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Sandip Ghosal v/s M/s. Basuki Construction & Others

    First Appeal No. 212 of 2019

    Decided On, 17 November 2021

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER

    For the Appellant: Sourav Guha, Advocate. For the Respondents: None appears.



Judgment Text

Samiksha Bhattacharya

The instant appeal has been filed Under Section 15 of CP Act 1986 by the Complainant namely Mr. Sandeep Ghosal against M/S, Basuki Construction OP No. 1 in the original consumer complaint), a proprietorship unit represented by its sole proprietor Shri Surendra Prasad(OP No. 4 of the consumer complaint) and Shri Tarak Bhattahcarya, Smt. Tripti Chakraborty(Ops No. 2 & 3 of the consumer complaint who are the landowners (all the OPs are hereinafter referred to as ‘OPs’) against the final order and judgement dated 27.12.2018 passed by Ld. DCDRF, Hooghly at Chinsurah in CC/118/2016.

Facts of the case, in brief, are that OPs No. 2 & 3 are the owners of the land of the property mentioned in Schedule ‘A’ of the petition and have appointed opposite party No. 1 as developer by way of power of attorney and the OP No. 4 is its sole proprietor. The OP No. 4 has offered to sell the property Schedule ‘B’ which is in Schedule property ‘A’. The complainant accepted the offer and gave his consent to purchase the said property being described in Schedule ‘B’ @ Rs. 2000/- per sq.ft. for the total super built up area of more or less 750 sq.ft. on certain terms and conditions. The complainant paid Rs. 6,00,000/- to the developer as advance consideration on the date of agreement. It was agreed between the parties that within 90 days from the date of signing of the agreement the complainant will bound to purchase the flat in question by paying the balance consideration and the developer will register the flat upon receiving the total consideration from the complainant. The rest amount will be paid on the date of registration of the said flat or on the date of taking its possession. The complainant will be bound to pay Rs. 20,000/- as an extra amount for bringing the meter of the flat. The complainant will be bound to pay taxes, etc. from the date of taking possession of the property mentioned in Schedule ‘B’ and will take the membership of the owners’ association and will obey its rules and regulations. The complainant was informed by the letter dated 16.07.2015 by the OP No. 4 to comply the Clause 16 of the agreement. As per Clause 16 of the agreement the complainant will pay the additional cost to OP No. 1. Accordingly, Rs. 2,00,000/- was demanded by the OP No.1 and its sole proprietor OP No.4 from the Complainant. Thereafter, on 16.08.2015 the complainant paid Rs. 4,00,000/-. The Complainant has sent advocate’s notice on 07.04.2016 requesting the OP No. 4 to register the flat or refund the amount of Rs. 10,00,000/- to the complainant which was paid by him. It is contended in the petition of the complaint that the Ops 1 & 4 failed the terms of agreement and did not give the possession of the flat to the complainant within the stipulated period. Finding no other alternative the complainant filed the instant case praying for possession of the flat, registration of the flat alongwith Rs. 2,00,000/- for harassment and damages.

The OP No.1 contested the case by filing written version denying all material allegations inter alia stated that at the time of execution of the agreement an amount of Rs. 6,00,000/- was given to the Ops 1 & 4 as advance and it was the terms of the agreement that the rest amount would be given within 90 days from the date of execution of agreement dated 10.06.2015 and thereafter more than 90 days have been elapsed but the complainant did not pay a single farthing in respect of the dues except Rs. 4,00,000/- for extra work.

Upon hearing both the parties the case was dismissed on contest against the Ops. The observation of the Ld. Forum was “The erstwhile Ld. Forum (presently the Ld. DCDR Commission), Hooghly has observed that as per agreement dated 10.06.2015 complainant did not pay the rest amount except Rs. 4,00,000/- on 16.08.2015 and the complainant was out of track till 07.04.2016 . In which the OP has replied on 25.04.2016 where it has been depicted that the complainant has failed and neglected to comply the said agreement and the OP has cancelled the agreement and the amount deposited by the complainant has been forfeited. There is no whisper in record and argument that complainant paid full amount as per agreement as a price of the flat in question or whether complainant made instruction or request to the OP to take the remaining amount by or within 10.09.2015 by taking money and deliver possession and make registration of the flat in favour of the complainant. Accordingly, the complainant failed to prove his case by adducing cogent evidence and action in terms of the agreement because the fact is that none can go beyond the agreement between the parties. Accordingly, it is ordered that the case be and the same is dismissed on contest against the Ops.”

Being aggrieved and dissatisfied with the aforesaid order the complainant filed an instant appeal. On the date of hearing before this Commission none appeared on behalf of the OPs/Respondents. Ld. Advocate for the complainant has submitted that the complainant has paid Rs. 10,00.000/- only. Upon scrutiny of all the materials on record we find that the agreement was executed between the complainant and the OPs on 10.6.2015. As per the agreement the rate per sq.ft. of the flat was fixed @ Rs. 2000/- per sq. ft. ( page No. 2 of the agreement). In the page no. 8 of the agreement it was mentioned in Schedule B that the measurement of the flat was more or less 750 sq.ft. (super built up area). So it is clear that the price of the flat is Rs. 15,00,000/- only. It was also mentioned in the agreement that on the very date of the signing of the agreement Rs.6,00,000/- was paid by the complainant to the opposite parties No. 1 & 4( the developer and its sole proprietor). The Complainant has annexed the money receipt towards payment of above mentioned Rs. 6,00,000/-.

In support of the payment by the complainant Ld. Advocate drew our attention by showing the money receipts issued by the OP No. 1 and signed by the OP No. 4 which clearly showed that on 10.6.2015 i.e. on the date of the agreement the complainant paid Rs. 6,00.000/- and thereafter on 16.08.2015 the complainant paid Rs. 4,00,000/-. The complainant has also annexed the money receipt to that effect. So there is no dispute that the complainant paid Rs. 10,000,00/- in total. The OP No. 1 sent an Advocate’s letter to the complainant demanding Rs. 2,00,000/- for extra work within the seven days from the date of receiving the notice, , in default, the agreement would be treated as null and void. On 16.08.2015 the complainant paid Rs. 4,00,000/-. However, it is astonishing that the OP No. 1 unilaterally wanted to cancel the agreement and the amount paid by the complainant would be forfeited. In their written version the OPs alleged that since within 90 days from the date of signing of the agreement, complainant failed to pay the rest amount toward the consideration, the agreement would be cancelled and the amount paid by the complainant would be forfeited. When the OP sent the Advocate’s notice on 16.07.2015 demanding Rs. 2,00,000/- for the extra work otherwise the agreement would be cancelled, thereafter the complainant paid Rs. 4,00,000/-. The letter dated 16.07.2015 issued by the OP Nos. 1& 4 was without any legal basis since in such way OP Nos. 1 & 4 can not cancel the agreement with the complainant unilaterally. The agreement signed by and between the parties is binding upon both the parties. It was agreed between the parties that the complainant would pay the rest amount within 90 days from the date of singing of the agreement and it was also agreed with the rest amount would be paid by the complainant on the date of registration or on the date of giving the physical possession of the flat to the complainant by the OPs. So, it is obvious that the physical possession and registration ought to be effected with 90 days. The OPs alleged that the complainants had not paid the amount with 90 days. The OPs also failed to register the deed of conveyance of the flat and failed to give the physical possession to the complainant within 90 days. The Ld. District Forum has only observed that the complainant has failed to pay the balance amount within the stipulated period but the Ld. District Forum has not observed that the OPs also failed to comply the terms and conditions of the agreement. We find material irregularity in the order dated 27.12.2018 passed by Ld. DCDRF, Hooghly at Chinsurah in CC/118/2016 which calls for interference from this Commission.

Ld. Advocate for the complainant has submitted before us that the complainant is ready to pay the balance amount of Rs. 5,00,000/- towards the consideration of the flat. Though in several letters issued by the OPs , it was mentioned that the value of the flat was 16,70,000/- , we find the value of the flat is Rs. 15,00,000/- (area 750 sq.ft.@ Rs. 2000/- per sq.ft.). As per agreement the cost of installation of meter board ia Rs. 20,000/- ( Clause No. 4 in Page No.2 of the Agreement) and the cost of extra work which was borne by the Ops No. 1 & 4 is Rs. 2,00,000/- totalling the amount would be Rs. 17,20,000/-. Out of this amount it is admitted fact that the complainant paid Rs. 10,00,000/-. So the balance amount of Rs. 7,20,000/-(Rs. 17,200,000 - Rs.10,00,000) have to be paid by the complainant. By not adhering

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the terms and conditions of the agreement the OPs made deficiency in service and as such the complainant is entitled to get relief. When the order of the Ld. District Forum is erroneous the same is liable to be set aside. Thus the judgement passed by the Ld. DCDRF, Hooghly is hereby set aside. The OPs/Respondents No. 1 & 4 are directed to give the physical possession of the flat and to execute and register the deed of conveyance of the flat in question in favour of the Complainant / Appellant within 60 days from the date of this judgement and on the date of registration the complainant shall pay Rs. 7,20,000/- as balance consideration (towards consideration of the flat, cost of extra work and the cost of meter board) to the OPs/Respondents No. 1 & 4. OPs/Respondents No. 2 & 3 shall cooperate at the time of registration of the deed of conveyance. The cost of registration shall be borne by the complainant himself. There is no order as to cost. The appeal is allowed and disposed of accordingly.
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