State Consumer Disputes Redressal Commission
Mr. Ashis Chakraborty vs Mr. Rajib Chakraborty on 11 August, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/51/2013 1. Mr. Ashis Chakraborty C/o. Mr. A.K. Mitra, DE-84, Narayantala(East), P.S. Baguiati, Kolkata-700 059. ...........Complainant(s) Versus 1. Mr. Rajib Chakraborty Prop. Rounak Construction, 14/B/1 Dr. S.P. Mukherjee Street, Konnagar, Hooghly, Pin - 712 235. 2. Sri Santosh Chakraborty S/o Sachindra Chandra Chakraborty, 14/B/1 Dr. S.P. Mukherjee Street, Konnagar, Hooghly, Pin - 712 235. 3. Madhusudan Chakraborty S/o Sachindra Chandra Chakraborty, 17, Tarasankar Sarani, P.O. Konnagar, P.S. Uttarpara, Dist. Hooghly - 712 235. 4. Sri Sankar Chakraborty S/o Sachindra Chandra Chakraborty, 17, Tarasankar Sarani, P.O. Konnagar, P.S. Uttarpara, Dist. Hooghly - 712 235. 5. Smt. Jyotsna Majumder W/o Ushatanay Majumder, 13, Bagha Jatin Sarani, Nabagram, Dist. Hooghly - 712 246. 6. Smt. Mita Mitra W/o Achintya Mitra, 7, S.C. Chatterjee Lane, P.O. - Konnagar, P.S. - Uttarpara, Dist. Hooghly - 712 235. 7. Smt. Namita Chakraborty W/o Lt. Susen Chakraborty, 17, Tarasankar Sarani, P.O. Konnagar, P.S. Uttarpara, Dist. Hooghly - 712 235. 8. Dilip Chakraborty S/o Lt. Susen Chakraborty, 17, Tarasankar Sarani, P.O. Konnagar, P.S. Uttarpara, Dist. Hooghly - 712 235. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Souvik Mukherjee Mr. Gautam Mukherjee, Advocate For the Opp. Party: Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate Dated : 11 Aug 2016 Final Order / Judgement Date of Filing - 07.03.2013 Date of Final Hearing - 28.07.2016 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint u/s 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the developer/landowners for deficiency in services on the part of them in respect of delivery of possession and execution of a self-contained flat measuring about 684 sq. ft. together with a space for a two-wheeler lying and situated at holding no.17, Tarashankar Sarani, P.S.- Uttarpara, Dist- Hooghly.
In a nutshell, complainant's case is that the Complainant had entered into an Agreement for Sale with the OP no.1/Developer to purchase of a flat as mentioned above at a total consideration of Rs.9,64,440/- @ 1410 per sq. ft. On diverse dates, the Complainant paid to the Opposite Party no.1/Developer a total sum of Rs.3,50,000/- as part consideration amount. The Complainant alleged that at the time of negotiation, it was settled between them that he would take loan from the Bank and for that purpose OP no.1 had agreed to provide all necessary assistance. However, inspite of several requests, OP no.1 avoid the production of original Deed and other documents and on the contrary, on 17.07.2012 issued a notice upon him to make payment of balance consideration amount. Hence the complaint with prayer for reliefs, like - a) a direction upon the OPs to execute and register the Deed of Conveyance alternatively to refund Rs.3,50,000/- with interest, b) to pay damages of Rs.17,70,000/- etc. The Opposite Party nos.1, 2, 5 & 6 by filing a joint written versions disputed the allegations levelled by the Complainant contending, inter alia that the Complainant has failed to make payment as per payment schedule embodied in the Agreement for Sale. As the Complainant defaulted in payment, they cancelled the Agreement and intended to return the amount. The contesting OPs submits that no such stipulation was there in the Agreement for Sale about obtaining loan from the Bank and as such the Complaint should be dismissed.
On the basis of the contention of the parties, the following points are framed for adjudication:-
Is the case maintainable in its present form?
Is there any deficiency in services on the part of the Ops?
Is the complainant entitled to get the relief/reliefs, as prayed for?
During hearing of the case, Shri Ashis Chakraborty, Complainant has filed evidence on affidavit against which questionnaire has been filed by the contesting OPs to which reply has been given by the Complainant.
On behalf of contesting Opposite Parties, Shri Rajib Chakraborty, OP no.1/Developer has tendered evidence on affidavit against which questionnaire has been filed by the Complainant to which reply was given by the OPs.
Besides oral evidence, the parties have relied upon some documents in support of their respective cases.
On the basis of materials on record indicated hereinabove, we shall proceed to discuss how far the complainant has been able to substantiate his case.
DECISION Point Nos.1 to 3:
All the three points are taken up together for the sake of convenience and to skip reiteration.
Admittedly, the OP nos. 2 to 8 are the land owners in respect of a piece of land measuring about 3 cottahs of land lying and situated at holding no.17, Tarashankar Sarani, P.S.- Uttarpara, Dist- Hooghly. On 06.12.2010 the said owners had entered into a Development Agreement with the OP no.1 for raising a multi-storied building in the said premises. On getting information about the same, Complainant entered into a verbal agreement with the OP no.1 to purchase a flat from him and on 02.03.2012 the Complainant paid to OP no.1 a sum of Rs.70,000/- and on 15.03.2012 as sum of Rs.1,30,000/-. On 20.03.2012, a written agreement was executed between the Complainant and OP no.1 whereby the Complainant agreed to purchase a flat measuring about 684 sq. ft. on the first floor and the price of the flat settled at Rs.1410/- per sq. ft. and total price comes to Rs.9,64,440/-. Admittedly, Complainant has paid a total sum of Rs.3,50,000/- as part consideration amount.
On perusal of Agreement for Sale dated 20.03.2012, it reveals that there was a stipulation in the Agreement that the owners and developer shall hand over the possession of the flat together with space for two-wheeler garage and shall execute Deed of Conveyance within 18 months from the date of the Agreement. The payment schedule has been mentioned in schedule 'D' to the Agreement where it has been specifically mentioned that Rs.2,00,000/- only has been paid in advance, Rs.1,00,000/- only will be paid at the time of Agreement and balance amount will be paid only as per requirement of developer. Admittedly, the Complainant could not make payment inspite of intimation given by the developer by their letters dated 17.07.2012 and 09.08.2012. Only on 03.09.2012, the Complainant though his Advocate took the plea of bank loan for the first time. On careful perusal of the Agreement, we do not find any condition that the developer will provide the title Deed or other documents in order to enable the Complainant to obtain loan from the bank.
It is the trite law that the parties are bound by the terms of the Agreement. In fact, both the parties have signed the agreement with open eyes evaluating its pros and cons, more particularly when the Complainant is a graduate, certainly, there is hardly any possibility that without knowing the contents, he put his signature in the agreement. Therefore, the agreement between the parties towers above the rest. Since, there was no such stipulation the ground taken by the Complainant for non-supply of valuable documents could not inspire us.
Mr. Barun Prasad, Ld. Advocate for the contesting OPs placing reliance to two decisions of the National Consumer Commission reported in, Viz. - 1) 2014 (1) CPR 514 (NC) (M/s. JMD Ltd. - Vs. - M/s. Meenu Aggarwal) and 2) 2014 (3) CPR 155 (NC) (Rajasthan Housing Board - Vs. - Smt. Gyanwati Jain) has submitted that a defaulter cannot maintain a consumer complaint. I find sufficient force in the contention of the Ld. Advocate for the OPs as the said submission has been made with the tune of observation of the National Consumer Commission in the above referred cases.
However, the letter dated 12.09.2012 given by the Developer through his Advocate to the Complainant does not appear to us satisfactory. By that letter the OP no.1 has cancelled the agreement on account of default on the part of the Complainant to make payment in accordance with the terms of the Agreement but as there was no stipulation for deduction of any amount from the earnest money in default clause, certainly, the OP no.1 had no occasion to deduct 20% of earnest money. Moreover, when the said letter was not accompanied by a cheque or bank draft in respect of refunded amount certainly it indicates contributory negligence on the part of the developer to fulfil his part of obligations in accordance with the terms of the agreement.
In view of the above, the complainant being consumer within the meaning of Section 2(1)(d) of the Act and in accordance with the object behind the enactment of the Act is entitled to refund of Rs.3,50,000/- together with an interest thereon @12% p.a. from the date of payment of the amount till its full payment. Since, the OP no.1 has not refunded the advanced amount to the Complainant, he must borne the costs of the proceeding which we quantify at Rs.10,000/-.
All the issues are decided and disposed of accordingly.
In the result, case succeeds in part. It is, therefore, ORDERED That the instant consumer complaint is allowed on contest against OP nos. 1, 2 5 & 6 and exparte against the rest with costs of Rs.10,000/- to be paid by the OP no.1 in favour of the Complainant.
The OP no.1 is directed to refund Rs.3,50,000/- along with interest thereon @ 12% p.a. from the date of receipt of the same till its total realisation within thirty days from date, otherwise, Complainant shall have liberty to get the award executed through this Commission. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER