comes to the main gate of the building the security guard standing at the main gate sends a photo of the visitor through the said application to the person with whom the visitor wants to meet. In the said application the OP in a very high handed manner has not incorporated the names of the complainants and have shown that said flat of the complainants is empty. Due to above mentioned illegal activities of the OPs, complainants are facing much inconvenience and are compelled to live in dirty and obnoxious atmosphere and are passing their days in a great mental agony and physical harassment. The OPs are solely responsible for depriving the complainants from the peaceful enjoyment of their lawfully owned flat and for the same the OPs are liable to compensate the complainants.
After accepting more than 95% of the total consideration amount of the said flat, the OP members delivered the possession of the flat to the complainant and agreed to execute the Deed of Conveyance in respect of the said flat after giving the possession letter and completion certificate in respect of the said flat to the complainant. The complainant agreed to pay the balance of less then 5% i.e Rs.199500/- only out of the total consideration amount of the said flat at the time of registration of Deed of conveyance in respect of the said flat to the OPs. In spite of several requests made by complainant to the OPs, they did not take any initiative regarding the registration of Deed of conveyance in respect of the said flat in favour of complainants and did not serve any draft copy of proposed deed of conveyance to the complainants till date. The OPs are also failed and neglected to serve copy of agreement for sale, completion certificate and possession letter till date upon complainants and thus they failed to comply with their obligations as agreed with the complainants till date. Not only that, the OPs are also failed to provide generator, intercom services etc. as per the contract to the complainant till date and for that the complainants raised objection against such illegal activities of the OPs and requested the OPs to provide the same as early as possible.
Complainants by their said reply dated 18.2.2021 requested the OPs to serve a copy of the agreement for sale, possession letter, completion certificate and copy of proposed deed of conveyance in respect of the said flat and to provide services of generator and intercom to the complainants within 15 days from the date of receipt of the said reply and gave ultimatum that if the OPs fail to comply with the said request of the complainants, they will take appropriate legal action against the OPs to realize and to recover the amount paid by the complainant with 12% interest and in addition to that Rs.500000/- towards their physical harassment and mental agony and all also the litigation costs from the OPs. Complainants submit that the Govt of West Bengal has reduced the stamp duty and valuation for executing deed of conveyance and due to acts and omissions of the OPs, of complainants will sustain any loss towards registration cost then the OPs jointly and severally will be liable for the same and also will pay the same to the complainants herein. Complainants again by their notice dated 9.8.2021 sent through their Ld. Advocate under Registered Post with A/D wherein the complainants requested OPs to ensure the provision of all services that are provided to the residents of the said building to the complainants, serve letter of possession in their favour in respect of the flat concerned, serve a copy of the completion certificate of the building concern issued by the appropriate authority to the complainants, collect all arrears of maintenance, serve draft copy of proposed deed of conveyance alongwith site plan in respect of the said flat to the complainants, within 15 days from the date of receipt of the said notice and though the OPs received the said notice on 16.8.2021, they did not comply with and pay any heed to the said requests of the complainants till date. Complainants submit that the failure of the OPs to provide occupancy and completion certificate to the complainants is a deficiency in services for which the OPs are liable compensation to the complainants. The complainants are well within their rights as ‘Consumer’ to pray for compensation as a recompense for the consequent liabilities on the part of the OPs.
Complainant filed the complaint petition praying direction upon the opposite parties to hand over the legal possession of the fully constructed and completed flat along with the occupancy certificate and all other promised facilities and amenities which were promised by the ops and to pay the compensation for the entire period of delay in providing services and providing legal possession and completion certificate @ 9% interest per annum on the amount already deposited by the complainants with the ops till the date of actual legal possession including occupancy certificate is obtained by the ops and provided to the complainants and to refund with 12% interest on the maintenance sum collected by the ops from June 2018 to February 2021 or adjust the same with future maintenance of the flat concerned to the paid by the complainants post receipt of occupancy certificate and to pay a sum of Rs. 5,00,000/- towards compensation for mental agony and physical harassment and to undertake the maintenance of the project at its cost till the time the occupancy certificate is obtained and to execute the deed of conveyance and hand over the possession letter, hand over the occupancy certificate and provide the entire amenities to the complainants and to pass any other order as deem fit and proper.
Defense Case:- The opposite party Nos. 1 to 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that from that beginning the complainants’ sole motive is to grab the flat without paying the full consideration money, by hook or crock and for which they have made such type of game plan to harass these answering ops and by the agreement dt. 28.5.2018 the complainants have fully agreed to buy the said flat being no. B 101 on the first floor admeasuring about more or less 1298 sq.ft. of the building together with the share of land and one covered car parking situated at and over the premises no. 1, Shibtala Ghat Lane, Uttarpara, Bhadrakali, Hooghly, 712232 @ 2750 per sq. ft. one covered car parking charges Rs. 1,30,000/- amounting Rs. 39,99,500/- + GST @ 12%= Rs. 44,79,440/- only and as per the said agreement the complainants have paid Rs. 1,70,000/- on 1.6.2018 and Rs. 3500000/- on 15.6.2018 which the complainants have taken loan from the India Bulls. Therefore the complainants have paid Rs. 36,70,000/- only out of the said total sum of Rs. 44,79,440/- including GST and as per the complainants’ request the ops have already handed over the possession of the said flat on 29.5.2018 and since then the complainants have been possessing , residing and occupying the said flat without paying any maintenance charges and thereby the due becomes for said maintenance amounting to Rs. 40,238/- and also furthermore the complainants have deliberately failed to pay the due consideration amount Rs. 8,09,440/- and without the knowledge and consent of the ops the complainants mote illegally have mortgaged the said flat to some stranger third party which is itself a clear breach of trust and agreement on the part of the complainants themselves and even after getting the possession of the said schedule mentioned flat the complainant did not take any initiative to get the deed of conveyance registered and waster the tile fully for the period of 2019, 2020 and only after the letter of termination of the agreement dt. 3.2.2021 was received by the complainants the instant compliant case absolutely on vague notion has been filed for which the ops are entitled to recover compensation towards damages. So, the instant case is liable to be dismissed.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Bhadrakali, P.S-Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears it is admitted fact that the complainants have paid total amount of Rs.3670000/- to the Ops and the Ops have received the said amount. It is also admitted fact that the Ops have also delivered the possession of flat no.B 101 measuring about 1298 sq. ft. over the premises no.1, Shibtala Ghat Lane Bhadrakali Uttarpara, P.S-uttarpara Dist-Hooghly but no possession letter and completion certificate has been handed over to the complainants. There is no dispute over the issue that the deed of conveyance in respect of the above noted flat has not yet been executed and registered. There is no controversy over the issue that the complainants are in possession of the above noted flat of above noted premises.
On the background of the above noted facts and circumstances the complainants have adopted the plea that the Ops are only entitled to get Rs.199500/- from the complainants before execution and registration of the deed of conveyance but on the other hand it is the defence alibi of the Ops that the complainants have not included the GST amount in the total amount of due and as per case of the Ops the total consideration money including 12 % G.S.T is of Rs.4479440/- and the complainants have not yet paid Rs.8,09,440/- to the Ops for which OPs have not yet executed and registered the deed of conveyance. It is also the defence alibi that as the complainants have not paid the said amount of Rs.809440/- the Ops have determined the agreement for sale and so the complainants are not now entitled to get the said flat. But fact remains that this point of contention of the Ops regarding termination of the agreement for sale cannot be accepted as because the agreement for sale is a bi-party agreement and so it cannot be terminated in unilateral way. At the same time the point of contention of the complainants that they are not bound to pay G.S.T can also not be accepted. After invocation of the GST the complainants are duty bound to pay the GST amount to the Ops in respect of the total consideration money of the said flat.
Thus it is crystal clear that the Ops are duty bound to execute and register the deed of conveyance after receiving the balance consideration amount of Rs.809440/- or OPs are also duty bound to refund the amount of Rs.36,70,000/- alongwith interest @ Rs.9 % per annum from the date of filing of this case to the complainants.
A cumulative consideration of the above noted discussion goes to show that the complainants have proved her case in respect of all the points of consideration adopted in this case but the complainants have failed to establish their claim of compensation by way of filing / adducing corroborative evidence. For that reason the complainant is entitled to get relief in this case in respect of all the points of consideration but in part.
In the result it is accordingly
ordered
that the complaint case being no. 71 of 2022 be and the same is allowed on contest but in part.
It is held that the complainants are entitled to get the direction upon the Ops to hand over legal possession and to execute and register deed of conveyance subject to payment of balance consideration of Rs.809440/- to the Ops within 45 days from the date of passing judgment or Ops shall refund the amount of Rs.36,70,000/- alongwith interest @ Rs.9 % per annum as per decision of the Hon’ble Apex Court reported in AIR2022SC1824 within 45 days from the date of passing of this judgment. Otherwise both parties are giving liberty to execute this award as per law.
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 acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website
