Dt. of filing – 12/09/2017
Dt. of Judgement – 28/11/2018
Mrs. Sashi Kala Basu, President
This petition of complaint filed under Section 12 of the Consumer Protection Act, 1986 by Smt. Anjana Dey against Opposite Parties namely 1) Sri Saradindu Das 2) Sri Nandan Banerjee and 3) Bijoy Krishna Das alias Bijay Das alleging deficiency in service on their part.
Complainant’s case in brief is that by an agreement of sale dated 05/08/2013 Opposite Party No.1 & 2 being the power of attorney holder of OP No.3 the owner, agreed to sell a flat measuring 600 Sq ft situated at 2nd floor, southern side of the constructed building at 2/201C, Shree Colony, presently at Patuli within ward number 99, E.P. No.485B, S.P.No.579/2, C.S.Plot No.789(P), 792(P), Mouza – Roypur, J.L.No.33, on a consideration price of Rs.10,00,000/- only . Complainant paid total sum of Rs.6,30,000/- but it was found that only pillars and roof upto the second floor was completed. In the meantime Opposite Party No.2 has informed to Complainant that he had withdrawn from the project. So Complainant approached to OPs to either handover the flat or to return the money, Op No.1 issued a cheque of Rs.2,00,000/- but the same was dishonoured. Complainant however on the request of OP No.1 that he would complete the construction work, further paid Rs.6,500/-. But inspite of it, no further construction work was done and another cheque of Rs.5,00,000/- was given by OP No.1 to Complainant towards return of the money but said cheque was also dishonoured. In the meantime Complainant came to know that the OP No.1 had entered into an agreement of sale dated 25/03/2015 for same flat with one Surajit Karan and piyali Karan on consideration of Rs.13,00,000/-. However OP No.1 again entered into a further agreement with the Complainant on 09/10/2015 with the condition that the Complainant himself would complete the rest of the construction work with the balance money of Rs.3,63,500/- but when the Complainant went with some labour on 15/11/2015 to complete the work, he was restrained by the OP No.3 the owner and his men. OP No.1 inspite of repeated request by the Complainant and also by a notice, has not handed over the possession and thus this complaint is filed praying for directing the Opposite Parties to hand over the possession of the flat, to execute and register the deed, for an order not to transfer the flat to any third person, to pay compensation of Rs. 5,00,000/- and litigation cost of Rs.5,000/-.
OP No.1 and also OP No.2 have contested the case by filing separate written version. It is contended by OP No.1 that he is ready and willing to execute the deed of conveyance in favour of the Complainant but due to negligence on the part of OP No.2 & 3, same could not be done. It is further stated by OP No.1 that the possession of the flat in second floor, southern side has already been handed over to the Complainant and he is in possession of the same. It is also contended by the OP No.1 that the Complainant had filed a case being CC no.394 of 2016 but the same was disposed of by this Forum and an appeal filed by the Complainant is pending before the Hon’ble State Commission.
OP No.2 by filing the written version has contended that he himself was deceived by the OP No.1 so he withdrew himself from the business and had intimated about it to the Complainant.
The case has been heard ex-parte against OP No.3 as he did not take any step on service of notice.
Complainant has annexed the documents with the petition of complaint such as copy of agreements dated 5/08/2013, 17/07/2015, 09/10/2015 , money receipts, copy of dishonoured cheques and bank statement, letter sent to OPs and reply by OP No.2 and order passed in CC/394 of 2016.
So the points require determination:-
- Whether there has been deficiency in service on the part of OPs?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point no.1 & 2
Both these points are taken-up together for discussion in order to avoid repetition.
At the very outset it may be pointed out that admittedly earlier Complaint case being CC no. 394 of 2016 was filed by the Complainant over the self same cause of action but the same was dismissed on the ground that it was filed premature as 10 years of embargo did not expire, A copy of the order is also filed by the Complainant. So present complaint is filed after expiry of the said statutory period. Complainant has also filed a petition stating that no appeal as alleged by OP, is pending before the Hon’ble State Commission.
The agreement entered into between the parties in 2013 is very clear that OP No.1 and 2 being the developer and power of attorney holder of OP No.3 /owner agreed to sell flat /property mentioned in the ‘Kha’ schedule of the agreement to Complainant on consideration price of Rs.10,00,000/- . Said agreement also indicates that the development agreement dated 25/02/2012 was executed between OP No.3 in one part and OP No.1 and 2 on other part. The above mentioned fact is not in dispute as apparent from the written version filed by the OP No.1 and 2. As per terms of the said agreement possession of the flat was to be handed over to the Complainant by 2014. But according to Complainant she has not been handed over the flat. OP No.1 in the written version though has stated that the possession is handed over to Complainant but no document is filed to substantiate the same. On the contrary OP No.1 during evidence remained silent and has nowhere stated that the possession of the flat has been handed over to the Complainant.
Complainant has filed the documents/receipt showing that she has paid Rs.6,36,500/- in total to the OP. A copy of another agreement dated 25/03/2015 is filed which indicates that OP No.1 has entered into agreement with third party to sell the flat on consideration price of Rs.13,00,000/- . OP No.1 could not do so since agreement was already executed in favour of Complainant and part payment towards consideration price was already taken. So conduct of OP No.1 apparently is malafide and he is guilty of adopting unfair trade practice. However it may also be mentioned here that OP No.2 might have withdrawn himself from the business with the OP No.1 but he cannot escape from liability till existence of the agreement of sale executed on 3/08/2013 as OP No.2 was a party to it. Money receipts dated 03/08/2013 of Rs.1,00,000/-, dated 05/08/2013 of Rs.3,00,000/-, dated 11/10/2013 of Rs.15,000/-, dated 04/11/2013 of Rs.85,000/-and dated 01/12/2013 of Rs.1,00,000/- bears the signatures of OP No.1 as well as OP No.2. Thereafter the money has been received by OP No.1 alone but both the OPs are responsible for handing over the possession and for execution and registration of the deed along with OP No.3 the owner.
The agreement dated 09/10/2015 even though was executed agreeing that Complainant could complete the rest of the construction by her own labour but the Complainant could not carry out the work as was resisted by the owner.
So in view of the discussions as highlighted above, Complainant is entitled to the order directing OPs to hand over the possession of the flat and for execution and registration of the deed in the name of the Complainant. She is also entitled to the compensation of Rs.1,00,000/- from the Opposite Party No.1 & 2 of which OP No.1 shall pay Rs.75,000/- and OP No.2 Rs.25,000/- for harassing and causing mental agonyto the Complainant and also as she will have to bear the registration fee as per present market value.
These points are thus answered accordingly.
Hence,
ORDERED
CC/533/2017 is allowed on contest against OP No.1 and 2 and ex-parte against OP No.3. Opposite Parties are directed to hand over the possession of the schedule flat and to execute and register the deed of conveyance in the name of the Complainant within three months on receiving the balance money of Rs.3,63,500/- towards consideration price from the Complainant. OP No.1 and OP No.2 are further directed to pay Rs.75,000/- and Rs.25,000/- respectively as observed above in judgement as compensation and the OPs shall also pay Rs.5,000/-as litigation cost within the aforesaid period of three months.
