FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

            The brief facts as set out in the complaint are that the OP-1 being the owner of KMC Premises No.  115/45, Bose Pukur Road, PS-Kasba, Kolkata-700039 had entered into an Agreement for Sale dated 13.03.2013 with the complainant to sell a flat measuring about 810 sq. ft. super built up area consisting of 03 Bed Rooms, 01 Kitchen,  02 Toilets,  02 Balcony and a Hall on the 03^rd floor of the building along with proportionate share of land at a total consideration of Rs.  17,00,000/-. Complainant has already paid Rs.  15,40,000/- to the OP-1  on diverse dates against proper receipts out of the said sale consideration. In the agreement it was stipulated that the booked flat shall be handed over to the complainant within 12 months from the date of execution of the Agreement for Sale. OP-1 has failed to meet his commitment and also failed to handover peaceful vacant possession of the booked flat. OPs 2  & 3 are the business partners of OP-1. OP-1sold the booked flat to the OP-3 with the help of OP-2 depriving the complainant. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant has prayed for relief as sought for in the complaint petition.

The OP-1 has contested the complaint as being devoid of any cause of action. He avers that the complainant has failed to comply Clause-2 of the Agreement for Sale dated 13.03.2013. As such the answering OP sold the booked flat to the OP-3 through his constituted attorney i.e. the OP-2. There is no unfair trade practice and/or deficiency in service on the part of the answering OP. Thus, the complainant is not entitled to get any relief/reliefs as prayed for.

The complaint is resisted by the OPs 2 and 3 by filing written version in which the allegations leveled by the complainant is denied and it is stated that the complainant is not a “Consumer” within the meaning of Consumer Protection Act. Complainant is not entitled to any relief as prayed  for from the Hon’ble Commission and he may approach the Appropriate Forum, for redressal of his grievance. The answering OPs have not provided any service to the complainant. Thus, there is no deficiency in service and/or unfair trade practice on their part and also prayed that the complaint may be dismissed.

Complainant and OPs have filed their evidence by way of affidavit. OPs 2 and 3 have also filed their Brief Notes of Argument. The OP-1 did not file reply against the questionnaire of the complainant and thereafter did not participate in the proceeding of the case. We have heard the Ld. Advocate for the parties and carefully perused the record.

From the documents on record and arguments of both the parties, it is evident that the complainant had booked a flat consisting of 03 bed rooms,  02 toilets, 01 Hall room,  02 balcony, 01 kitchen measuring about  810 sq. ft. super built up area on the 03^rd floor of KMC Premises No. 115/45, Bose Pukur Road, PS-Kasba, Kolkata-700039 with the OP-1. An agreement for sale dated 13.03.2013 was executed between the complainant and the OP-1. Total sale consideration of the booked flat was Rs. 17,00,000/-. It is also a fact that complainant has paid Rs. 15,50,000/- to the OP-1 out of total sale consideration of Rs.  17,00,000/- on diverse dates. The booked flat is not delivered to the complainant within 12 months from the date of execution of the Agreement for Sale dated  13.03.2013. It is also a fact that the complainant did not pay remaining sale price of Rs. 1,50,000/- to the OP-1 as OP-1 did not handover peaceful vacant possession of the flat.

It is admitted fact that OP-1 sold the booked flat to the OP-3 by executing and registering a Deed of Conveyance through his Power of Attorney Holder Somnath Chatterjee (OP-2). From the conjoin reading of Clause-2 of the Agreement for Sale, it is evident that if the purchaser fails to complete the transaction within  12 months from the date of execution of the agreement and in that case earnest money will be refunded. On the date of execution of the Agreement for Sale complainant paid Rs. 5,00,000/- and thereafter on diverse dates he paid Rs. 10,50,000/- to the OP-1 who accepted the money against receipts and without any objection. Prior to execution and registration  of the booked flat in favour of OP-3, OP-1 did not refund Rs.  15,50,000/- to the complainant. This activities of the OP-1 is tantamount to deficiency in service and unfair trade practice.

In course of hearing Ld. Advocate for the OPs 2 and 3 submitted that Consumer Commission has no jurisdiction to try the matter and a claim for Specific Performance of the agreement would lie only before the Civil Court and not before the District Consumer Disputers Redressal Commission. It is true that in the Agreement for Sale there is a clause of Specific Performance of Contract. In this regard, he relied on the judgment of the Hon’ble SCDRC passed in FA No. A/780/2017 and the Hon’ble Supreme Court in Ganeshlal Vs. Shyam in Civil Appeal No. 331/2017.

We have perused both the cited decisions. The above cited decisions are not applicable in this case. In those cited decisions purchasers entered into an Agreement for Sale to purchase a plot of land without the matter of construction of building. We may however, note that when the plot comes to “housing construction” the same has been specifically covered under the definition of service, the present case is not a sale of plot of land simpliciter. Thus, the Specific Performance of Contract clause in the Agreement for Sale does not bar the jurisdiction of the Consumer Commission.

OPs 2 and 3 are not party to the Agreement for Sale. OPs 2 and 3 have not provided any service to the complainant. Thus, the complainant is not entitled to any relief against the OPs 2 and 3 and the consumer case is liable to be dismissed against the OPs 2 and 3.

It is evident that the OP-1 has failed to handover peaceful vacant possession of the booked  flat to the complainant and also failed to execute and register Deed of Conveyance though the complainant has already paid 85  percent of the sale price to the OP-1. Deficiency in service and unfair trade practice on the part o the OP-1 is therefore, write large.

For the aforementioned reasons, we find merit in the contentions of the complainant and allow the complaint with the following directions:-

1. OP-1 shall refund the entire amount of Rs. 15,50,000/- (Rupees fifteen lacs fifty thousand) only deposited by the complainant with simple interest  at the rate of 9  percent p.a. from the respective dates of respective deposit till the date of repayment to the complainant within 60 days on receipt of this order.
2. OP-1 shall pay Rs. 50,000/- (Rupees fifty thousand) only to the complainant for deficiency in service and unfair trade practice within the specified time as above;
3. OP-1 shall also pay Rs. 10,000/- (Rupees ten thousand) only to the complainant towards litigation cost within the specified time as above;
4. In the event of non-compliance of this order the amounts to be paid shall attract penal interest of 12  percent per annum.

Thus, the Consumer Case is disposed off on contest against the OP-1 with cost and dismissed on contest against rest OPs without any litigation cost.