Brief Notes of Argument in Consumer Case by the Consumer / Complainant / The Consumer Protection Act 2019

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at premises being no. 11A, Mirza Ghalib Street, Kolkata – 700 087.

 

                             Complaint Case no. CC/889/2018.

 

In the matter of :-

                                                          Shri Bankim Gain,

                                                                   …… Petitioner

-          Versus –

Shri Basudev Banik and others,

………Opposite Parties

 

BRIEF NOTES OF ARGUMENT

ON BEHALF OF THE PETITIONER

BANKIM GAIN

 

Facts :

 

1. The Opposite Party no. 1, and the Opposite Party no.2, Shri Basudev Banik and Shri Debasish Das, are the Developer, who allured the petitioner to purchase the subjected flat and taken money thereof, time and again.

 

2. The Opposite Parties nos. 3, 4, and 5, are the Land Owners and Co sharer of the Land measuring about more or less 2 ( two ) Cottahs, 10 ½ ( Ten and half ) Chhittaks comprised in Plot no. 962(P) & 963(P), J.L. no. 41, E.P. No. 237, S.P. No. 21, Mouza – Chandpur at present within limits of the Kolkata Municipal Corporation, under the Kolkata Municipal Corporation Ward No. 94, being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being K.M.C. Premises No. 43, Graham Road, Kolkata – 700 033, District South 24 Parganas.

 

3. The Opposite Parties nos. 3, executed and granted Power of Attorney in favour of the Opposite Parties nos. 1, and 2, herein, the said Power of Attorney duly registered with the office of the Additional District Sub Registry office at Alipore, on 10-02-2014, vide Book no. IV, C.D. Volume No. 1, Page Nos. 3132 to 3145, Being No. 00252 for the year 2014.

 

4. The Opposite Parties nos. 3, 4, and 5, were entered into a Development Agreement dated 10-02-2014, with the opposite parties nos. 1, and 2, who agreed thereby to develop and or construct residential building on the given scheduled property as of the Land measuring about more or less 2 ( two ) Cottahs, 10 ½ ( Ten and half ) Chhittaks comprised in Plot no. 962(P) & 963(P), J.L. no. 41, E.P. No. 237, S.P. No. 21, Mouza – Chandpur at present within limits of the Kolkata Municipal Corporation, under the Kolkata Municipal Corporation Ward No. 94, being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being K.M.C. Premises No. 43, Graham Road, Kolkata – 700 033, District South 24 Parganas.

 

5. The opposite parties nos. 1, & 2, were convinced your petitioner Shri Bankim Gain, Son of Late Kunja Behari Gain, for a flat in their project, and whereas your petitioner on good faith and belief agreed to take and therefore consequently in terms of their desire entered into one Agreement for Sale dated 2^nd day of May’ 2015, for The Self Contained flat on first floor, South West Side, measuring about 1000 Square feet, super built up area, be the same a little more or less together with common areas and common facilities consisting of 3 ( three) Bed Rooms, 1 ( one ) Living and Dinning room, 1 ( one ) Kitchen, 2 ( Two ) Bath cum Privy and a Balcony of the said, lying and situated being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being KMC Premises No. 43, Graham Road, Kolkata – 700 033, District – South 24 Parganas, at the total consideration money as of Rs. 40,00,000/- ( Rupees Forty Lakhs ) only.

 

6. The said Agreement for Sale dated 2^nd day of May’ 2015, contained the following covenants :

 

a)    At page number 11 – paragraph number 2 – the simultaneously with the execution of these presents the Purchasers have paid to the Developer / Third Party a sum of Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, as per memo given, here-in-below, and the remaining balance amount amounting to Rs. 30,00,000/- ( Rupees Thirty Lakhs ) only would be paid in terms of the payment Schedule described in the Forth Schedule hereunder written with the knowledge and consent of the party of the First Part. Be it mentioned here that if the purchaser fails to pay the 2 ( Two ) consecutive payment to the Developer in terms of the payment schedule hereunder written then the developer shall have every right to rescind and / or cancel this agreement and bound to refund back the amount paid till that date to the purchaser and the Purchasers shall have no right to raise any objection to that effect;

 

b)   At page number 12 – paragraph number 6 – In that event of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs;

 

c)    At page number 15 – THE FOURTH SCHEDULE ABOVE REFERRED TO (Payment Schedule )

 

1.   At the time of execution of the agreement   Rs. 10,00,000/-

2.   After completion of 1^st floor roof casting      Rs. 3,00,000/-

3.   After completion of 2^nd floor roof casting     Rs. 3,00,000/-

4.   After completion of 3^rd floor roof casting      Rs. 4,00,000/-

5.   After completion of brick works                  Rs. 5,00,000/-

6.   After completion of Flooring                        Rs. 5,00,000/-

7.   At the time of Registration                          Rs. 10,00,000/-

Rs. 40,00,000/-

 

d)   At page number 12 – paragraph number 4 – That it is made that to fulfill the terms, conditions, covenants and provisions, herein, contained the duties, responsibilities and obligations of the Vendors to the Purchasers are joint and several;

 

e)    The said Agreement for Sale dated 2^nd day of May’ 2015, has been notorized as on 21^st day of May’ 2015, before the Learned Sandip Kumar Dey, Notary, Alipore Judges’ Court, District – South 24 Parganas.

 

7. The petitioner had paid the following sum of money in terms of the agreement for sale dated 2^nd day of May’ 2015 :

a)    A sum of Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, on 2/5/2015;

b)   A sum of Rs. 2,75,000/- ( Rupees Two Lakhs and Seventy Five Thousand ) only, on 09/10/2015;

c)    A sum of Ra. 1,25,000/- ( Rupees One Lakh and Twenty Five Thousand ) only;

d)   A sum of Rs. 50,000/- ( Rupees Fifty Thousand ) only, on 02/09/2018.

 

Totaling as of Rs. 14,50,000/- ( Rupees Fourteen Lakhs and Fifty Thousand ) only.

 

8. That during such long tenure since 2^nd day of May’ 2015, to till date three years more or less period has been elapsed though the opposite parties did not complete the said new building premises and more particularly the subjected flat in terms of the agreement for sale dated 2^nd day of May’ 2015, which speaks as the completion occurred within a period of May 2016.

 

9. That as substantial period has ever been elapsed and the work in progress are much suspicious and apprehend able, and as even though your petitioner had made payments on good faith and belief in pursuance of conversation of the opposite parties and as they allured your petitioner, time and again. Therefore your petitioner is in genuinely belief that the opposite parties are not in a position to complete the said subjected flat and to hand over and thus your petitioner invoke the covenant at page number 12 – paragraph number 6, of the said agreement for sale dated 2^nd day of May’ 2015, as to “of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs”.

 

10. That However, your petitioner was  in belief that good sense will prevail on the opposite parties, therefore prior to approaching the authority of Law, your petitioner through his Learned Advocate, served one Legal Notice dated 14-11-2018, on the Opposite Parties, seeking thereby inter-alia refund of money paid by your petitioner to the opposite parties, herein, with appropriate banking rate of interest, thereof. The said notice duly served on the opposite parties, though the opposite parties did not refund any money so far to your petitioner.

 

11. That therefore your petitioner’s seeks to get his money as of Rs. 14,50,000/- ( Rupees Fourteen Lakhs and Fifty Thousand ) only, with appropriate banking rate of interest thereon, preferably 12% rate of interest, calculating from the date of making the payment of such money so far, thereof.

 

During the proceeding :

 

12. On receipt of notice, the Opposite Party no. 1 & 2, has appeared in the present consumer proceeding. The opposite party no.1, has submitted his written version, cited as written version by the Opposite Party no. 1 & 2, though there is no such averment has been given by the Opposite Party no.1, that the Opposite Party no2, has ever been authorized him to give such written version on his behalf also.

 

13. The said written version of the opposite party no.1, is in very formal in nature based on denial only. However the opposite party contended that the subjected flat and premises are ready and he may deliver the possession of the said agreed flat upon receipt of the balance consideration money. The opposite party no.1, even after admitting the facts and contents and purports of the said agreement for sale with the petitioner, failed to answer on allegations raised by the petitioner, which are well founded and established.

 

14. The opposite party no.1, did not produce any document, to show that the subjected flat at the premises is ready for delivery by producing completion certificate of the premises from concerned Civic Body.

 

15. The opposite party no.1, did not put any questionnaire on submissions of EVIDENCE ON AFFIDAVIT by the Petitioner, which in terms of the Law, the Opposite Party admitting the facts and circumstances and the documents, placed by the Petitioner.

 

16. The Other Opposite Party being the Opposite Parties no. 3, 4, and 5, are the Landowners, who opt not to appear even after in receipt of the notices, issued by the Hon’ble Commission. The said remaining Opposite Parties did not appear and did not even submit their written version in the present consumer proceeding.

 

17. The Opposite Parties no. 1, and 2, appeared; But the Opposite Party no.1, filed the Written Version. The Opposite Party no.2, did not submit his any written version.

 

18. The Opposite Parties are not even due diligent to contest the Consumer proceeding, which apparently shows cause of their deficiency in services and unfair trade practices as meant for in the Consumer Protection Act’ 2019.

 

Submissions :

 

19.  The material facts placed by the Petitioner is unchallenged.

 

20.  The Documents relied on by the Petitioner, as (a) Agreement for Sale dated 2^nd day of May’ 2015, (b) Money receipts of payments made by the Petitioner to the Opposite Parties, (c) Legal Notices through the Learned Advocate of the Petitioner to the Opposite Parties, with Post receipts, and Track reports, are sufficient to established the contents & purports of the petitioner as stated in his petition of consumer complaint and his Evidence on Affidavit.

 

21. In the given facts that the subjected flat is still not completed and rest of the consideration payment for such flat, does not arise.

 

22. The agreed terms for completion of the flat, has been violated by the opposite parties.

 

23. The facts and the Documents placed by the Petitioner has not been rebutted by the Opposite Parties.

 

24. It has specifically agreed upon by and between the parties of the said agreement for sale dated 2^nd day of May’ 2015, at page number 12 – paragraph number 6, of the said agreement for sale dated 2^nd day of May’ 2015, as to “of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs”.

 

25. In the given facts, your petitioner is entitled well to get relief in terms of his prayer, placed before the Hon’ble Commission.

 

 

 

 

 

Judicial references :

 

26. In the case of Saradamani Kandappan Vs. S. Rajalakshmi & Ors., [ (2011) 12 SCC 18], the Honble Supreme Court has observed that as a general preposition of law time is not essence of contract unless the parties to the contract intend to make time an essential condition for performance of contract, by expressly providing so or it can be inferred by necessary implication from conduct of the parties. The Apex Court has appears to have said that the said general presumption of law that time is not the essence of a contract that is for sale of immovable properties needs to be revisited as time forms an essential condition for the performance of contract in circumstances of ever-increasing prices of real-estate property which are bound to affect transactions of sale of immovable property. In our considered view, the condition that time shall be the essence of this contract is an essential condition applying to any clause in the Agreement where time is fixed.

 

27.  The Judgment dated 31/07/2017 of the Honble National Commission in Consumer Complaints No. 1131 to 1140 of 2016 ( C.C. No. 1130/2016. Niru Kaushal & Anr. Vs. Unitech Ltd.) and Judgment dated 06/05/2019 in Consumer case No. 1702/2016, [Shalab Nigam Vs. Orris Infrastructure and 3C Company (NCDRC)]. In the cases supra and in many other cases like Complaint No. 347 of 2014, Swarn Talwar and 2 Ors Vs. Unitech Ltd. and other connected consumer complaints. (Judgment dated 14/08/2015), Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters. (Judgment dated 08/06/2015), similar view has been taken. it is observed as under:- It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice.

 

28. In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017], the respondent had paid an amount of Rs. 39,29,280/- in 2006 in terms of letter of allotment dated 20/09/2006. The agreement between the parties envisaged that the appellant would hand over possession of a Row House to the respondent by 31/12/2008 with a grace period of a further six months ending on 30/06/2009. The respondent filed a consumer complaint praying for possession of the Row House and in the alternative for the refund of the amount paid to the developer together with interest at 12% per annum. Compensation of Rs. 20 lakhs was also claimed. The State Commission allowed the complaint by directing the appellant to refund the moneys paid by the respondent together with interest at 12% per annum and compensation of Rs. 5 lakhs. The National Commission, by Judgment dated 21/11/2016, modified the order by reducing the compensation from Rs. 5 lakhs to Rs. 2 lakhs. It was contended before the Honble Supreme Court that the primary relief which was sought in the consumer complaint was for delivery of possession and the completion certificate was received on 29/03/2016, which was intimated to the respondent on 11/04/12016. Before the State Commission, in its written submissions, the appellant had offered possession of the Row House to the respondent. Nearly seven years had elapsed after extended date for the delivery of possession which expired on 30/06/2009. When the buyer was in default, the agreement stipulated that interest at the rate of 18% per annum from the date of default untill the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The Honble Apex Court held that the agreement was evidently one sided since for a default on the part of the buyer, interest at the rate of 18% was liable to be charged but a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. The Honble Supreme Court held that a period of seven years is beyond what is reasonable. The orders passed by the State Commission and the National Commission for refund of moneys were held to be justified. Only the interest of 12% per annum as granted by the National Commission was reduced to 9% per annum. It was contended by the Ld. Counsel for the said OPs that the case supra is distinguished since the period of delay was seven years. In the present case, the delay is more than 3 years and this delay also cannot be considered as negligible. In our considered view, this delayis also not reasonable. In the present case, though the Complainant has prayed for compensation (rent assistance) amount on account of delay in handing over possession, however, the principle prayer is for refund of the amount paid to the said OPs. In the Consumer Case No. 2524 of 2017 (Amit Soni & Anr. Vs. M/s. Umang Realtech Pvt. Ltd. & Anr.), in similar circumstances, the Honble National Commission, by relying upon the Judgment of the Apex Court in the case of Kolkata West International City Pvt. (supra), has allowed the complaint in part directing both the opposite parties jointly and severally to refund the principle amount with interest @ 12% per annum from the respective dates of deposit till the date of realisation together with compensation of Rs. 1,00,000/- and costs of Rs. 25,000/-.