In a bird’s eye view complainants’ case is that complainants hired the services of Opposite Parties upon payment of consideration and service charges.
That OP 1 is a proprietorship firm and OP 2 is representing OP 1 firm. In other words it can be said that OP 1 and OP 2 are engaged in promoting and developing the land for the purpose of providing residential flats, garages, commercial spaces to the customers or intending purchasers. OP nos.3 to 7 are the land owners/vendors of the landed property on which one G+3building proposed to be erected.
OP 1 and OP 2 have entered into an agreement for development of land for raising construction with the OP nos.3 to 7 on 31.05.2018. OP 1 and OP 2 also empowered by OP nos.3 to 7 to carry on their works of development on the strength of registered power of attorney.
Subsequently after getting sanction plan OP 1 and OP 2 was supposed to start construction work on the land in question.
The complainants with an intention to purchase one residential flat (details of which has been mentioned in schedule ‘B’ of the petition of complaint) entered into an agreement for sale with OP nos.1 and 2 on 10.11.2018 at a total consideration of Rs.9, 30,345/-only and on the date of agreement complainants paid an amount of Rs.5, 04,000/-only by different cheques.
One day complainants decided to visit the site wherein construction work of the project namely ‘Madhyamoni’ was scheduled to be going on but reaching at spot complainants found that no work of the said project had yet been started.
Then complainants went to the office of OPs and on asking of the complainants OPs have failed to show any satisfactory reason for non starting of work of the said project in question. Complainants also allege that at the time of booking OPs assured that after booking formal allotment and agreement for sale will be executed by and between the complainants and the OPs, but till date no such steps/initiative has been taken by the OPs to execute the same.
Complainants subsequently stopped to make any further payment in favour of the OPs as per payment schedule as the OPs failed to start the constructional work of the project including the flat in question of the complainants.
Further case of the complainants is that after passing so many years it is utter surprise to the complainants that developers have not started the construction work till date. Complainants allege also that the total incomplete and unfinished work in respect of the said project as well as the said flat of the complainants have been made by the OPs intentionally and deliberately to harass the complainants. Complainants on several occasions requested the OPs to complete and finish the construction work but OPs did not pay any heed to those requests.
Lastly complainants sent several e-mails to the OPs and requested to do the needful but all in vain, though then complainants expressed their willingness and readiness to perform their duties to complete the registration work in respect of a flat in question. Complainants specifically state that the OP 1 and OP 2 have taken money of Rs.5, 04,000/-only for the purpose of selling the flat in question to the complainants and also entered into an agreement for sale and accordingly they are liable to perform their part of duties. Complainants also state that it is gross negligence on the part of the OPs and which is highly deficient in nature and because of such acts/omissions the part of the OPs complainants have suffered huge mental, physical coupled financial harassment and for that the OPs are liable to compensate the complainants.
Thus, complainants have prayed for the followings:-
- Direction upon the OPs to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants and to hand over the possession of the same to the complainants.
Alternatively, direction upon the OPs to refund the entire paid consideration money of Rs.4, 54,000/-only with statutory interest thereon to the complainants.
- Direction upon the OPs to complete the incomplete work of the construction work in respect of the flat in question.
- Direction upon the OPs to pay Rs.2, 00,000/-only to the complainants as compensation towards harassment, mental agony and also for negligent act and deficiency in service on the part of OPs.
- Direction upon the OPs for cost of proceedings.
OP nos. 3 to 7 have contested the case by filing written version denying all material allegations of the complainants and contended inter alia that OP nos.3 to 7 being the land owners of the land in question have entered into a development agreement with OP 1 and OP 2 and they also executed one development power of attorney in favor of OP 1 and OP 2.
That OP 1 and OP 2 obtained building plan sanction and started construction work therein.
That during the continuation of the construction work therein OP 1 and OP 2 being developers entered into an agreement for sale with the intending purchasers from the developer’s allocation and the present complainants are one of the intending purchasers and the flat in questions stands in the allocation of developer’s allocation.
That OP nos.3 to 7 also state that alleged payment of any consideration amount for the alleged flat has been made by the complainants to the OP 1 and OP 2.
OP nos.3 to 7 also state that the delay in executing the deed of conveyance in favour of the complainants in respect to the flat in question, the liability completely lies upon OP nos.1 and 2, but for ends of justice and equity if the Commission (formally Forum) passes any order directing OP nos.3 to 7 being the land owners to perform any duty, then these OP nos.3 to 7 being the law abiding and peace loving citizens would comply the same.
Finally, OP nos.3 to 7 have prayed for dismissal of the case.
OP 1 and OP 2 did not contest the case and accordingly vide order dated 17.12.2020 this Commission (formally Forum) passed an order observing that case would proceed ex parte against OP 1 and OP 2.
POINTS FOR DECISIONS
- Whether the complainants are the consumer to the OPs?
- Whether this Commission (formally Forum) has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether there is any gross negligence, deficiency in service on the part of OPs?
- Are the complainants entitled to get relief/reliefs as prayed for?
For the sake of convenience and brevity of discussion all the points are taken up for discussion conjointly.
On close scrutiny of the materials on record it reveals that the complainants are the consumer u/s 2(d) (II) of the C.P. Act, 1986 to the OPs.
Complainant no.1 appears to be the resident of district North 24 pgs, West Bengal and complainant no.2 appears to be the resident of district Howrah, West Bengal whereas the office of OP 1 is within district North 24pgs, West Bengal and OP 2 is a resident of New Town, Kolkata and the OP nos.3 to 7 are the residents of district North 24 pgs. Considering the nature of the case and the prayers of the complainants it clearly indicates that subject matter of dispute is nothing but a consumer dispute and straightway gives the clear signal that the pecuniary value of the case is within 20 lakhs i.e. within the limit of this Commission (formally Forum). So, this Commission (formally Forum) has territorial and pecuniary jurisdiction to entertain and try this case.
In support of their case complainants have filed evidence on affidavit contents of which appears to be a replica of the contents of petition of complaint more-or-less.
Whereas on the other hand in spite of availing opportunities contesting OPs did not file evidence resulting which this Commission (formally Forum) vide order dated 19.04.2023 has closed the opportunity of contesting OPs for filing evidence.
It may be noted that in support of their case on complainants’ behalf BNA has been filed.
This Commission (formally Forum) is not oblivious to the fact regarding the questionnaire of the contesting OPs and the reply of the complainants on that score.
Touching upon the submissions advanced by the Ld. Counsel appearing for the complainants including the materials on record it may be pointed out that it is undisputedly proved that complainants have paid Rs.5, 04,000/-only out of total consideration money of Rs.9,30,345/-only in respect of the flat in question. It is also not at all disputed that materials on records sufficiently indicates that OP 1 and OP 2 being the promoters/developers did not complete the construction on the land in question including the flat in question which intended to be purchased by the complainants.
The materials on record amply and elaborately are focusing that from the very inception of the agreement for sale in question between the complainants in one side and OP nos.1 and 2 in other side including payment of Rs.5,04,000/-only from the end of complainants to OP nos.1 and 2, specially the OP no.1 and 2 by their maneuvering art practice and by their foul acts have tried to frustrate the dream of complainants for purchasing the flat in question and the OP 1 and OP 2 thereby acted in such a fashion causing huge suffering mentally and physically to the complainants along with financial harassment and such nefarious acts on the part of OP 1 and OP 2 clearly exhibit their gross negligence as well as deficiency in service.
It is pertinent to mention that OP nos.3 to 7 being the land owners of the land in question have specifically mentioned in paragraph no.10 of their W/V to the effect that for ends of justice and equity if this Commission (formally Forum) passes any order directing OP nos.3 to 7 to perform any duty, then OP nos.3 to 7 would comply the same in its true spirit. So, it is palpably clear that this part of version appearing in the contents of W/V of OP nos.3 to 7 in fact, is supporting otherwise the case of complainants.
Vide order dated 26.05.2022 this Commission (formally Forum) in connection with MA/73/2022 being the application of OP 1 and OP 2 praying for rejection of complaint passed an order observing that OP 1 and OP 2 did not have any right to prefer any such application as the case is running ex parte against them and accordingly the said MA case no.73/2022 stands as rejected.
No doubt OP 1 and OP 2 tried their best directly or indirectly to resist the claim of the complainants in various ways, but their resistance on that score is not coming directly into the battle field to battle face to face exhibiting an example on the part of OP 1 and OP 2 that it is their tricky game so that the amount already paid by the complainants towards booking of the flat in question may be stalled and OP 1 and OP 2 could enjoy the wrongfully/illegally.
In view of the foregoing discussion and considering the attending facts and circumstances of the case this Commission (formally Forum) is of the view that complainants have succeeded in proving their case and as such they are entitled to have the reliefs as sought for.
Hence, it is,
Ordered
that the case no.CC/71/2020 be and the same is allowed on contest against OP nos.3 to 7 and on ex parte against OP 1 and OP 2 with costs.
All OPs are hereby directed to execute and register deed of conveyance in respect of the flat in question in favour of the complainants and will hand over the possession of the same within two months from the date of this order.
Alternatively, OP 1 and OP 2 are hereby directed to pay Rs.5.04,000/-only to the complainants with an interest @8%p.a. with effect from 10.11.2018 till realization of full amount and such payment to be paid by the OP 1 and OP 2 within 2 months from the date of this order.
OP 1 and OP 2 are hereby directed to pay a sum of Rs.50,000/-only to the complainants as compensation for harassment, mental agony and also for negligent act and deficiency in service of them (OP 1 and OP 2) within 2 months from the date of this order.
OP 1 and OP 2 are hereby directed to pay Rs.15, 000/-only to the complainants towards litigation cost to be paid by OP 1 and OP 2 within 2 months from the date of this order.
Let plain copy of this order be supplied to the parties free of costs.
Dictated and Corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
