Date of filing – 22.09.2017
Date of hearing – 20.04.2018
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the developer/builder and its proprietor (Opposite Party Nos. 1 & 2) and the landowners (Opposite Party Nos. 3 to 6) on the allegation of deficiency in services on the part of the Opposite Parties in a consumer dispute of housing construction.
In a capsulated form, Complainant’s case is that on 27.05.2013 he entered into Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 1030 sq. ft. super built up area being Flat No.’4B’ or ‘4C’ on the 4th floor of a proposed building named ‘Gitanjali Apartment’ lying and situated at Municipal Holding No.RGM-3/1/1, Block-‘B’ at Bablatala, P.S.- Airport, Kolkata – 700136, Dist- North 24 Parganas at a total consideration of Rs.29,35,500/-. The complainant has stated that he has paid Rs.25,50,000/- on diverse dates by cheque or by cash to the developer as part consideration amount towards the said total consideration amount. The complainant has alleged that the Agreement for Sale was prepared by the developer through his Advocate and it was not mentioned when the flat will be delivered. The complainant has stated that as he was in badly need of accommodation, he intended to purchase the flat and in this regard, all his persuasions to get the subject flat in his favour went in vain. Then he wrote letter to the OP claiming refund of Rs.25,50,000/- along with interest @ 12% p.a. and compensation of Rs.10,00,000/- and litigation cost of Rs.50,000/- but it yielded no result. Hence, the complainant has come up in this Commission with the instant complaint.
Despite service of notice upon the Opposite Parties, none appeared to contest.
In support of his case, complainant tendered evidence on affidavit.
Perused the material on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
Upon hearing the Ld. Advocate for the complainant and on perusal of contents of petition of complaint and evidence on record, it emerges that the OP Nos. 3 to 6 were the owner of a piece of land measuring about 6 cottahs 3 chittaks 37 sq. ft. of land lying and situated at Bablatala, P.S.- Airport under the erstwhile Rajarhat-Gopalpur Municipality, Dist-North 24 Parganas. On 31.08.2012 the landowners jointly entered into a Development Agreement with the OP No.1, a proprietorship concern for raising construction of a G+5 storied building thereon. The landowners have also executed a Power of Attorney in favour of the developer with an authority to enter into an Agreement for Sale of flat, shop and garage with the intending purchaser save and except the allocation of the landowners.
By dint of that power conferred upon him, the Opposite Party No.2 being proprietor of OP No.1 had entered into an agreement for himself and on behalf of landowners with the complainant to sell a flat measuring about 1030 sq. ft. super built up area being Flat No.’4B’ or ‘4C’ on the 4th floor of a proposed building named ‘Gitanjali Apartment’ lying and situated at Municipal Holding No.RGM-3/1/1, Block-‘B’ at Bablatala, P.S.- Airport, Kolkata – 700136, Dist- North 24 Parganas at a total consideration of Rs.29,35,500/-. The money receipt available with the record clearly indicates that the complainant has already paid Rs.25,50,000/- as part consideration amount towards the total consideration amount. It may be recorded here that all the amounts have been paid by the complainant in between 03.05.2013 and 25.07.2014. However, the developer did not take any action to fulfil his part of obligations.
The evidence on record also goes to show that the developer did not construct the building in accordance with the sanctioned building plan. At the instance of the complainant, one Licensed Building Surveyor (LBS) was appointed and after holding inspection, the said LBS namely Nazrul Haque, who submitted his report on 13.08.2017, has found several discrepancies like – (a) in case of Flat No.1/Flat 4C, the super built area as per sanctioned drawing is 704.89 sq. ft. but the developer in the agreement is showing the area of the same flat is 887 sq. ft., the differences 182.11 sq. ft. which is about 25.83% more and (b) in case of Flat No.2/Flat 4B the super built area as per sanctioned drawing is 727.59 sq. ft. but the developer in the agreement has shown the area of the same Flat is 1030 sq. ft, the difference is 302.41 sq. ft. which is about 41.56% more. The LBS in his report has categorically stated that the deviation in the building plan being No.309/12/13 dated 17.12.2013 has been done purposely by the developer.
The evidence on record also suggests that the complainant on 05.07.2012 issued a notice upon the opposite parties through his advocate for cancellation of the Agreement for Sale and claimed refund of consideration amount where the complainant has clearly mentioned that the purpose of purchasing the flat as per agreement dated 27.05.2013 is not persisting more because on account of urgency, he purchased one flat in some other place.
The Opposite Parties have not appeared to contradict or controvert the allegations made by the complainant and as such there is hardly any reason to disbelieve the evidence adduced by the complainant.
The overwhelming unchallenged evidence and the materials on record clearly suggests that the complainant has been able to substantiate his case. It transpires that being frustrated about the unethical approach of the developer, complainant purchased a flat in some other place owing to his urgent need. The developer/builder after receipt of more than 80% of the total consideration amount should have given answer to the letter of the complainant and to express his willingness to perform his part of obligations. Since the OP has failed to communicate anything to the complainant as to his eagerness to honour the agreement and further he did not come to resist the statement of complainant, it can be safely hold that the OP Nos. 1 & 2/developer was deficient in rendering services to the complainant.
On evaluation of materials on record, I am of the view that complainant is entitled to order in favour of him in terms of getting refund of Rs.25,50,000/- along with compensation in the form of interest thereon @ 12% p.a. from the date of payment of each instalment till its recovery. As the situation compelled the complainant to lodge the complaint, he is also entitled to litigation cost which I quantify at Rs.10,000/-.
Consequently, complaint is allowed ex-parte against OP Nos. 1 & 2 and dismissed against OP Nos. 3 & 4.
The OP Nos. 1 & 2 are jointly and severally directed to refund Rs.25,50,000/- along with compensation in the form of interest thereon @ 12% p.a. in favour of the complainant from date of payment of each instalment till its total realisation. The OP Nos. 1 & 2 are further directed to pay Rs.10,000/- as cost of litigation to the complainant within 30 days from date otherwise the amount shall carry interest @ 8% p.a. till its recovery.
The Registrar of the Commission is directed to send a copy of this order to the complainant and opposite party no.2 Sri Bablu Karmakar at once free of cost for information and compliance.
