Brief notes of Argument in Consumer Case against Lord Realty Private Limited

 

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

SOUTH 24 PARGANAS

144, Kulpi Rd, Beharapara, Baruipur, West Bengal 700144

 

Consumer Case no. CC/57/2021

 

In the matter of:

Ashish Kumar Ghosh,

……....Petitioner

 

      -versus-

Exparte proceeding

M/s. Lord Realty PrivateLimited, & Anr.,

           ... Opposite Party

 

 

Brief notes of Argument by the Petitioner

Ashish Kumar Ghosh

 

 

Facts ;

 

1. T hrough Letter dated 3^rd April’ 2012, Respondents had allotted Unit No. C-110 in Zone – 7, measuring 4320 Sq. ft. for Lord City Sonarpur at the rate of Rs. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only per Cottaha. The Total Consideration of the Unit ( excepting the charges for Amenities and excluding Registry ) comes to Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, the said allotment Letter has been issued by the respondents only on receipts of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand ) only, being application money, and whereas the rests amount has been decided into 12 (twelve) installments.

 

2. That the Petitioner had paid the total consideration money in the following terms :

1.   26.03.2012 – Money Receipt number 3251 - Rs. 1,80,000/-

2.   23-05-2012 – Money Receipt number 3739 – Rs. 40,000/-

3.   21-04-2012 – Money Receipt Number 3476 – Rs. 40,000/-

4.   22-06-2012 – Money Receipt Number 3976 – Rs. 40,000/-

5.   21-07-2012 – Money Receipt Number 4233 – Rs. 40,000/-

6.   11-09-2012 – Money Receipt Number 4665 – Rs. 40,000/-

7.   26-09-2012 – Money Receipt Number 4786 – Rs. 40,000/-

8.   09-10-2012 – Money Receipt Number 4925 – Rs. 40,000/-

9.   19-11-2012 – Money Receipt Number 5225 – Rs. 40,000/-

10.        26-12-2012 – Money Receipt Number 5561 – Rs. 40,000/-

11.        06-02-2013 – Money Receipt Number 5958 – Rs. 30,000/-

12.        04-02-2013 – Money Receipt Number 5945 – Rs. 10,000/-

13.        22-03-2013 – Money Receipt Number 6928 – Rs. 40,000/-

14.        06-05-2013 – Money Receipt Number 7334 – Rs. 40,000/-

15.        18-05-2013 – Money Receipt Number 7371 – Rs. 40,000/-

16.        06-03-2013 – Money Receipt Number 6805 – Rs. 40,000/-

17.        24-08-2013 – Money Receipt Number 8117 – Rs. 80,000/-

18.        21.09.2013 – Money Receipt number 8408 - Rs. 40,000/-

19.        And Rs. 40,000/- on the occasion of registration of deed of conveyance, totaling as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only.

 

3. That The Respondents entered into an Agreement for Sale dated 17^th day of October’ 2012, with the Petitioner, wherein Respondents are a Developer as described therein and the Petitioner is a Purchaser / Allottee. The said Agreement for Sale dated 17^th day of October’ 2012, contained the following covenants :

 

a)   At page number 2, paragraph number 1 – The Allottee of each unit who intends to acquire the opwnership shall have the choice either to make single storied or two storied building in and over the unit of land according to building plan to be prepared with such modification or alteration as may be deemed fit and proper by the developer or as advised by the architect or as may be sanctioned by the competent authority and the said allottee agrees to be bound thereby. Such construction of building shall be done only by the developer and the purchaser / allottee shall have no right for such job nor shall modify and or change the nature and character of the building in future. In the event of failure to give marketable title to the purchaser/allottee the developer undertakes to refund any amount that will be paid upon execution of these presents to the purchaser/allottee.

 

b)   At page number 2, paragraph number 2 – The Unit Allottee besides acquiring the right of ownership of the said unit and other rights attached thereto subject to registration of the final deed of conveyance after observation of the aforesaid terms along with other terms and conditions mentioned hereunder shall be entitled to have construction either for single storied or two storied building / bunglow.

 

c)   At page number 2, paragraph number 3 – each unit allottee along with the Developer will be entitled to the following easement rights and similarly be subject to similar easements and rights of the other unit – allottees as also the Developer.

 

i)             Right of access and way in common with the developer and / or other unit-allottees at all time with the use and enjoyment of common areas and facilities to which they are entitled to.

ii)           Easements quasi-easements, appendages and appurtenances belonging to or appurtenant to units as usually held used and occupied or known as part or parcel thereof or appertaining thereto provided always that nothing herein contained shall permit the unit-allottee or any person deriving title under him or his agent and invitee to obstruct in any way be vehicle, deposit or materials, rubbish or other wise free passage of other person or persons including the Developer and other unit-allottees entitled to such was as aforesaid.

iii)          The right of protection of the unit by and from all parts of the building/zone so far as they are normally protected.

iv)          The right of flow in common of electricity, water and waste or soil from and to the unit through pipes, drains, wires, and conduits lying or being in under through or over the4 other parts of the zone or unit as appli9cable, so far as may be reasonably necessary for the beneficial use occupation and enjoyment of each unit.

v)           The right with or without workmen and necessary materials to enter from time to time upon the other unit or any part or parts in the unit of other zones for the purpose of rebuilding, repairing, replacing or cleaning so far as may be necessary when the aforesaid job cannot be reasonably carried out without such entry and materials and in all such cases excepting in emergent situation upon giving forty eight hours previous notice in writing of his intention so to enter to the person affected thereby.

 

d)    At page number 7, paragraph number 16 – Possession –

 

a)   Possession will be offered to the allottee sending notice in writing and possession will be delivered on the date mentioned in the notice. If the possession is not taken on that date it will be deemed to have been delivered on the said date.

b)   Outstanding amount if any shall continue to remain the liability of the allottee.

c)   Rates taxes and maintenance charges of the said unit and appurtenances thereto will be the liability of the allottee from possession date as stated above.

 

e)   At page number 7, paragraph number 17 – Conveyance – within thirty days after the developer offering the allottee to take possession of the unit as aforesaid, the allottee shal take steps for getting the conveyance executed and registered bearing all costs of registration and stamp duty along with other incidental expenses.

 

f)    At page number 8, paragraph as – SCHEDULE OF LAND REFERRED TO ABOVE – ALL THAT piece and parcel of land measuring an area of 6 Cottahas ( 4320 Square feet ) more or less being Unit No. C – 110, within Zone – 7, comprised in Dag No. 80, J.L, no. 108, within Mouza Sangur, Police Station – Sonarpur, District – South 24 Parganas.

 

4. Subsequently, on being payment of total consideration money by the Petitioner, the Respondents executed and registered Deed of Conveyance in respect of ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560, in favour of my Client Shri ASHISH KUMAR GHOSH, Son of Late Nripendra Nath Ghosh, residing at premises being number 20/1, Jugipara Road, Debalay Apartment, Flast C – 1, First Floor, Police Station Dum Dum, Kolkata – 700028, vide Being number 07077 for the year 2014, registered in Book – I, CD Volume number 40, Page from 2409 to 2425, registered in District Sub-registrar-IV, South 24 Parganas, wherein acknowledged the total consideration money as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, in pursuance of Agreement for Sale dated 17-10-2012.

 

5. That the Respondents had given a Letter dated 29^th November’ 2013, wherein it is stated as follows :

 

“ with great pleasure, I would like to inform you that the commencement of Lord City Sonarpur Project, is starting on 29^th November’ 2013.

Commencing on 29^th November’ 2013, independent bunglows along with necessary infrastructure will be constructed in phased manner, starting from phase #1 and will be made available as per the sale agreement.

Please note, construction of Model Bunglows of 2,4, and 6 Cottahas at Lord City Sonarpur are already completed and are open for display.

Relevant details will be intimated to you shortly.”

 

6. That the Respondents had given one Letter dated 12^th November’ 2015, wherein it is stated as follows :

 

“ Please refer to our letter under reference wherein we had intimated to you that the commencement of construction work in our Lord City Sonarpur Project was scheduled to begin therefrom starting from phase -1, and shall be made available within the period and other terms morefully mentioned in the Sale Agreement executed between us followed by the construction payment schedule.

 

We hereby regretfully inform you that, although the construction work in our said project has been commenced, but due to departmental delays and certain inevitable circumstances faced by the company ( like major delay in receiving mutation, conversion and sanction documents from the land  and other concerned government department/s, unavailability of skilled labour for better construction work, etc. ) the completion of the desired phase has not been completed nevertheless the same is expected within 12 months ( excluding force majeure delay, if any ) from the date of our instant communication to you and the construction work is now in a speedy process, your respective unit shall be made available upon completion of the same.”

 

7. That one Minutes of Meeting dated 18-11-2018, has been provided by the Respondents, which contained the followings :

a)   Lord will show us Loan sanction documents on or before 05-12-2018, as agreed by both parties;

b)   17^th December’ 2018, Construction will start and by May’ 2019, 100 units will be ready;

c)   Those who are interested to cancel or sell his / her plot Lord Realty Pvt. Limited will pay them from May’ 2019 with 8 % compound interest annually. Any cancellation will be entertained after May’ 2019;

d)   There will be a high tea party at Lord Realty Pvt. Limited at project site ( Sonarpur ) on 25-12-2018 for all buyers or plot owners;

e)   Buyers will see the loan sanction documents by 5^th December 2018 and also commencement of works on 17-12-2018 at Sonarpur, failing to above two conditions. Lord realty will pay immediately to those who are interested to cancel and they will pay with 8% annual compound interest;

f)    Lord will share loan sanction document after 05-12-2018 by mail and will show the original to buyers, who will come to lord’s office.

 

8. That the Petitioner had communicated to the Respondents on many occasions through email and over phone for the mutation of Land as advised by them, and authorized the respondents for causing necessary endavour for the mutation, though nothing yield till date. It is pertinent to states that on all and every occasions, the respondents promised to perform in terms of the Agreement for Sale though respondents could not made available themselves on different pretext therefore the respondents did not deliver the physical possession of the Land and mutation has not been done in favour of the petitioner, till date. Thus the Petitioner have only possessions of some documents and or papers as provided by the respondents. But the respondents have money of the petitioner as taken by the respondents in promises as given by the respondents in terms of the said Agreement for Sale dated 17-10-2012.

 

9. The acts & Omissions of the respondents as described above,  are well established as deficiency in services and unfair trade practices, as meant for in the Consumer Protection Act’ 2019.

 

10. The Petitioner Seeks due performance of the respondents in terms of the Agreement for Sale dated 17-10-2012, by delivering the physical possession of the property and causing necessary endavour for the mutation with the concern department, thereof. The Petitioner served one Legal Notice dated 1^st day of December’ 2020, on the respondents, through Speed Post. The Respondents are well within the knowledge of the contents of such notices, though did not heed to perform, and even did not answer on such notices of the Petitioner.

 

11. Since substantial period is elapsed, your petitioner is genuinely apprehending much about the performances of the respondents in terms of the agreement for sale dated 17-12-2012, and therefore resort this consumer proceeding before the Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24 Parganas.

 

12. The Petitioner’s dream of his own house in the LORD CITY SONARPUR has been shuttered at the instances of willful and deliberate unfair trade practices of the respondents.

 

13. The Petitioner is a victim of the purported acts and deficiency in services at the instances of the respondents and the acts of the respondents as well as the facts are well constitute the deficiency in services on the part of the respondents.

 

14. The Petitioner solely seeks to get delivery of physical possession of the schedule property being ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560, in terms of the Agreement for Sale dated 17^th day of October’ 2012, with all amenities, and conversion, and mutation should perused by the respondents.

 

15. The respondents shall also pay the compensation due to the petitioners for the harassment, troubles, physical inconvenience and mental agony arising directly out of the breach of the agreement and breach of duty on the part of the respondents. The petitioners assesses such loss and damages at Rs. 6,00,000/- ( Rupees Six lakhs ) only.

 

16. That the Petitioner relying on the following documents / Papers :

a)    Letter of Allotment dated 3^rd April 2012;

b)   Schedule for total payment as provided by the respondents;

c)    Letter dated 3^rd April’ 2012, of the Petitioner;

d)   Money Receipts;

e)    Agreement for Sale dated 17^th day of October’ 2012;

f)     Letter dated 29^th November’ 2013;

g)    Deed of Conveyance dated 10^th September’ 2014;

h)   Letter dated 12^th November’ 2015;

i)     Minutes of Meeting dated 18-11-2018;

j)     All communication and authorization for mutation;

k)   Legal Notice dated 1^st day of December’ 2020;

 

17. The Petitioners therefore prayed for :

 

 

a)    To direct the respondents to deliver the physical possession of the schedule property ALL THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560 with all amenities as contended in terms of the Agreement for Sale dated 17-12-2012, to the Petitioner, in the interest of administration of justice;

 

b)   To direct the respondents to cause necessary endavour for conversion and mutation of the name of the Petitioner in respect of the schedule property, with the concern department of the Government, in the interest of administration of justice;

 

c)    And or alternatively, direct the respondents to refund the money being consideration value as of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only, with appropriate banking interest thereon till realization, thereof to the Petitioner in the interest of administration of justice;

 

d)   To direct the respondents to pay compensation, as for the harassment, troubles, loss of business, physical inconvenience and mental agony, suffered by the petitioners from the purported activities and others by the respondents as assessed as ₹ 6,00,000/- ( Rupees Six Lakhs ) only to your petitioners;

 

e)    To grant the cost of the proceedings ;

 

During the Proceeding ;

 

1)   The notices on admission of the consumer complaint has duly been served though the respondents did not appear in the present Consumer Proceeding;

2)   Consequently, the Notice though paper publication in Bengali daily newspaper “aajkal” has been published, though the respondents did not appear in the present consumer proceeding;

3)   Therefore the present consumer proceeding has been directed ex-parte against the respondents, on satisfaction of services of notice upon the respondents by way of paper publication;

4)   The Evidence on affidavit placed by the Complainant is unchallenged and beyond any reasonable doubts, so far.

 

Submissions ;

 

The Complainant paid the consideration money, to the respondents, resulting which the Deed of Conveyance has been executed by the respondents, in favour of the Complainant, though the physical possession has not been delivered by the respondents, as the projects with all amenities as committed by the respondents has not been established yet. The agreement for sale has not been performed in its content and purport by the respondents. Thus the complainant is entitled to get relief in terms of his prayer.

 

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