FINAL ORDER/JUDGMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
For the sake of convenience and brevity, the parties are referred to herein as they stood arrayed before this commission.
The case of the complainant is that OP-1 AR Construction is a Partnership Firm represented by OPs 2 to 4 as its partners and they represented the complainant that a Development Agreement have been executed between themselves and OPs 6 to 9/landowners for construction of a residential building at KMC Premises No. 11/H/10/2, Beliaghata Main Road, Kolkata-700010. The complainant expressed her intention to purchase a residential flat measuring an area of 350 sq. ft. more or less including 20 % super built up area on the 3rd floor (back side) of the proposed building for a consideration of Rs. 6,30,000/-. Complainant agreed to purchase the aforesaid flat and on 05.03.2013 paid Rs. 1,00,000/- as booking amount to the OPs 1 to 4 against money receipt. An agreement for sale dated 01.09.2013 was executed in respect of the subject flat and she further paid Rs. 1,40,000/- to the OPs 1 to 4 on different dates. OPs 2 to 4 introduced OP-5 as one of the developer and a fresh Agreement for Sale dated 18.11.2014 was executed between the OPs 3 and 5 and the complainant in respect of the subject flat. The sale price of the flat is Rs. 5,76,000/-. Complainant further paid Rs. 2,70,000/- to OP-5 against proper receipts. Possession of the flat is not given to the complainant within the stipulated period though the complainant is ready and willing to pay the balance sale price of Rs. 66,000/- on receiving the physical possession. Neither the OPs 1 to 5 complete the subject flat despite several request nor refund the consideration amount of Rs. 5,15,000/-. Claiming deficiency in service and unfair trade practice, complainant filed the instant consumer complaint before the District Commission.
Complaint is contested by the OP-2 by filing WV. It is stated that initially Development Agreement was executed between the land owners and OPs 2 to 4 and subsequently, Deed of Surrender was executed. In terms of the Deed of surrender the developer did not able to execute construction work of building. Subsequently, a fresh Development Agreement was executed between the land owners and OPs 3 and 5. The answering OP is not party to the said Development Agreement. Answering OP retired from Partnership firm AR Construction (hereinafter refer as OP-1). The OPs 6 to 9 are the Thika Tenants and they have no right to develop the subject property through any third party. More so, District Commission has no jurisdiction to adjudicate the consumer complaint which is governed under the Tikha Tenancy Act. Thus, the complaint is liable to be dismissed.
Upon notice, the OP-5 Nawab Ali contested the complaint and filed his WV. In the WV the answering OP admitted the fact of execution of Development Agreement between the landowners and OPs 2 to 4 and also execution of Deed of Surrender. It is also admitted that a subsequently a fresh Development Agreement was executed between the landlords and OP-3 Sk. Alam and the answering OP. The answering OP had no knowledge regarding previous monitory transaction. OP-2 retired from the Partnership Firm and he has no intention to grab the money of the complainant. Landlords are the Thika Tenants under the State of West Bengal and they have no right to execute any Development Agreement without the permission of the concerned department, Government of West Bengal. Thus, there is no deficiency in service and/or unfair trade practice on his part. According to the OP-5, the complainant is not entitled to get any relief as prayed for and the consumer complaint is liable to be dismissed with cost.
None put in appearance on behalf of OPs 1, 4, 6 to 9 despite service of notice. As a result, the case proceeded ex parte against them. OP-3 Sk. Alam died on 05.09.2017 and legal his legal heirs are not substituted.
Complainant, OPs 2 and 5 lead their evidence in support of their case.
We have heard the contesting parties and have gone through the entire record of the case, very carefully.
The admitted fact that initially a Development Agreement was executed between the landowner and OPs 2 to 4 for construction of a building at KMC Premises No. 11/H/10/2, Beliaghata Main Road, Kolkata-700010 and subsequently, Deed of Surrender was also executed as the OPs 2 to 4 unable to execute the proposed construction work. Prior to surrender Agreement, complainant booked a flat measuring about 350 sq. ft. more or less including 20 % super built up area on the 3rd floor (back side) of the proposed building for a consideration of Rs. 6,30,000/- and an Agreement for Sale dated 01.09.2013 was executed. The documents available with the record indicates that the complainant has paid Rs. 2,40,000/- as consideration amount towards the said agreement for sale.
It also remains undisputed that a fresh Development Agreement was executed between the landowners and OPs 2 and 5 for raising construction of a building at Premises No. 11/H/10/2, Beliaghata Main Road, Kolkata-700010. OPs 2 and 5 entered into an agreement dated 18.11.2014 with the complainant to provide her a flat measuring about 320 sq. ft. more or less built up area on the 3rd floor (back side ) of the proposed building on payment of Rs. 1,800/- per sq. ft. In terms of the Agreement dated 18.11.2014, complainant has paid Rs. 2,70,000/- to OP-5 on different dates. The OPs 2 and 5 did not deliver possession of the subject flat to the complainant. Therefore, keeping in view the decision in the case of Pawan Kumar and Anr. (Supra) and the decision in the case of Jugdish bhai M. Sneth (Supra) it cannot be said that the complainant does not fall within the definition “consumer” as defined U/S 2 (7) of the CP Act, 2019.
As per terms of the Agreement dated 18.11.2014, the OPs 2 and 5 are under obligation to handover the subject flat in favour of the complainant but the OPs 2 and 5 could not keep their promise to deliver possession of the flat for which complainant lodged a complaint to the Assistant Director, Central Consumer Grievance Redressal Cell, Government of West Bengal, Notices were issued upon the OPs but the mediatory procedure failed on account of non corporation on the end of the OPs.
Undisputedly, the OPs 6 to 9 are the landowners of the property lying and situated at 11/H/10/2, Beliaghata Main Road, Kolkata-700010. It is also not in dispute that the landowners entered into an agreement with OPs 2 to 4/Developers for the purpose of raising construction of a building over the said property. The defence of the contesting OPs are that the property in question is a Thika property and construction on it and transfer of such property cannot be legalized without the approval of the Competent Authority in this regard. OPs 3 and 5 failed to produce any scrap of paper to establish that the property in question is Thika Property. Thus, the defence on the part of the OPs does not convince us at all and such defence have taken to frustrate the claim of the complainant.
It also evident from the documents furnished by the complainant that she paid Rs. 2,40,000/- to the OPs 2 to 4 in terms of Agreement for sale dated 01.09.2013 and subsequently, paid Rs. 2,70,000/- to the OP-5 as per Agreement for Sale dated 18.11.2014. As per subsequent Agreement for Sale dated 18.11.2014 to the OPs 3 and 5 are under obligation to handover the subject flat in favour of the complainant. However, the OPs 3 since deceased and 5 could not keep their promise to deliver possession of the flat in favour of the complainant. Beside the payment of Rs. 2,40,000/- plus Rs. 2,70,000/- the complainant has claims that she has also paid a sum of Rs. 5,000/- to the OPs 2 to 4. The complainant has failed to show any scrap of money receipt showing payment of Rs. 5,000/- to the OPs 2 to 4. Complainant has also failed to file evidence through affidavit of any witness in presence of whom she paid Rs. 5,000/- to the OPs 2 to 4. In that perspective, the claim of complainant about total payment of Rs. 5,15,000/- cannot be accepted. However, it has been proved beyond any doubt that the complainant has paid Rs. 2,40,000/- to the OPs 2 to 4 in terms of Agreement for Sale dated 01.09.2013 and Rs. 2,70,000/- to the OP-5 as per Agreement for Sale dated 18.11.2014 towards the payment of construction charges. OP-5 in his WV has stated that he has no intention to grab the money of the complainant. The possession of the subject flat is not handed over by the OPs to the complainant. This fact has not been negated by the OPs. Moreover, it is well settled that the complainant cannot be expected to wait for an indefinite period to get the benefits of the hard earned money which she has spent in order to purchase the property in question (Ref. Fortune Infrastructure vs. Trevor D Lima reported at (2018) 5 SCC 442).
Relying on the above settled law, we hold that the OPs 2, 4 and 5 are the deficient in providing their services to the complainant as the OPs had given false assurance to the complainant with respect to the time for delivery of possession of the flat and had kept the hard earned money of the complainant for about 09 years.
Keeping in view of the facts of the present case, we direct the OPs 2 and 4 to refund Rs. 2,40,000/- (Rupees two lacs forty thousand) only to the complainant and OP-5 is also directed to refund Rs. 2,70,000/- (Rupees two lacs seventy thousand) only to the complainant along with Rs. 25,000/- as compensation for mental agony and harassment and Rs. 5,000/- as litigation cost. The above amount must be paid within 60 days from today.
Thus, the consumer case is allowed on contest against the OPs 2 and 5 and ex parte against the OPs 1 and 4. The case is dismissed against the OPs 6 to 9/land owners as there is no deficiency and unfair practice on their part.
Applications pending, if any stands disposed of in terms of the aforesaid judgment.
A copy of the judgment be provided to the parties free of cost as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
File be consigned to Record Room along with a copy of judgment.
