Consumer Order in CC/131/2016

 

District Consumer Disputes Redressal Forum South 24 Parganas Baruipur , Kolkata - 700 144.

Complaint Case No. CC/131/2016   1. 1.Sri Arunava Sanyal, S/O Sri Amiya Sanyal. residing at Gorhkhara, Avay Apartment, P.S. Son arpur,Kolkata- 700150. 2. 2. Smt. Jhuma Sanyal, Wife of Sri Arunava Sanyal. residing at Gorhkhara, Avay Apartment, P.S. Son arpur,Kolkata- 700150. ...........Complainant(s) Versus 1. 1. Sri Ramchandra Show, S/O Sri Kapil Show. permanent resident of Purba Baidyapara, P.S.- Sonarpur, Kolkata- 7000150. 2. 2. Sarada Construction. Sonarpur Bazar, Gorhkhara, Kolkata- 700150. ............Opp.Party(s)

BEFORE:     SUBRATA SARKER PRESIDING MEMBER   SMT. JHUNU PRASAD MEMBER

For the Complainant: For the Opp. Party:

Dated : 27 Jul 2017

Final Order / Judgement                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144                 C.C. CASE NO. _131_ OF ___2016_ DATE OF FILING : 28.11.2016                             DATE OF PASSING JUDGEMENT:27.07.2017 Present                      :   President       :                                           Member(s)    :    Jhunu Prasad  &  Subrata Sarker                                                                              COMPLAINANT        :     1. Sri Arunava Sanyal, son of Sri Amiya Sanyal                                             2.  Smt. Jhuma Sanyal, wife of Sri Arunava Sanyal both of Gorhkhara Avay Apartment, P.S Sonarpur, Kol – 150. -VERSUS  - O.P/O.Ps                   :     Sri Ram Chandra Shah, son of Sri Kapil Shaw of Purba Baidyapara, P.S Sonarpur, Kolkata – 150. And presently at 38, Raipur Top Floor, Ramgarh More, (Near West wind), Housing, Kolkata-84. ___________________________________________________________________                                                             J  U  D  G  E  M  E  N  T Jhunu  Prasad, Lady  Member   Interference of this Forum has been sought for by the complainant contending gross negligence, deficiency and unfair trade practice in rendering service towards the complainant by the OPs. In diminutive, the case of the complainant is that, the O.P No 1 is the owner of a land measuring about more or less 3 cottah 8 chittak 0 Sq. Ft. lying and situated at Mouza- Sonarpur, J.L. No.39 RS Dag No 270(p) under R.S. Khatian No 577, holding No. purbadaspara, P.S. Sonarpur, under Rajpur-Sonarpur municipality ward No 12. Dist South 24 PGs. The O.P No. 1. is carrying a business of promoter and developer under name and style of Sarada Construction as O.P No.2. The O.P No1 wants to develop the said land measuring about more or less 2 cottah 13 chittak after obtaining sanctioned plan and thereafter to dismantle the dilapidated walls lying in the said landed property for construction. Complainant entered in to an ‘Agreement for sale’ on 22.07.2012 with the O.Ps which was executed on the same date i.e. on 22.07.2012 and being intended to purchase one flat on 2nd floor measuring about 700 Sq. Ft more or less super built up area of the above mentioned premises in the new building to be constructed in favour of the complainant within 24 months from the date ‘Agreement for sale’. Accordingly the complainant paid of Rs. 7,50,000/- to the O.P No.1 on different dates by cash and by cheque. In spite of receiving the said money of Rs. 7,50,000/- out of total consideration of Rs.12lacs, the O.P No.1 neither developed the said land nor constructed the building. Thereafter on 27.02.2015 the O.P No.1 returned the amount of Rs. 2,000,00/- to  the complainant through cheque being No.000328, drawn on Union bank, Sonarpur branch, but the said cheque was dishonoured due to ‘Insufficient Fund’. Thereafter the complainant several times visited the office of the O.P and requested to hand over the flat or refund the amount which has been received from the complainant, but till date the O.P No.1 neither constructed the said flat nor refunded the said amount of Rs.7,50,000/- and the O.P No.1 palpably violating the said’ Agreement for sale’ dated 22.07.2012.  Having no other alternative the complainant filed this instant complaint for getting relief as prayed for. Issued notice upon the O.Ps. In spite receiving notice, the O.Ps did not appear to controvert and to refute the case. So the complaint case is heard exparte against the O.P.                             Points for Determination :- 1. Was there any negligence or deficiency in service on the part of the O.P? 2. Is the complainant entitled to get relief as prayed for?                           Decision with Reasons:-             At the time of argument the complainant filed affidavit – in - chief, BNA and some Xerox copies of document to support of his contention.             All points are taken up together for consideration for the sake of argument and brevity.             We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the complainant and critically perused all the material documents on record.             On overall evaluation of the argument advanced by the Ld. Advocate of the complainant and on critical appreciation to the case record, it is evident that admittedly one ‘Agreement for sale’ was executed by and between the complainant as ‘purchaser’ and the O.P.No.1 as ‘vendor’ on 22.07.2012 for purchasing a self contained residential flat measuring about 700 Sq. Ft. as mentioned in the ‘H’ schedule of the flat of the complaint, for total consideration amount of Rs. 12,00,00/- out of which the complainant paid of Rs7,50,000/-.             Now, the fact remains that after stipulated period i.e. within 24 months from the date of ‘Agreement for sale’ the O.P neither developed the said land nor constructed the new building.             From perusal of the record, it is also evident that the O.P refunded Rs.2,000,00/- to the complainant by way of cheque No. 000328 dated 27.02.2015 which was dishonoured due to ‘Insufficient fund’.             Therefore, from the discussions made above, it is crystal clear that the O.P deliberately failed to hand over the said flat in question to the complainant without showing any cogent reason, for which as per ‘Agreement for sale’ the O.Ps are liable to refund the entire earnest money to the complainant which he has been paid.             In this scenario the Hon’ble  National Commission also observed that when a developer fails to perform his duty as per ‘Agreement for sale’ and delivered possession within the stipulated time i.e 24 months from the date ‘Agreement for sale’, purchaser has discretion either to take possession of flat or ask for refund of deposited amount with interest.             Accordingly we hold that the purchaser’s claim for refund of money is justified and entitled to take back the deposited money and compensation.             Moreover, all the allegations made by the complainant are unchallenged, though the O.Ps got chance to contest and to refute by filing the written version before the Forum, but the O.Ps deliberately failed to file the same. Therefore, there are no reasons to disbelieve the unchallenged testimony of the complainant’s case.              In light of the analysis, we are of the unanimous opinion that the O.Ps committed gross deficiency in service under the per view of section 2 (1)(g) of C.P. Act 1986.              Therefore, we have no hesitation to hold that the complainant has successfully proved his case and is entitled to get the relief as above from the OPs. and consequently the points for determination are decided in affirmative.              In short, the complainant deserves success.             In the result, we proceed to pass                                                           ORDER                         That the complaint be and the same is allowed exparte against the O.P. with cost of Rs. 2,000/-                      That the O.P is directed to refund money of Rs.7,50,000/- to the complainants which has been paid as advance money to the OP within one month from the date of this order along with interest @10% p.a. effective from the date of final payment till realisation.             That the O.P is also directed to pay compensation of Rs.1,50,000/- for mental agony and harassment and Rs.5,000/- as litigation cost to the complainant within one month from the date of this order.             In the event of non compliance of any portion of the order by any of the OPs. within a period of one month from the date of this order, the defaulting O.P shall have to pay a sum of Rs.100/-per day, till its realization, as punitive damage, which amount shall be deposited by the O.P in the State Consumer Welfare Fund.             Let a plain copy of the order be supplied to the parties free of cost when applied for.                  Member                                                       Member   Dictated and corrected by me                                                         Member                               The judgment in separate sheet is ready and is delivered in open Forum. As it is ,                                                             ORDER                         That the complaint be and the same is allowed exparte against the O.P. with cost of Rs. 2,000/-                      That the O.P is directed to refund money of Rs.7,50,000/- to the complainants which has been paid as advance money to the OP within one month from the date of this order along with interest @10% p.a. effective from the date of final payment till realisation.             That the O.P is also directed to pay compensation of Rs.1,50,000/- for mental agony and harassment and Rs.5,000/- as litigation cost to the complainant within one month from the date of this order.             In the event of non compliance of any portion of the order by any of the OPs. within a period of one month from the date of this order, the defaulting O.P shall have to pay a sum of Rs.100/-per day, till its realization, as punitive damage, which amount shall be deposited by the O.P in the State Consumer Welfare Fund.             Let a plain copy of the order be supplied to the parties free of cost when applied for.                  Member                                                       Member

[ SUBRATA SARKER] PRESIDING MEMBER   [ SMT. JHUNU PRASAD] MEMBER

 

Consumer case Judgment in Complaint Case No. CC/88/2017

 

District Consumer Disputes Redressal Forum South 24 Parganas Baruipur , Kolkata - 700 144.

Complaint Case No. CC/88/2017 ( Date of Filing : 12 Jul 2017 )   1. 1.Sri Sanjib Karmakar, S/O Sri Dulal Chandra Karmakar residing at C/O, Nirmal Dey, Nowapara, 3rd Lane, P.O. and P.S. Sonarpur, Kolkata- 700150. 2. 2. Smt. Kakali Karmakar, Wife of Sri Sanjib Karmakar. residing at C/O, Nirmal Dey, Nowapara, 3rd Lane, P.O. and P.S. Sonarpur, Kolkata- 700150. ...........Complainant(s) Versus 1. 1. Smt. Baishali Ghosh, ( Nee Mukherjee ) Wife of Sri Tapan Ghosh. residing at 109, Agore Sarani Sarada Complex, P.O. Rajpur, P.S. Sonarpur, Kolkata- 700149. 2. 2.Smt. Piyali Basu, ( Nee Mukherjee ) Wife of Sri Abhijit Basu. residing at 109, Agore Sarani, Sarada Complex, P.O. Rajpur, P.S. Sonarpur, Kolkata- 700149. 3. 3. Sri Ram Chandra Shaw, S/O Kapil Shaw. residing at 38, Raipur Road, P.O. Garia, P.S. Jadavpur, Kolkata- 700084. 4. 4. M/S. Sarada Construction A sole proprietorship Firm represented through Sri Ram Chandra Shaw. Office at East Baidya Para, P.O. and P.S. Sonarpur, Kolkata- 700150. 5. . . ............Opp.Party(s)

BEFORE:     ANANTA KUMAR KAPRI PRESIDENT   SMT. JHUNU PRASAD MEMBER

For the Complainant: For the Opp. Party:

Dated : 28 Aug 2019

Final Order / Judgement     DISTRICT CONSUMER DISPUTES REDRESSAL FORUM      SOUTH 24 – PARGANAS,                                             AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144               C.C. CASE NO. 88 OF 2017 DATE OF FILING: 12.07.2017                                  DATE OF JUDGEMENT: 28.08.2019    Present                      :   President       :   Ananta Kumar Kapri                                         Member         :   Jhunu Prasad                             COMPLAINANT              :  1. Sri Sanjib Karmakar, S/O – Sri Dulal Chandra Karmakar.                                            2. Smt. Kakali Karmakar, W/O - Sri Sanjib Karmakar.    Both residing at C/o. Nirmal Dey, Nowapara 3rd Lane, P.O. + P.S. – Sonarpur, Kolkata  – 700 150.  VERSUS   -   O.P/O.Ps                         :  1.  Smt. Baishali Ghosh (Nee Mukherjee), W/O – Sri Tapan Ghosh, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. – Sonarpur, Kolkata – 700 149.                                                2. Smt. Piyali Basu (Nee Mukherjee), W/O – Sri Abhijit Basu, Residing at 109, Agore Sarani, Sarada Complex, P.O. – Rajpur, P.S. – Sonarpur, Kolkata – 700 149.                                                 3.  Sri Ram Chandra Shaw, S/O – Kapil Shaw, Residing at 38, Raipur Road, P.O. – Garia, P.S. – Jadavpur, Kolkata – 700 084.                                                  4.  M/S. Sarada Construction, A sole proprietorship Firm, Represented through Sri Ram Chandra Shaw, Having its office at East Baidya Para, P.O. + P.S. – Sonarpur, Kolkata – 700 150.     _______________________________________________________________ JUDGMENT Sri Ananta Kumar Kapri, President             This is a case filed under section 12, CP Act, 1986 by the complainant alleging deficiency in service on the part of the O.P.s.             Facts leading to the filing of the instant case may be epitomized as follows.             O.P.s nos. 1 and 2 are land owners and O.P. nos. 3 and 4 are developers. Sale agreement dated 28.04.2014 was executed by and between the complainants and the O.P. no. 3 i.e. the developer and thereby the developer agreed to sell a self-contained flat measuring 774 Sq.ft. super built-up area, as succinctly described in schedule B to the complaint, for Rs. 12,00,000/-. The entire consideration price of Rs. 12,00,000/- has been paid by complainants to O.P. no. 3 on different dates. Sale deed has been also executed and registered on 27.07.2015 by O.P. no. 3 / developer in favour of the complainants. But, possession of the flat and completion certificate of the building are yet to be delivered to the complainants. Consistent demands of the complainants for possession of C.C. have turned into a blind alley. Now, the complainants pray for delivery of physical possession of the flat, payment of compensation etc. Hence, this case.             Written version is filed by O.P. no. 3 / developer wherein it is contended that the case is not maintainable as it is not a consumer dispute. According to him, possession of the flat was made over to the complainants. The case is vexatious one filed after a long lapse of time since the date of registration of the flat and therefore the case should be dismissed in limini with cost.             Written version is also filed by O.P. no. 2 i.e. the owner, wherein it is contended inter-alia that the developer (O.P. no. 3) has cheated O.P. nos. 1 and 2 by transferring the subject flat to the complainants. According to them, the subject flat falls into owner’s allocation and O.P. no. 3 has no locus standi to transfer that flat to the complainants. Complainants and developer are in collusion with each other. Complainants are not entitled to the possession of the flat and therefore the case should be dismissed in limini.             Upon the averments of the parties, the following points are formulated for consideration.                                                    POINTS FOR CONSIDERATION 1.     Are the O.Ps guilty of deficiency in service as alleged by the complainants? 2.     Are the complainants entitled to get relief or reliefs as prayed for?      EVIDENCE OF THE PARTIES     Evidence on affidavit is led by the complainants, O.P. no. 2 and O.P. nos. 3 and 4. Questionnaires and replies filed by the parties are kept in record. BNA is only filed by complainants and the same is also kept in record after consideration.                                           DECISION WITH REASONS Point no. 1 and 2 :             In the instant case, registration of the deed of conveyance has been effected by the developer i.e. O.P. no. 3 in favour of the complainants with respect to the subject flat. The grievance of the complainants is that the possession of the flat has not been delivered to them by the developer. The developer has not been able to produce any possession letter before the forum to prove that the possession of the subject flat has been made over to the complainants by him. He was put a question, vide question no. 16 by the complainants as to whether possession of the flat is made over to the complainants and whether possession letter has been delivered to the complainants or not. O.P. no. 3 has given no reply to that question of the complainants during written cross examination. O.P. no. 2 is the land owner and she was also asked, vide question no. 16 of the questionnaires put to her by complainants, as to whether the complainants are in possession of the subject flat. In reply, she was stated that she is not responsible to give possession of the flat to the complainants. From all these, it stands established that the possession of the subject flat has not been delivered to the complainants by the developer i.e. O.P. no. 3, although O.P. no. 3 has effected a registered deed of conveyance in favour of the complainants in respect of the subject flat. This is one chapter of the episode and here is still another chapter of the episode left for discussion.             It is the version of O.P. no. 2 i.e. the land owner that she has been cheated by the developer who had sold away the flat to the complainants from her owner’s allocation. The developer has not been able to give satisfactory answer to the charge levelled against him by the land owner. A copy of development agreement dated 27.07.2011 is filed on record. On perusal of the said development agreement and also the deed of conveyance of the complainants, it is found that the subject flat lies in the allocation of owner i.e. O.P. no. 2 and the developer i.e. O.P. no. 3 in his shenanigans has sold away the said flat from owner’s allocation to the complainants. The complainants have not also gone deeper into the matter; they have purchased the flat blindly, relying upon the version of the developer i.e. O.P. no. 3. Now, it is found that the developer has no authority to sell the flat from owner’s allocation. He i.e. the developer has acted in contravention of the terms and condition of the development agreement and has sold away the flat to the complainants. Such transgression of the terms of development agreement by the developer is not permissible in law. This being the facts and circumstances of the case, it is found that the developer i.e. O.P. no. 3 has no locus standi to sell out the subject flat to the complainants from owner’s allocation of O.P. no. 2 and therefore the deed of conveyance dated 27.07.2015 executed by the developer i.e. O.P. no. 3 in favour of the complainants is unlawful and invalid. The complainants cannot get the subject flat which has been registered in their favour. Regard being had to all these, we are inclined to pass an order in favour of the complainants as hereunder for the reason that the dexterous act of the developer appears to be more than deficiency in service.                                          In the result, the case succeeds.             Hence,  ORDERED             That the complaint case be and the same is decreed on contest against the O.P. nos. 3 and 4 with a cost of Rs. 10,000/- and dismissed on contest against O.P. no. 2. The case also stands dismissed ex-parte against O.P. no. 1.             The developers i.e. O.P. nos. 3 and 4 are directed to deliver a new flat of similar type with similar area and similar facility, well complete in all respects, to the complainants and to register the same in favour of the complainants at his own cost, provided the complainants are ready and willing to accept the said flat, within a month of this order, failing which he i.e. O.P. no. 3 shall return the entire consideration price i.e. Rs. 12,00,000/- to the complainants with interest at the rate of 12% p.a. from date of payment till full realization thereof.             In case the complainants do not accept the new flat sought to be provided to them by O.P. no. 3, he i.e. O.P. no. 3 is also directed to pay a sum of Rs. 7,00,000/- as compensation to the complainants to mitigate their loss, mental agony and harassment caused to them, within the aforesaid period i.e. one month of this order, failing which the compensation amount will bear interest at the rate of 12% p.a. till full realization thereof.             O.P. no. 3 is further also directed to supply completion certificate to the complainants, if a new flat is delivered to the complainants within aforesaid period of one month, otherwise latitude is given to the complainants to execute this award through the instrumentality of the forum.     Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.   I/We agree                                                               Member                                President                                     Directed and corrected by me                                                                  President

 

Consumer case Final Order in Complaint Case No. CC/57/2017 - Sreyashi Bandyopadhyay & anr - versus - M/s. A.S.R. Properties & Others - State Consumer Disputes Redressal Commission, West Bengal

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION

WEST BENGAL

11A, Mirza Ghalib Street, Kolkata - 700087

 

Complaint Case No. CC/57/2017 ( Date of Filing : 30 Jan 2017 )

1. Smt. Sreyashi Bandopadhyay W/o Sri Chandra Sekhar Bandopadhyay, 56, Qtr. no.3B, P.O. & P.S.- Chittaranjan, Dist. Burdwan, Pin- 713 331. 2. Sri Chandra Sekhar Bandopadhyay S/o Lt. Nripendra Nath Bandopadhyay, 56, Qtr. no.3B, P.O. & P.S.- Chittaranjan, Dist. Burdwan, Pin- 713 331. ...........Complainant(s) Versus 1. M/s. A. S. R. Properties 66/1, North Jessore Road, P.O. & P.S. - Barasat, Dist. North 24 Pgs., Pin- 700 124. 2. Sri Sumit Mukherjee S/o Lt. Sanat Kr. Mukherjee, 66/1, North Jessore Road, P.O. & P.S. - Barasat, Dist. North 24 Pgs., Pin- 700 124. 3. Smt. Paroma Mukherjee(Pathak) W/o Sri Sumit Mukherjee, 66/1, North Jessore Road, P.O. & P.S. - Barasat, Dist. North 24 Pgs., Pin- 700 124. 4. Sri Dipankar Biswas S/o Sri Dipti Prakash Biswas, Anandapally, Vill.- Chak Ramnagar, P.O.R.C- Thakurali, P.S. Thakurpukur, Kolkata-700 104. 5. Sri Joseef Gayen S/o lt. John Gayen, Dholi Para, P.O.R.C- Thakurali, P.S. Thakurpukur, Kolkata-700 104. ............Opp.Party(s)

 

BEFORE:
	HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER
	HON'BLE MRS. Dipa Sen ( Maity ) MEMBER

 

For the Complainant:	Mr. Anindya Chakraborty, Advocate
For the Opp. Party:	Mr. Avijit Chatterjee, Ms. Asha ghosh, Ms. Sanhita Shaoo., Advocate
	Inperson/, Advocate

Dated : 19 Dec 2019

Final Order / Judgement

PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER               The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/ intending purchaser against a partnership construction firm and its partners (Opposite Party Nos. 1 to 3) and the landowners (Opposite Party Nos. 4 and 5) on the allegation of deficiency of services, primarily on the part of developer in a dispute of housing construction.         Succinctly put, complainants’ case is that on 09.01.2015 they entered into an agreement with the Opposite Parties to purchase of a flat measuring about 900 sq. ft. super built up area being flat No. 2A on the second floor in a building christened ‘Paroma Palace’ lying and situated in R.S. plot No. 1314 corresponding to R.S. Khatian No. 91 within Mouza- Haridevpur, P.S.- Thakurpukur, Kolkata- 700104, Dist- South 24 Parganas at a total consideration of Rs. 22,05,000/-. On the date of execution of agreement for sale, complainants have paid Rs. 4,14,000/- as earnest money/part consideration amount towards the said total consideration amount by way of three cheques. The complainants have stated that as per terms of the agreement the developer was under obligation to complete the construction within 24 months from the date of execution of agreement for sale. The complainants have alleged that the developer has no intention to get sanction of the building plan from the Kolkata Municipal Corporation and did not take any measure for raising construction of the building. The complainants have also stated that in this regard all their requests and persuasions went in vain. Finding no other alternative, on 28.01.2016 the complainants requested the Opposite Parties to refund the amount but it also remains unheeded. Hence, the complainants have come up in this commission with the present complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to refund the consideration amount of Rs. 4,14,000/- with the prevalent rate of interest from the date of execution of the agreement for sale; (b) to pay compensation of Rs. 2,00,000/- for harassment and mental agony; (c) to grant costs of the proceeding etc.         The Opposite Party Nos. 1 to 3/ developer did not file written version. However, applying the principles of law laid down by the Hon’ble Supreme Court reported in (1988) 4 SCC 613 (Modula India –vs- Kamakshya Singh Deo) the Opposite Party Nos. 1 to 3 were given opportunity to file questionnaire to test the veracity of statements of complainant and to address argument in respect of complainants case.         The OP No. 4 i.e. one of the landowners by filing a written version has stated that due to negligence on the part of developer the venture has not only shattered completely but also created  legal encumbrances upon their landed property. The OP No. 4 has stated that he is in no way responsible for the inconveniences of the complainants.         In support of their case, Smt. Sreyoshi Bandopadhayay, complainant No. 1 has tendered evidence through affidavit on behalf of herself and also on behalf of her husband i.e. complainant No. 2. The complainants have given reply against the questionnaire set forth by OP Nos. 1 to 3 and OP No. 4.         Sri Dipankar Biswas (OP No. 4), one of the landlords has also tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the adversaries.         At the time of final hearing on behalf of complainants and Opposite Party Nos. 1 to 3,  brief notes of argument have been filed.         The overwhelming evidence on record make it abundantly clear that the Opposite Party No. 1 is a partnership construction firm to which Opposite Party Nos. 2 and 3 are the partners. Opposite Party Nos. 4 and 5 are the joint owners in respect of a piece of land measuring about 4 cottahs 15 chittaks 20 sq. ft. more or less lying and situated at R.S. Plot No. 1314, R.S. Khatian No. 41, Mouza-Haridevpur, P.S.- Thakurpukur, Kolkata- 700104, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation. Evidently, on 29.08.2014 the landowner had entered into a development agreement with OP No. 1 construction firm for raising construction of a multi-storied building over the said property. On the self-same date, the Opposite Party No. 4 also executed and registered a General Power of Attorney in favour of Opposite Party No. 1, a partnership firm represented by Opposite Party Nos. 2 and 3 authorising them to enter into an agreement for sale with the intending purchasers and to receive the consideration money in respect of developers allocation.         Being emboldened with the power conferred upon them, the Opposite Party Nos. 1 to 3 had entered into an agreement for sale with the complainants on 09.01.2015 to sell one self-contained flat measuring about 900 sq. ft. which includes 25% super built up area being flat No. 2A on the second floor in a building christened ‘Paroma Palace’ lying and situated over the property as mentioned above on a total consideration of Rs. 22,05,000/-. Admittedly, on the date of execution of agreement for sale i.e. on 09.01.2015 the complainants have paid Rs. 4,14,000/- as earnest money/part consideration amount by way of three cheques amounting to Rs. 52,000/-, Rs. 1,00,000/-, Rs. 2,62,000/- respectively totalling to Rs. 4,14,000/-.         Needless to say, the parties are bound by the terms of the agreement. Clause (vi) (inner page 12) of the Agreement for Sale specifically provides:         “(vi) THAT the construction of the building will complete within 24 months of the date of execution of this agreement until and unless it is being affected from any natural calamities and wear and tear or for any other reasons which may be beyond the control of the owners and vendors.” Therefore, as par terms of the agreement, the developer was under obligation to complete the construction within 24 months from the date of agreement for sale i.e. within 08.01.2017. However, the Opposite Parties No. 1 to 3 have failed to keep their promise. In other words, the OP Nos. 1 to 3 even could not obtain sanctioned building plan from the Kolkata Municipal Corporation to start construction. In this regard, all the requests and persuasions of the complainants to start construction and to deliver possession within time frame turned a deaf ear. The evidence on record also speaks that under compelling circumstances the complainants by a letter dated 28.01.2016 requested the developer to refund the amount paid by them. The evidence on record speaks that OP No. 2 on behalf of OP No. 1 construction firm issued two A/c payee cheques amounting to Rs. 50,000/- each being cheque Nos. 017920 and 017921 drawn on Central Bank of India, Barasat Branch dated 23.07.2016 and 20.08.2016 respectively, but both the cheques were dishonoured. Mr. Abhijit Chatterjee, Ld. Advocate for the OP Nos. 1 to 3 has submitted that in obtaining sanctioned building plan the developer has faced several difficulties and in such a situation the developer had expressed their intention to move out of the project. However, the OP No. 4 has assured that it will be his responsibility to obtain the sanction plan. It has been submitted on behalf of the developer that due to negligent act on the part of OP No. 4 they could not be able to complete the project. It is well settled that an inter-se dispute between the landowner and the developer cannot be used as a ploy to wriggle out the obligations of the developer under the agreement and to put the buyer in lurch. In a land mark decision reported in (2008) 10 SCC 345 (Faqir Chand Gulati –vs-  Uppal Agencies Private Limited) the Hon’ble Supreme Court has observed that in case of any grievances of the developer against the landowner, he may approach a competent civil court for redressal of his grievances. Equally if the landowner has any claim against the developer, he may either seek relief from a Forum constituted under the Act or may approach a competent Civil Court. In any case, the dispute between the landowner and the developer cannot take away the right of a ‘Consumer’. In view of the above, the complainants are entitled to some reliefs. Considering the nature of the case, we think, an order directing the Opposite Party Nos. 1 to 3 to refund Rs. 4,14,000/- along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, the complainants have approached this commission and as such they are entitled to litigation costs which we quantify Rs. 20,000/-. In view of the above discussion, the complaint is disposed of with following directions: (i) The Opposite Party Nos. 1 to 3 are jointly and severally directed to refund Rs. 4,14,000/- to the complainants along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation; (ii) The Opposite Party Nos. 1 to 3 are jointly and severally directed to pay Rs. 20,000/- to the complainants as costs of litigation; (iii) The above payments should be made within 90 days from date in terms of the above order.

 

[HON'BLE MR. SAMARESH PRASAD CHOWDHURY]

PRESIDING MEMBER

[HON'BLE MRS. Dipa Sen ( Maity )]

MEMBER