Order-26.
Date-04/12/2015.
In this complaint Complainant Sutapa Bose by filing this complaint has submitted that op nos. 5 to 11 are the owners of the piece and parcel of land upon which op nos. 1 to 4 developed the land and raised a multi-storied building thereon upon obtaining sanction plan from the Kolkata Municipal Corporation (KMC) by demolishing the existing building standing thereon on the basis of Development Agreement dated 19.10.2011 executed by and between and amongst all the ops and said premises is situated at 16, Laxmi Dutta Lane, P.S.- Shyampukur, Kolkata -700003 and further op nos. 5 to 11 executed a General Power of Attorney in favour of op nos. 2 to 4 for the aforesaid parties to execute the agreement to sale with the intending purchaser and registered sale deed and also constructed building etc.
Complainant is an employee of Central Govt. of India was in search of her own residential accommodation nearer to her office and as such to avoid the daily trouble and the journey from Pursurah, Champadanga, Hooghly to Kolkata.Accordingly complainant was introduced by KallolDatta and Saradindu Chatterjee with op nos. 2 to 4 and after discussion complainant intended and agreed to purchase one flat measuring 600 sq. ft. super built up area and according to execution of sale deed executed on 13.12.2011 in between the parties for purchasing a self contained residential flat having two bed rooms, one kitchen, one dining, one balcony, one bath & privy, one bath room, one wall setting temple on the 2nd floor etc. and for that purpose price for per staff as per agreement was fixed at Rs. 2,834/- and as per payment schedule dated 13.12.2011 complainant so far paid a sum of Rs. 5,10,000/- by account payee cheques.
Ultimately complainant visited this place and found on several occasions that ops have not taken any work for demolishing the old structure to take a new space for constructing a new work of the building proposed as per KMC plan.When complainant reported the matter and on enquiry op nos. 2 to 4 assured that the same would be commenced very soon and would be completed within a very short period.But thereafter complainant found that no such work and conduct of the op nos. 2 to 4 when they expressed that they are not able to construction work at the side of the agreement and delivered six nos. of account payee cheques towards the refund of the amount paid by the complainant.
But peculiar factor is that all those cheques were dishonoured and the matters were intimated to the ops.Thereafter op nos. 2 to 4 through their Ld. Lawyer reported that fresh cheques will be issued for refund of the money and against six nos. of cheques and fresh account payee cheques were issued by op nos. 2 to 4 but that was also dishonoured.After that complainant went to the op’s office of op no.1 and demanded of Rs. 5,10,000/- but they refused to make payment rather misbehaved with the complainant and threatened such dire consequences.The matter was informed to the local Police Station but no relief was given.
In the above circumstances, considering the negligent and deficient manner of service and for adopting unfair trade practice and deceitful manner of trade, complainant as consumer filed this complaint for relief with compensation, refund of money, litigation cost etc.
On the other hand op nos. 7 to10 the landowners by filing written statement submitted that complainant without proper verification of necessary parties pertaining to the property and without ascertaining the authority of the developer to enter into a Sale agreement with her and complainant willfully entered into a Sale Agreement with the op nos. 1 & 2 and no situation consideration money or any part thereon passed to the ops at any point of time.
Moreover complainant opted for refund of consideration money paid by her to the op nos. 1 to 4 undertook to repay the same by account payee cheques and in this regard complainant has been deceived by the op nos. 1 to 4 for which complainant may get relief against op nos. 1 to 4 but no other ops and the answering ops and moreover the sale agreement in respect of the disputed flat if be any, is not valid, subsisting or binding upon those ops.
It is specifically mentioned that the developer did little or no progress and could not secure a sanctioned plan from the KMC for the purpose of constructing a multi storied building at premises No.16, Lakshmi Dutta Lane, P.S.- Shyampukur, Kolkata – 700003 since entering into a development agreement dated 19.10.2011 for which ops cancelled the registered power of attorney dated 19.10.2011 by registered deed of Revocation of Power of Attorney dated 10.09.2014 and also caused publication of a lega notice in a leading Bengali News Paper on 22.09.2014 through their Advocate announcing the Revocation of the Registered Power of Attorney dated 19.10.2011.
So, in the above circumstances, op nos. 1 to 4 have their no legal right to execute any deed or to execute any legal right to claim against those op nos. 7 to 10.It is specifically mentioned by the ops that in fact the sale agreement dated 12.12.2011 stood terminated and lost its force and the op nos. 1 to 4 already handed over cheques for refund of money.
In the above circumstances, the present complaint is not tenable against answering op nos. 7 to 10 and no relief can be granted in favour of the complainant against this and prayed for dismissal of this case.
Notices were duly served upon the ops but they did not turn up to contest this case.So, the case is heard accordingly exparte form against other ops but on contest against op nos. 7 to 10.
Decision with reasons
On comparative study of the complaint and written version op nos. 7 to 10 and also considering the documents filed by both the parties, it is clear that Development Agreement amongst the ops was executed on 19.10.2011 and no doubt op nos. 1 to 4 had entered into sale agreement with complainant for sale a flat out of the developer’s allocation and admitted position is that the Registered Power of Attorney was executed on 19.10.2011 by landowners in favour of op nos. 2 to 4.But it is proved that ultimately developer did not secure sanction plan and KMC did not demolish the old structure and has not started to construct a new building in the case premises and that is admitted by the complainant also.In that situation complainant went to the op nos. 1 to 4 who ultimately expressed their inability to proceed with the case of the said construction work and handed over six cheques for refund of the money of Rs. 5,10,000/- but it is proved that those cheques were dishonoured and again complainant went to the op nos. 1 to 4 and reported such dishonor of cheques when they issued fresh six cheques to repay the entire amount accordingly those chequeswere also dishonoured.Thereafter op nos. 1 to 4 did not entertain the complainant and did not refund Rs. 5,10,000/- which was received by the op nos. 1 to 4 as per agreement for sale dated 12.12.2011.
It is also found from Development Agreement dated 19.10.2011 as per Clause 16 that Developer shall have to hand over the land owners allocation along with completion certificate from KMC to the land owners at first, thereafter shall execute a registered deed of sale of any portion of developer’s allocation in the said building in favour of the intending buyers and developer shall have to agree in respect of his allocation and to receive an earnest money and full amount and consideration of the intending buyer thereby shall deliver the possession to them.
So, considering that clause, it is clear that developers ought to have first completed the building and shall have to hand over the possession of the land owners’ allocation along with completion certificate etc.Thereafter the developer may sell the flats from his allocation, not from the allocation of the land owners and to receive money by the developer from the intending buyers.Considering that clause, it is clear that developers right will come into effect after completion of the construction of the new building in the case premises as per said Development Agreement.But truth is that as per said agreement no sanctioned plan is secured by the Developer, no construction has been made, no demolition of old structure has been made. So, the said clause is not at all applicable in the present case when in the meantime the Power of Attorney which was granted in favour of the ops by the landowners had already been cancelled by a revocation of Power of Attorney dated 10.09.2014.
So, op nos. 1 to 4 have their no right in respect of said building of the said premises and from the complainant’s own complaint, it is proved that developer expressed that they are unable to construct the building and for which they issued 6 cheques to clear up the amount of Rs. 5,10,000/- that means complainant intended to get refund of the amount and the agreement to sale was cancelled by the op nos. 1 to 4.When that is the fact, then invariably the entire conduct of the op nos. 1 to 4 is/was nothing but deceitful manner of act in dealing with housing construction and also in respect of selling the flat to the intended buyers and such sort of act is no doubt treated as unfair trade practice and no doubt complainant has been harassed by the op nos. 1 to 4 and in so many other cases also in such a manner op nos. 1 to 4 have squeezed money from the intended buyers and thereafter they are avoiding to refund the amount which has been accepted by the op nos. 1 to 4 to execute such sort of sale in favour of intending purchaser including the complainant.
Moreover in this case op nos. 1 to 4 deceived the complainant by issuing six chequesfirst time and that was dishonoured and by that act ops deceived the complainant though cheques were issued but dishonoured.Again further six cheques were issued to clear up the refund of Rs. 5,10,000/- to the complainant and those cheques were also dishonoured, that means such an act on the part of the op nos. 1 to 4 is unfair practice and they adopted it with full knowledge and with intention to deceive the complainant with intention to harass the purchasers and considering the above conduct of the ops we are convinced to hold that not only complainant is harassed by the op nos. 1 to 4 but she has been deceived by op nos. 1 to 4 also.At the same time complainant has lost her huge interest over the said amount and for which the complainant is entitled to get a decree and relief against op nos. 1 to 4 only but the case should be dismissed against op nos. 7 to 11.But op no.7 Sasanka Chatterjee died and his legal heirs 7a and 7b had already been made party.In the result the complaint succeeds along with cost and compensation etc. against op nos. 1 to 4.But it fails against op nos. 7 to 11.
Hence, it is
Ordered,
That the complaint be and the same is allowed exparte against op nos. 1 to 4 with cost of Rs. 10,000/- and same is dismissed on contest against op nos. 7 to 11 without any cost.
Op nos. 1 to 4 jointly and severally are hereby directed to refund the entire amount of Rs. 5,10,000/- to the complainant along with interest 12 percent p.a. w.e.f. 12.12.2011 and till its full payment to the complainant.
For harassing the complainant and for deceiving the complainant and also for adopting unfair trade practice, op nos. 1 to 4 jointly and severally shall have to pay a sum of Rs. 1,00,000/- to the complainant and to protect the interest of the different customers and to check such sort of unfair trade practice and deceitful manner of trade as adopted by the op nos. 1 to 4 penal damages of Rs. 50,000/- is imposed upon the op nos. 1 to 4 and same shall be deposited to this Forum and it is imposed to check future unfair practice by the op nos. 1 to 4.
Op nos. 1 to 4 jointly and severally are hereby directed to comply this order within one month from the date of this order, failing which for non-compliance of the Forum’s order, penal action shall be started u/s 25 read with section 27 of C.P. Act, 1986 for which further penalty and fine shall be imposed upon ops.
