JUDGEMENT

Complainants by filing this complaint have alleged that as intending purchasers of the flat comprising 768 Sq. Ft. from the op nos. 1 & 2 the developer and the rest are land owners of the property entered into a tripartite agreement dated 11.03.2007 in respect of flat No. F 3/A situated at the northern side of the third floor of the G+4 building and total consideration amount was fixed at Rs. 11,44,320/- out of which complainant had paid a sum of Rs. 5,10,000/- in between the period of 09.03.2007 to 27.04.2007 and as per agreement dated 11.03.2007 op was liable to deliver vacant kash possession of the said flat within two months from the date of commencement of the said agreement dated 11.03.2007.  But despite the commencement of work after getting the sanctioned building plan, they did not comply the same and had never put any heed thereby deliberately evading and frustrating the interest of the complainants being the intending purchasers.  Having no other alternative complainants issued a legal notice through their Ld. Advocate on 24.06.2013 calling upon the op nos. 1 & 2 to refund the advanced money for non-performance of contractual obligations.

          But op did not respond and practically ops have not complied the terms and conditions of the agreement and harass the complainants in so many manners and causing financial loss in all respect and getting no redressal from the op this complaint is filed.

          On the other hand op no.1& 2 by filing written statement submitted that the allegation as made in the complaint are not at all correct and fact remains in terms of the development agreement dated 10.05.2006and for the felicitation of the development work and to deliver the flat in terms and conditions as stipulated therein op nos. 3,4,5 & their mother Pratima Roy executed the power of attorney on 10.05.2006 in favour of op nos. 1 & 2 to act jointly with further right to enter into agreement for sale and to execute and register Deeds of Conveyance in favour of the intending purchasers with right to receive earnest money and consideration money from them and accordingly op no.1 has arranged for temporary accommodation of the owners/op no.3 and their mother Pratima Roy in a rented accommodation at Premises No. 57/D, Garpar Road, Kolkata – 700009.

          Further op nos. 1 & 2 accordingly obtained a building plan sanctioned from the KMC on 06.01.2007 started constructional works of building at the subject property and in course of progress of the said constructional works of the new building at Premises No. 15/1, op nos. 3,4 5 & their mother Pratima Roy being the owners have entered into agreement for sale with 6 intending purchasers individually including with the complainants and accordingly received earnest money and part consideration money from the intending purchasers including from the complainants and the op nos. 1 & 2 assured the intending purchasers including the complainants to deliver their respective flat in complete condition within 12 to 24 months from the respective date of execution of the agreement and on the completion of the said construction.

          But when the constructional works of the said building of first floor was completed, the police personnel of the local Manicktala Police Station stopped the constructional works of the said building from the 2^nd week of April, 2007 as per order of injunction passed by the Hon’bleWakf Tribunal and Hon’bleWakf Tribunal passed such order of injunction and till disposal of the Title Suit No.04/2007 against the owners/op nos. 3, 4, 5 and their mother Pratima Roy, then they are unable to proceed with the construction for which the constructional was stopped.  But it is submitted that op no.1 already invested the sum of Rs. 97,15,717/- for carrying on such constructional works of the building.  Complainant is aware of the fact about the stop of constructional works for such sort of litigation and this situation was caused due to said litigation and it was beyond control of the op no.1.  However op nos. 1 & 2 are keeping watch about the said Title Suit No. 04/2007 pending before the Hon’bleWakf Tribunal and finding no other alternative op no.1 issued a letter dated 28.03.2013 with furnishing a statement of accounts of the said project as already spent including financial liabilities and sent the same under registered post with A/D to all the owners, op nos. 3, 4, 5 and their mother to know the latest position.  But the land owners are very silent.  But op no.3 assured that about full hope and confidence of its future completion of work.  So, under any circumstances, there was no fault on the part of the ops and only for harassing the op nos. 1 & 2, complainants have filed this complaint and in fact the present complaint is not maintainable in view of the above legal position.

          On the other hand op nos. 4 & 5 by filing written objection submitted that op no.3 Smt. Pratima Roy the mother of op nos. 4, 5 & 6 died on 30.04.2013 and the only legal heirs’ representatives of Pratima Roy since deceased are op nos. 4, 5 & 6 and such name of Pratima Roy should be struck out and they also submitted that the name of the op nos. 4, 5 & 6 also struck out as there is no cause of action against them.

          It is further submitted that admittedly purported agreement to sale dated 11.03.2007 was executed in between the complainants and op no.2 and other ops therefore are not bound by the terms and conditions of the said agreement.  It is the sole liability of the op nos. 1 & 2 in respect of the said agreement, no part of the construction was received by the op nos. 4, 5 & 6 and there was no deficiency in service on the part of the op nos. 4, 5 & 6 and in fact there is no allegation against the ops and for which the present complaint against op nos. 4, 5 & 6 is not maintainable and also they have prayed for passing such necessary order dismissing the complaint against them.

Decision with reasons

          On careful study of the complaint and written version and also the argument as advanced by the Ld. Lawyers of both the parties, it is clear and it is an undisputed fact that the agreement for sale dated 11.03.2007 was executed in between the complainants and the ops and the said agreement was executed by Pradip Ghosh and B.K. Banerjee for self on behalf of Pradip Ghosh, Ujjal Roy, Srabani Chakraborty and SarmisthaPanja and owners also.  So, it is clear that other ops did not receive any amount but everything was done by op nos. 1 & 2 and they received the money being empowered o the basis of power of attorney and it is also found that cheques were issued in favour of the Pradip Ghosh and Bhata Kr. Banerjee against their account and money was received by them always personally as and no part of consideration was received by op nos. 3 to 6.

          But truth is that agreement was executed by op nos. 1 & 2 for self and on behalf of the other ops being empowered by power of attorney.  It is admitted by the op that work of the construction was already stopped on the basis of the order of Wakf Tribunal and for which ops are unable to complete the same and for that reason also ops claimed that they have their no fault, deficiency and until and unless this case would be disposed of and there is no chance to proceed with the case.

          Fact remains in connection with a case No. 04/2007 instituted by Board of Wakf Tribunal against Pratima Roy and 3 others ops injuction order was passed on 03.04.2007 and the said case is still pending and temporary injunction order in respect of the said property is still invoked.  So, ops are no doubt unable to construct.  But fact remains op nos. 1 & 2 already invested a sum of Rs. 5,10,000/- out of total consideration of Rs. 11,44,000/- in between the period 09.03.2007 to 27.04.2007 and in the meantime 7 years have already passed and complainants have not got the flat and ops are unable to assure the complainants on which date the flat shall be handed over to them on the contrary op nos. 1 & 2 have expressed that they are unable to give any particular date about completion of the flat but till completion of the said Title Suit it would not be possible.  But ops are unwilling to return the said amount, though complainants already prayed for refund of the same when complainants are aware of the fact, their hopes for getting a flat is doomed.  Though they have invested 50% of the total consideration amount no doubt ops are invested in his business, ops failed to hand over the flat within 12 to 24 months from the date of execution of the said agreement to sale dated 11.03.2007.

          Then invariably it is proved that op nos. 1 & 2 have failed to discharge their liabilities, responsibilities and their services to the complainants even after enjoying huge money from the complainants.  So no doubt negligence and deficiency on the part of the op nos. 1 & 2 is well proved.  But at the same time however ops are equally responsible because they are also the party of the said agreement to sale.  Though op nos. 4 to 6 have not taken the advance amount in respect of the agreement to sale dated 11/03/2007 directly  but they are the owner of the land and against them actually in Wakf Tribunal the case is pending and it is under injunction.  That means they knowing fully well about their weakness of the title entered into an agreement and empowered op nos. 1 & 2 to sell it and to receive the money and for which they are indirectly or directly involved and they are also liable for that and in the above situation we are convinced to hold that complainants has been able to prove the allegation as made against the ops and no doubt ops are liable to execute the sale deed and hand over the said property (flat).  But when they are unable to hand over it within stipulated time as enumerated dated 11.03.2007 then invariably they are also liable to refund of the same amount and other relief.

          In the result the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against all the ops but the cost shall be paid by the op nos. 1 & 2 alone.

          Accordingly op nos. 1 & 2 are hereby directed to refund Rs. 5,10,000/- with interest @ 8% p.a. over the same since the date of 27.04.2007 till its full payment to the complainants and the said amount shall be paid with interest to the complainants within one month from the date of this order.

          For harassing the complainants in such a manner and also for causing huge financial loss to the complainants, op nos. 1 & 2 are hereby directed to pay Rs. 50,000/- as compensation and also for causing mental pain and agony and sufferings for not getting the flat as per executed agreement for sale dated 11.03.2007 and said amount shall also to be paid to the complainantswithin one month from the date of this order.

          Considering the conduct of the op nos. 1 & 2 for non-refunding the said amount, it tantamount to unfair trade practice and for which op nos. 1 & 2 are imposed punitive damages to the extent of Rs. 30,000/- for adopting unfair trade practice and this type of activities and conduct and unfair practice business by the op nos. 1 & 2 and likemen this punitive damages is imposed and op nos. 1 & 2 shall have to pay punitive damages to this Forum within one month from the date of this order.

          If op nos. 1 & 2 failed to comply the order within stipulated time in that case op nos. 1 & 2 shall be prosecuted for which further penalty and fine may be imposed as per provision u/s 27 of C.P. Act 1986.