State Consumer Disputes Redressal Commission
Sri Sukdeb Bhuiya vs Sri Tamal Nag on 29 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/34/2012 1. Sri Sukdeb Bhuiya S/o Late Gunodhar Bhuiya, 450, Upen Banerjee Road, P.S. Behala, Kolkata - 700 060. 2. Smt. Soma Bhuiya D/o Sukdeb Bhuiya, 450, Upen Banerjee Road, P.S. Behala, Kolkata - 700 060. ...........Complainant(s) Versus 1. Sri Tamal Nag S/o Late Ram Prasad Nag, partner of M/S Nag Construction, 121, Benamali Naskar Road, Parnashree Pally, P.S. Behala, Kolkata - 700 060. 2. Sri Mrinal Nag S/o Late Ram Prasad Nag, partner of M/S Nag Construction, 121, Benamali Naskar Road, Parnashree Pally, P.S. Behala, Kolkata - 700 060. 3. Sri Dilip Kumar Dasgupta S/o Late Lalit Kumar Dasgupta, 13/1, Mayadasi Road, P.S. Behala, Kolkata - 700 060. 4. Sri Sekhar Kanti Dasgupta S/o Late Lalit Kumar Dasgupta, 13/1, Mayadasi Road, P.S. Behala, Kolkata - 700 060. 5. Miss Sabita Dasgupta D/o Lalit Kumar Dasgupta, 13/1, Mayadasi Road, P.S. Behala, Kolkata - 700 060. 6. Smt. Ratna Dasgupta S/o Late Pradip Kanti Dasgupta, 13/1, Mayadasi Road, P.S. Behala, Kolkata - 700 060. 7. Sri Pritam Dasgupta S/o Late Pradip Kanti Dasgupta, 13/1, Mayadasi Road, P.S. Behala, Kolkata - 700 060. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Mr. Rajarshi Datta, Advocate For the Opp. Party: Mr. Subhasis Mukherjee., Advocate Mr. Subhasis Mukherjee., Advocate ORDER 29.03.2016 MR. UTPAL KUMAR BHATTACHARYA, HON'BLE MEMBER.
This is a complaint case filed by the Complainants stating that the Owners/OPs 3 to 7 in respect of the land, details of which are furnished at schedule-A of the complaint entered into an Agreement with Developers/OPs 1 and 2 for development of the subject land and a G+3 construction thereon.
The developers/OPs 1 and 2, subsequently entered into an Agreement with the Complainants for sale of a flat out of the Developers' share of allocation, details of which are furnished at schedule - B of the complaint at a consideration of Rs. 20,50,000/-.
The Complainants paid a part consideration of Rs.8,00,000/- in cheque and cash. The balance amount was supposed to be paid by the Complainant at the time of Registration and/or handing over possession which, according to the Agreement, was to be done by the Developers/OPs 1 and 2 within 4 months from the date of execution of the Agreement.
The developers / OPs 1 and 2 , however, could not complete the work within the stipulated period of time as per terms of Agreement. The balance consideration was, accordingly, not paid by the Complainants.
The Complainants, allegedly, contacted the Developers but, did not get any specific deadline as to the completion of the construction or delivery of possession. The Developers/OPs 1 and 2, on being asked repeatedly by the Appellants about the tentative date for delivery of possession, allegedly, demanded Rs.30,00,000/- as total consideration in lieu of Rs.20,50,000/- as per Agreement.
The Complainants then, in apprehension that the Developers / OPs 1 and 2 may create a third party interest in the subject flat, filed the instant complaint.
Heard Ld. Advocates on behalf of both the parties. The Ld. Advocate on behalf of the Complainants submitted that the complainants paid a part consideration of Rs.8,00,000/-in cheque and cash out of the total consideration of Rs.20,50,000/-as per Agreement.
It was submitted that the balance consideration which the Complainants were supposed to pay at the time of Registration and/or delivery of possession to be done by the Developers/OPs 1 and 2 within 4 months from the date of Agreement, was not paid since the construction was not completed within the said stipulated period.
The Ld. Advocate contended further that the Developers/OPs 1 and 2, on approach by the Complainants for getting an idea about the tentative date for delivery of possession of the flat, demanded Rs.30,00,000/-as consideration as per present market value. The Complainants, as submitted, became apprehensive of creation of a third party interest in the subject flat and filed the instant complaint with the prayer for early execution and Registration of the Deed of conveyance in respect of the subject flat in their favour by the Developers /OPs 1 and 2 and legal cost and compensation for mental harassment and agony caused to them by the unlawful activities of the Developers /OPs 1 and 2.
The Ld. Advocate continued that the Developers / OPs 1 and 2 moved a Revision Petition before the Hon'ble High Court, Calcutta for vacating the order dated 11/03/13 of this commission for continuing the interim order against creation of the third party interest. The said Revision Petition was dismissed by the Hon'ble High Court, Calcutta as there was no merit in the Revision.
The Ld. Advocate continued to submit that the Complainants are ready to take possession of the flat on immediate payment of balance consideration and prayed for the complaint to be allowed in the above perspective.
The Ld. Advocate for the Developers/ OPs 1 and 2, on the other hand, admitted the receipt of Rs. 8,00,000/- as part consideration from the Complainants by cheque and cash. It was submitted that the Complainants who happened to be the neighbours of the Developers/OPs 1 and 2 and used to maintain a very good relationship with the Developers/OPs 1 and 2, were repeatedly requested to take possession of the subject flat from the Developers / Ops 1 and 2 on payment of the balance consideration. The Complainants failed to make payment of the balance consideration by the given deadline. As submitted, a further period of one month and a half was allowed to the Complainants by the Developers / OPs 1 and 2 in consideration of the warmth in relationship that the Developers / OPs developed due to proximity with the Complainants as neighbours. The Payments, however, could not be made by the Complainants in spite of Developers / OPs 1 and 2 being accommodative towards them as far as practicable. In fact, as submitted, the Complainants were not having any ready money for payment.
The Ld. Advocate, drew the attention of the Bench, to the reply submitted by the Complainants in response to question No. 6 of the questionnaire put to the Complainants by the Developers / OPs 1 and 2. It would be evident from the reply that the Complainants prayed for Home Loan before the Axis Bank. The said Loan Application, as submitted, was not responded to in the affirmative by the Bank which resulted in the fund predicament for the Complainants to pay off the balance consideration.
It was further contended that the Developers / OPs 1 and 2 could not wait for the disposal of the subject flat for an indefinite period as they were in dire necessity of fund. Subsequently, after obtaining green signal from the Complainants, the Developers /OPs 1 and 2 had to dispose of the flat to a third party under compelling circumstances and at a lesser consideration.
The Ld. Advocate further attracted the attention of the Bench to the reply of the Complainants to Question No 10 of the questionnaire of the Developers / OPs 1 and 2 wherefrom it evolves that the Complainants were aware of the fact that a third party was already holding the possession of the subject flat.
The Ld. Advocate pointed out at paragraph 25 at page 12 of the Agreement and contended against violation of the terms of Agreement by the Complainants by filing the instant complaint before completing full payment of consideration.
It was submitted further that at present, since the third party interest has already been created, the Developers / OPs 1 and 2 is not in a position to hand over possession of the subject flat but, they are ready to pay back the part consideration, that the Complainants paid, with interest at the rate as the Commission may direct.
Perused the papers on record. It appears that each of the parties has taken the plea of violation of the terms of Agreement against other. The Complainants contended against the Developers / OPs 1 and 2 for not delivering possession of the flat within the stipulated period of 4 months as per terms of the Agreement.
The Developers / OPs 1 and 2 also pointed out non-fulfilment of the terms of Agreement by the Complainants by way of non- payment of balance consideration which is a pre-requisite for handing over possession of the flat.
It further appears that there is no indication in the record as to the Complainants intention of fulfilling the precondition of paying full consideration for claiming the possession of the flat. The submission of the Developers / OPs 1 and 2 gets corroboration from the "Memo of Consideration" submitted by the Developers / OPs along with their BNA wherein it is shown that the Developers / Ops 1 and 2 received Rs18,00,000/- only from the said third party as part payment out of total consideration Rs.20,00,000/-only which is 50,000/- less than that as per terms of the Agreement with the Appellants. This indicates that the Developers / OPs 1 and 2 had to dispose of the flat under compelling circumstances.
The response to the question No.10 of the questionnaire put to the Complainants by the Developers / OPs 1 and 2 indicates, prima-facie, that the Complainants were in the know about the subject flat being possessed by the third party since 01/12/2011 However, taking into consideration the facts that the part consideration which was in possession of the Developers / OPs 1 and 2 for a long period and the Complainants will not be able to have any flat of the said specification in the same area, we are of the considered view that the complaint should be allowed in part.
Hence ordered that the Developers/OPs 1 and 2 shall refund the part consideration of Rs.8,00,000/- paid to them by the Complainants with simple interest @ 9% p.a from the date of Agreement, that is, 21/06/2011.The Developers / OPs 1 and 2 are further directed to pay to the Complainants the litigation cost of Rs.50,000/-. The entire amount has to be paid to the complainants within 45 days from the date of the instant order, failing which, a further interest @ 9% shall accrue on the entire amount from the date of default till full realization. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER