Dt. of filing- 25/07/2017
Dt. of Judgement- 04/10/2018
Mrs. Balaka Chatterjee, Member.
This petition of complaint is filed U/s. 12 read with Sections 13 of the Consumer Protection Act, 1986 by Soumik Mitr a alleging deficiency in service on the part of the Opposite Parties ( referred as OP hereinafter ) namely (1)Tapas Bhaduri (2) Smt. Jolly Sen (3) Sri Joyjit Sen.
Fact in brief are that the OP Nos. 2 & 3 became owners of a piece of land, measuring about 3 cottah 2 chiitaks and 21 sq.ft lying and situated in R.S. Dag No.818 appertaining to R. S. Khatian No.81, Mouza Kamdahari, J. L. No.49, Touzi No. 14, Pargana Magura, Ward No. 111 , Kolkata Municipal Corporation, Kolkata 0 700 084 beig premises No.20, Kamdahari Purba Para, P. S. formerly Sadar Tollygunge then Jadavpur, thereafter Regent Park and now Bansdroni, District - 24 Parganas by way of inheritance and being desirous to construct a multi storied building thereon the OP Nos. 2 & 3 entered into an Agreement for development on 26.10.2010 with the OP No.1 Developer for constructing a G + lll storied building after obtaining sanctioned building plan from K.M.C. The complainant has stated that as per Clause No.18 of the said Development Agreement dated 26.10.2010 the owner’s got two flats each measuring 564 sq.ft. built up area one on the front side of the third floor which was allocated to the OP No.2 Smt. Jolly Sen and another on the back side of the second floor which was allocated to Sri Joyjit Sen the OP No.3 along with one car parking space. The complainant has further stated that the complainant purchased one self-contained flat from the developer’s allocation at a consideration of RS. 27,00,000/- and an Agreement for Sale had been registered in favour of the complainant in respect of the said flat and subsequently the Deed of Conveyance had also been registered in favour of the complainant and thereafter while enjoying peaceful possession of the flat the complainant approached the developer for purchasing the car parking space belonged to the Developer’s allocation and an Agreement for Sale was executed on 02.02.2014 in respect of the said car parking space measuring about 96 sq.ft. at a consideration amount of Rs.3,00,000/- and the complainant paid Rs. 2,80,000/- towards earnest money by cheque bearing No.150558 dated 02.02.2014 drawn on IDBI Bank, Park Street Branch to the developer and the balance consideration amount was agreed to be paid at the time of delivery of possession and registration of the car parking space. It is stated by the complainant that subsequently the OP No.1 earmarked a space for a car parking which was not at all a sanctioned car parking space as per sanctioned building plan and the complainant had to face stiff opposition from the residents of the aid building regarding usage of that space on the ground that the space was meant for common area and, accordingly, the complainant requested the O. P. Developer to allot a car parking space and to receive balance consideration amount but that request went in vein. It is further stated by the complainant that subsequently he came to know that the sanctioned car parking spaces had been converted to the office room of OP No.1 and there is no scope to handover possession of the said car parking space to any person and the complainant by letter dated 24.01.2017 requested the developer to refund the deposited amount with statutory interest and copy of this letter also forwarded to OP Nos. 2 & 3 which the OP Nos. 2 & 3 refused to receive and OP No.3 in reply requested the complainant and his brother over phone to take refund of the deposited amount by installments and thereafter the OP developer prepared an Agreement and sent it to the complainant wherefrom the complainant came to know that the OP Developer was agreeable to refund Rs.2,80,000/- only out of which Rs. 50,000/- would be paid for cancellation of the earlier agreement and rest of the amount would be paid by 7 post dated cheques and on receiving the said agreement the complainant sent legal notice dated 09.05.2017 and thereby asked the OP to prepare Agreement for Cancellation which was executed but and OP No.1 but did not pay or handover said cheques or refund deposited amount of Rs.2,80,000/-and, therefore, finding no other alternative the complainant by filing the instant consumer complaint prayed for directions upon the OPs to refund Rs.2,80,000/- along with an interest @ 15% p.a. to pay Rs.10,00,000/- towards compensation, to pay Rs. 20,000/- towards cost of litigation and other reliefs.
The complainant annexed photocopies of Developer’s Agreement dt. 26.10.2010. Agreement for Sale dated 02.02.2014, letter dt. 24.01.2017 issued by the complainant to the OP No.1, Advocate’s letter dt. 03.04.2017, 09.05.2017 Deed of Cancellation.
The OP No. 1,2 & 3 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia that the agreement dated 02.02.2014 is a forged document and OP Nos. 2 & 3 did not put their signature thereon but they had been inpleaded as party to this consumer complaint which is totally against provision of law.
The complainant and the OPs adduced evidence followed by cross –examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate on behalf of the complainant narrated the facts mentioned in the petition of complaint.
The complainant relied upon the decision of Hon’ble NCDRC reported in –
- 2017 (10 CPR 377 (NC) [ Jyoti Raman &Anr. –vs. – Parsvnath Developer ]
- 2016(4) CPR 504 (NC) [ M/s. Sovereign Developers and Infrastructure Ltd. –vs. - Ganrav Chakraborty & Anr. ]
- 2016(2) CPR NC [ Dwarkadhish Project Pvt. Ltd. –vs. – Ashok Kumar ].
Ld. Advocate for the OP submits that the consumer complaint suffers from mis-joinder of party and the Agreement upon which the complainant has placed reliance is manufactured document and the amount mentioned therein has been taken for different purpose not for selling the car parking space.
Points for determination :
- Whether there is deficiency in providing service.
- Whether he complainant is entitled to the reliefs as prayed for.
Decision with reasons
Point Nos. 1 & 2 :
Both points are taken up together for comprehensive discussion and decision.
The complainant has claimed that he has entered into an Agreement for Sale on 02.02.2014 with OP No.1 in respect of a car parking space, belongs to OP Developer and paid an amount of Rs. 2,80,000/- out of agreed amount of Rs. 3,00,000/- and agreed to .pay balance consideration amount at the time of delivery of possession and Registration for the car parking space. In support of such contention the complainant filed copy of Agreement for Sale dt. 02.02.2014 wherefrom it appears that an Agreement for Sale was executed by and between the complainant and the OP No.1 in respect of a car parking space measuring about 96 sq.ft. at an agreed consideration amount of Rs. 3,00,000/- . It further appears from memo of consideration that the complainant paid Rs. 2,80,000/-.
The OPs stated that the Agreement for Sale dt. 02.02.2014 is a manufactured document and the signature of OP No.1 is forged one but in support of such averment the OPs neither filed any document nor did pray for appointment of a handwriting expert to substantiate such claim. Therefore, the plea that the document is forged cannot be accepted.
However, there is no denial that the OP has received Rs. 2,80,000/- towards consideration amount though the OP has stated that the purpose of receiving said amount is different. It is, therefore, admitted that the OP received Rs.2,80,000/- paid by the complainant. No documents on behalf of the OP is filed to substantiate that the OP received such amount for different purposes.
On perusal of copy of Agreement for Sale dt. 02.02.2014, it appears that possession of the said car parking space was to be delivered within four months from the date of execution of Agreement for Sale but in said car parking space has not yet been handed over, which amounts to deficiency in service on the part of the OP.
Therefore, in the light of discussion made herein above it will be just and proper if the complainant gets refund of Rs. 2,80,000/- with interest which was paid by the complainant to the Developer. Since interest is a form of compensation we are not inclined to award further compensation separately. Since the developer compelled the complainant to file the instant case they are liable to pay cost of litigation.
In the result, the consumer complaint succeeds.
Hence,
ORDERED
That CC/411/2017 is allowed in part on contest with cost against OP No.1 and dismissed on contest against OP Nos. 2 & 3.
The OP No.1 is directed to refund Rs. 2,80,000/- with interest @ 7% p.a. to be calculated on and from 02.02.2014 till realization within the two months.
The OP No.1 is further directed to pay Rs.10,000/- towards cost of litigation within aforesaid period.
