Sri. Apurba Kr. Ghosh…………….. President

 The complainant has filed this application under section 11 and 12 of Consumer Protection Act 1986 and praying for:-

Direction against the OP to pay a sum of Rs. 1,68,000/- together with Rs. 22,000/- for mental agony and all together with 1,90,000/-to the complainant.

BRIEF FACT OF THE COMPLAINT

1. The complainant was searching one 1245 sq ft. flat at Shibmandir and at the relevant time the OP started new flat construction at Shibmandir Sainath More and also offered to sale flat to intending purchaser/ purchasers and the complainant met with the OP and also agreed to purchase a flat for Rs. 22,41,000/-
2. That, a written agreement for sale was executed by and between them on 03.06.2013 when the OP agreed to sale the flat measuring 1245 sq ft. for consideration of Rs. 22,41,000/- for the flat and Rs. 1,00,000/- for the parking space and at the time of execution of the agreement to sale the complainant paid a sum of Rs. 5,00,000/- by issuing a cheque bearing No. 669827 dated 18.04.2013 drawn on SBI, Naxalbari Branch to the OP as advance/ earnest money in respect of the flat who received/ acknowledge the same and also promised to handover the flat within 30 months from the date of agreement after receiving full and final payment.
3. That, after the said agreement the complainant started to live in a rented flat at Green park Apartment of  Pradhannagar as tenant on monthly rent of Rs. 12,000/- keeping in view and faith within 30 months the OP will hand over the new flat to the complainant.
4. That after completion of 30 months the OP failed to handover new flat to the complainant and the complainant on several occasion requested the OP to handover the flat but he never paid any heed to handover the flat in question to the complainant.
5. That on each and every time, the OP neglected to handover the flat within the time to the complainant which was specified in the agreement.
6. That on 06.02.2017 the complainant paid balance consideration amount to the OP and deed of sale was executed and registered in favour of the complainant being deed No. I-429 dated 08.02.2017 book No. 1, Volume No. 0403-2017 , pages from 9462 to 9500 but even after registration of the deed the OP did not hand over the flat to the complainant.
7. That finally on in the month of April, 2017 the OP hand over the flat to the complainant.
8. That as per agreement for sale, the OP was bound to hand over the flat within December 2015, but he handover the same in the month of April, 2017 which is 14 months late and for which within that period the complainant was compelled to pay house rent of Rs. 12000x14=Rs. 1,68,000/- .

In support of the complaint the complainant has filed the following documents:

1. Photocopy of Deed of Sale
2. Photocopy of PAN Cards.

Notice was issued from this Commission. On receipt the OP appeared before this Commission through Vokalatnama, filed written statement, and denied all the material allegations of the complainant. In the W/V the OP has stated that, the complaint is not maintainable in law, as well as in facts/ the complaint is misconceived one and as such the same should be dismissed with cost / the complaint is barred by principle of estoppels, waiver and acquiescence/ the complainant has filed this case by suppressing the material facts and for which is not entitled to get any relief/ the contents of the complaint is false, concocted , fabricated and misleading and the complainant has filed this case for unlawful gain/ the complainant has not come with clean hands. In the W/V the OP has stated that, the statements made in Para No. 1 is not admitted by the OP and the complainant is a quarrelsome woman/ the statement made in Para No. 2 is more or less correct as the complainant was intending purchaser of flat when the OP offered to sale the flat to the complainant for Rs. 22,41,000/- / the statements made in Para No. 3 in the complaint is not fully correct though the fact is that, a written agreement to sale was executed by OP as developer and the owner in one part and the complainant in another part on 03.06.2013 when the OP had agreed to sale the flat measuring 1245 Sq Ft. for a consideration of Rs. 22,41,000/- for the flat and Rs. 1,00,000/- for the parking space and at the time of signing the complainant paid a sum of Rs. 5,00,000/- by cheque bearing No. 669827 dated 18.04.2013 drawn on SBI, Naxalbari Branch to the OP as advanced/ earnest money against the flat and the OP received, accepted and acknowledged the same. The OP has also stated that, he never promised to handover the flat within 30 months from the date of agreement from receiving full and final payment. He also stated that in Para No. 4 of the agreement the OP has stated that, he will hand over the possession ofB scheduled property after receiving the full and final payment as well as registration of theB scheduled property. The OP has also stated that, there was a gross violation regarding payment of the said flat and the complainant on 18.04.2013 made first payment of Rs. 5,00,000/- thereafter on 08.06.2013 gave a cheque of Rs. 3,00,000/- but the said cheque was dishonored but subsequently encashed and on 07.10.2014the complainant was informed through a letter that, the progress of flat No. 5 , first floor was 60% completed so she would have to pay Rs. 6,00,000/- but the complainant did not pay any heed and made payment on 22.01.2015 of Rs. 5,50,000/- but the said cheque was bounced and on request by the complainant the cheque was again presented which was encashed on 12.02.2015. The OP has also stated that on 28.04.2015 the OP informed the complainant that she should make payment of Rs. 1,72,000/- which was due but the complainant ignored the same and finding no other alternative the OP again on 28.10.2015 informed the complainant through letter that her flat was 90 % completed and also requested her to make payment that was due of Rs. 7,57,000/-+ service tax @ 3.50% by November, 2015 positively and there was also mentioned in the letter that, electric connection had been approved by WBSEDCL , as soon as the quotation was received the complainant will be informed for payment of electric connection however the complainant on 21.07.2016 made payment of Rs. 5,00,000/- ignoring the said letter. It is also stated in the W/V that the OP allowed the husband of the complainant to do interior decoration by carpenter of the said flat since 01.10.2015 and from the entry book of gate proves that, the husband of the complainant and the complainant herself on several times entered into the flat before registration and for the conduct of the complainant the OP sustained severe monetary loss of Rs. 1,99,932/-and the sale deed was registered on 06.02.2017 because the complainant was unable to make payment of the flat in due time and she took the flat along with car parking on 19.01.2017. The OP has also stated that, the statement of Para No. 4 of the complaint is totally false, frivolous, concocted and soon after the agreement the complainant started to live in a rented flat at Green Park Apartment at Pradhannagar on monthly rent of Rs. 12,000/- per month with a view and faith within 30 months the OP will hand over a new flat to the complainant. He also stated that, the complainant along with her husband were staying in their own flat at Green Park Apartment at Pradhannagar, Zero Block, 1^st Floor, PO & PS Pradhannagar, Dist.- Darjeeling. In the W/V the OP has denied the statements made in Para No., 5, 6, 8 of the complaint petition and admits the Para No. 7 of the complaint. The OP further stated that, the statement made in Para No. 9 in the complaint is matter of record and the complainant never paid any maintenance charge in respect of flat and total amount was due @ Rs. 6,023/- . By filing the W/V the OP prays for dismissal of this case.

 Having heard the Ld. Advocate of the complainant and on perusal of the Complaint, as well as documents filed by the complainant, written version of the OP the following points are to be decided by this Commission.

                         POINTS FOR CONSIDERATION                 

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 1986 ?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?

DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The complainant was given opportunity to prove its own case through evidence. To prove the case the complainant has filed written evidence in the form of an affidavit. She also filed the Deed of Sale along with photocopies of PAN Cards before this Commission. In the written evidence the complainant has corroborated the statements made in the complaint petition. In her written deposition she also stated on which day the agreement of sale of the flat was executed, on which day she paid the earnest money as well as balance consideration amount to the OP. She also corroborated in her evidence that, subsequently deed of sale was executed in the month of February 2017 and the OP handed over the flat in the month of April 2017. Moreover the complainant has corroborated his statements made in Para No. 9 of where she stated that, she was compelled to reside in a rented house by making payment of Rs. 12,000/- per month and that’s why she sustained a loss of Rs. 1,68,000/- for her stay in the rented premises.

At the time of argument Ld. Advocate of the OP submits that, the complainant has failed to prove this case against the OP by producing valid evidence. He further argued that, due to non payment of the consideration amount within time the deed of sale was not executed and the complainant has violated the terms and conditions of the agreement of sale.

Having heard the Ld. Advocate of both the sides and on perusal of the record it reveals that, the admitted fact of both the party is that the complainant purchased a flat along with car parking from the OP. It is also admitted fact that in respect of the flat as well as car parking the OP executed and registered a deed of sale in favour of the complainant. It is also admitted by both the parties that the possession of the flat as well as guarage has already been given in favour of the complainant prior to fling of this case.

Only allegation/dispute between the parties is that i) Whether the OP violated the terms and conditions of the agreement to sale the flat/car parking by not delivering possession of the flat within 30 months from the date of agreement after receiving the entire consideration amount from the complainant or no?

ii)Whether the complainant was not able to make payment of the consideration amount to the OP in due time?

3. Whether the complainant sustained loss of Rs. 12,000/- x 14 = Rs. 1,68,000/- as she was compelled to stay in a rented premises due to non delivery of possession of the flat within December 2015.

Let us see howfar the complainant has been able to prove the case ro not?  From the entire record it reveals that, there is no dispute between the parties regarding the execution of agreement of sale. It is also admitted by both the parties that as per terms of agreement for sale on receiving the entire consideration amount from the complainant the OP will hand over possession of the flat within 30 months from the date of execution of agreement for sale i.e. within December 2015.  But in the case in hand the complainant has failed to prove the fact that, she paid entire consideration amount for the flat/guarage to the OP within December 2015. On the other hand the complainant  herself in her written notes of argument has stated that, she paid the balance consideration amount to the OP in the month of February 2017. It is also not explained by the complainant either in the complaint or in the written deposition or in the written notes of argument as to how/why the complainant is claiming delivery of possession of flat from the OP prior to February 2017 i.e. prior to payment of entire consideration amount.

It is also not the case of complainant that, she paid entire consideration amount to the OP prior to December 2015.

For the argument shake if we accept the claim of the complainant that, the OP was not receiving money from her prior to February 2017 but it is not explained before this commission by the complainant as to what prevented the complainant to sent money either directly in the Bank Account of the OP or by issuing cheque in favour of the OP prior to December 2015.

Regarding payment of rent of Rs. 1,68,000/- the complainant neither produce any agreement for rent nor produce any rent receipts before this Commission to substantiate its claim. Accordingly without those documents it is very much hard to swallow the claim of the complainant regarding payment of rent.

Considering all we are of the view that, the complainant has not been able to prove the case against the OP.

Hence, it is therefore,

O R D E R E D

That, the instant Consumer case being No. 78/2017 is hereby dismissed on contest but without any cost.

Let a copy of this order be given to the complainant free of cost.