Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

                    The case of the complainants as per their complaint is as follows-

            1) The complainant is a consumer of the OPs as defined under Section 2(1) (d) (ii) the provision of consumer protection act 1986. And the OP no 1 is a partnership firm/ OP no. 2 to 5 are the partners of the OP no. 1/ they are developers engaged in the business of housing construction carrying on business under the name and style “D.P.N. Builders” and the OP no. 6 to 9 are the legal heirs of Late Madhusudhan sarkar who was the owner of the property wherein he allowed the OP no. 1 to 5 to construct a multistoried building complex for the construction and promotion.

2) That the OPs have prepared a building plan which was approved from the executive office, Matigara Panchayet samity, vide registration no. 288/MPS vide order no 286/MPS dated 19/09/2012.

3) That subsequently OP no 1 to 5 constructed/ developed one residential flat in the multistoried building with proportionate undivided share of land on which the multistoried building stand and with the right to common facilities and common areas to the building free from all encumbrances and named it as “GOBINDA RESIDENCY” at Baramohan Singh, Shivmandir, P.O Kadamtala, P.S Matigara, Dist Darjeeling Consisting G+5 Building constructed and standing therein.

4) That in the year 2014 the OPs approached to the complainant to purchase one residential flat together with proportionate undivided share of land on which the multistoried building stand and also with the right to common facilities and common areas to the building free from all encumbrances and the complainant considering the then market value of residential flat agreed for purchasing the said residential flat from the OPs.

5) That on 05/02/2013 the complainant entered into an agreement with the O.P.s for purchasing a residential flat measuring 1201 square feet (more or less) including super build-up area (more or less) and a garage on the ground floor described in Schedule “A”, North – East side, with undivided common right and interest in all common areas of the building with proportionate undivided and un partitioned share and interest in the land described in the schedule “H” in the building as shown in the map with the O.P.s of the said Deed of Agreement dated 05.02.2013. As per agreement the complainant gave a sum of Rs. 5,00,000/- to the O.P.s by the way of cash out of total consideration amount of Rs 25,22,100 and there by the complainant became the consumer for availing the services of the OPs (Copy of agreement of Sale dated 05.02.2013 is enclosed with annexure I).

6) The complainant further paid Rs. 17,50,000/- to the O.P. No. 1to 5 and subsequently the said O.P.s issued money receipt only of Rs. 2,50,000/- (Copy of Money Receipt dated 12.08.2015 is enclosed with annexure II) and the rest sum of Rs. 15,00,000/- was received by the O.P. No.1to 5 from State Bank of India SME Branch, Siliguri as the complainant obtained a loan by the way of mortgaging the said Agreement for sale dated 05.02.2013 by the way of an account payee cheque being no. “969813” dated 23.12.2013 (Copy of the cheque being no. “969813” dated 23.12.2013 of Rs. 15,00,000/- is enclosed with annexure III).

7) That the Complainant has already paid most of the total consideration money to the ops on good faith believing that the OPs will hand over the physical possession of the residential flat measuring 1201 Square Feet ( More or Less) including super build-up area (more or less) and a garage on the ground floor described in Schedule “A”. The O.P.s. had assured the complainant that they will take an immediate action from their end to execute the necessary sale deed in favor of the complainant and they will handover/ deliver physical possession of the said flat to the complainant.

8) That despite receiving most of the consideration amount from the complainant the O.P.s took no positive initiative to deliver up and hand over physical possession of the flat to the complainant/ the complainant on several occasions requested the O.P.s for registering the sale Deed in respect of the flat in favor of the complainant after taking balance amount of Rs. 20,22,100/- from him but the O.P.s without any reason took no step from their end.

9) That in Para no. 6 of the Deed of Agreement dated 05.02.2013, in the terms and conditions being Para no. 7, it was clearly mentioned that the O.P.s will serve a written notice to the complainant and shall be called upon to take possession of the said flat making the payment as mentioned in the scheduled within 30days from the service of notice of completion but even after passing of the reasonable period the OPs did not serve any notice to the complainant and ignored the request of the complainant to delivered the physical possession of the flat./ the complainant thereafter went to the OPs and requested them for execution of sale deed in respect  of the flat and also requested them to delivered possession but the OPs without execution of sale deed misbehaved with the complainant.

10) That in para no. 13 of the deed of agreement dt. 19/09/2014 it is mentioned that the OPs are bound to handover the vacant and peaceful possession of the residential flat by 28/02/2015 but they did not deliver the same to the complainant/ they also did not deliver physical possession of the flat/ did not execute the necessary sale deed in respect of the flat to the complainant.

11) That the O.P.s by not delivering physical possession of the flat in favor of the complainant and not by execution of sale deed have proved that they have been grossly negligent and deficient in service which caused loss, injury, damages and harassment to the complainant and there was a deficiency in service as well as unfair trade practice on the part of the OPs.

12) That the O.P.s have already received the consideration amount from complainant but not yet supplied the complainant with the detailed measurement of the flat as well as the occupancy certificate and did not give the proper registration of the flat to the complainant till date though several request made by the complainant, thereby violated the terms of agreement dt. 19/09/2014 and the OPs are liable to compensate the complainant for loss suffered by him.

13) That the complainant further paid a sum of Rs. 1,00,000/- in cash to the O.P. No.1 to 5 for th purpose of flooring and wall titles in the kitchen and toilets as the O.P.s failed to deliver the complete form of the flat as per the agreement.  

14) The cause of action arose in the year 2015 and also on 05.02.2013 when the O.P.s entered into the deed of agreement with the complainant to sale the flat after receiving the consideration amount and on several dates when the complainant went to the OPs to  pay the balance amount and requested them for registration of the flat but they deliberately ignored the complainant.

The Complainant has filed the case against the O.Ps and praying for the following order/relief:

1. Direction against the O.Ps to pay a sum of Rupees 1,60,000/ to the complainant towards compensation as well as cost of repairs borne by the complainant or pass a direction to the O.P.s to rectify the defect as enumerated above or pay a sum of Rs. 1,60,000/-.
2. Direction against the O.P.s to execute and register the necessary sale deed in respect of the scheduled mention flat together with all amenities and common facilities as mentioned in the agreement dated 05/02/2013 in favour of the complainant after taking balance in  consideration money of Rs. 2,72,100/- within 7 days from the disposal of the case.
3. Direction against the O.P.s to pay a sum of Rs.30,000/- as compensation for violation of the terms of the agreement for sale dated 5/2/2013 and for non supplying of occupancy certificate after 20 months from the date of execution of agreement for sale which was agreed to be supplied to the complainant within 1 month from the date of execution of agreement for sale.
4. Direction against the O.P.s to pay a sum of Rs. 75,000/- to the complainant on account of compensation for deficiency in service as well as unfair trade practice as well as for harassment, mental torture and agony caused to the complainant by the O.P.s.
5. Direction against the O.P.s to handover and delivered up clear, khas and vacant physical possession of the schedule mentioned flat within 7 days from the disposal of this case.
6. Direction against the OPs to pay a Sum of Rs. 50,000/- to the complainant on account of punitive damages.
7. Direction against the OPs to pay a Sum of Rs 10,000/- to the complainant towards cost of legal proceedings.
8. Any other relief/ reliefs to which the complainant is legally entitled.

To prove the case the Complainant has filed the following documents:-

1. Copy of deed of agreement dated 05.02.2013 executed by and between the complainant and the OPs. (Annexure I).
2. Copy of money receipt dated 12.08.2015. (Annexure II)
3. Copy of the cheque being no. “969813” dated 23.12.2013 of Rs. 15,00,000/-. (Annexure III)
4. Copy of Housing Loan Sanction Letter dated 11.12.2013 issued by the State Bank of India SME Branch, Siliguri. (Annexure IV)

On receipt of notice the OPs no. 1 to 5 appeared before this Commission, filed their written version and denied all the material allegations of the complainant. They have stated that the instant case is not maintainable in its present form/ there is no cause of action for filing this case/ the complaint is barred by limitation/ the complaint is hit by the provision of consumer protection act/ the complainant has no locus standing to file the complaint / this commission has no jurisdiction to entertain this complaint/ the complainant has filed this case for wrongful gain/ complaint is barred by the principal of estoppels, waiver and acquiescence/ the complaint is bad for mis-joinder and non-joinder of party.

In the written version the O.P. No. 1 to 5 stated that Madhusudan Sarkar was the owner of the land measuring 11.5 decimals who by virtue of a registered deed of sale dated 13.10.1982 being document no. 5765 for the year 1982 got the property appertaining to plot no. 401/1139, Khatian no. 57/1 in mouza – Baramohan Singh, JL no. 96 P.S Matigara dist. Darjeeling and the name of Madhusudan Sarkar was duly mutated in the new LR/ ROR being Khatian No 4862 plot no. 763 (New). In the W.V. they also stated that during the life time of  Madhusudan Sarkar he approached the O.P. No. 1 to 5  to develop the said land by constructing  multistoried building  and the O.P. No. 1 to 5 accepted the offer of Madhusudan Sarkar and development agreement was executed between Madhusudan Sarkar and O.P. No. 1 to 5 on 02/02/2011 with certain terms and conditions/ amongst the principal terms of the agreement being that the O.P. No. 1 to 5 shall pay a sum of Rs. 41,50,000/-  along with a 100 square Feet shop room space in Ground Floor of the to be  constructed building as the consideration for the said Madhusudan Sarkar for having permitted the O.P.s to construct a building on the said land and the rest of the constructed space would be the share of the O.P. No. 1 to 5 in terms of the agreement/ on the said date of execution of development agreement Madhusudan Sarkar also executed a general power of attorney in favor of the Op no. 1 to 5 for constructing the building on the said land by making investment and also to enter into agreement for sale with intending purchaser and receive advance / part consideration thereof. They also stated in W.V. that on the date of execution of development agreement on 02.02.2011 O.P. No. 1 to 5 paid a sum of Rs. 6,00,000/-, on 09/05/2011 a sum of Rs. 5,50,000/-, on 08/06/2011 Rs. 5,00,000/-, on 07/07/2011 Rs. 3,00,000/-, on 04/08/2011 Rs. 4,00,000/- and on 08/09/2011  Rs. 3,00,000/-  in total a sum of Rs. 26,50,000/- in cash and cheque which was acknowledged / admitted by Madhusudan Sarkar who issued money receipt in favor of O.P. No. 1 to 5. They also stated that at their own cost they got the plan for 6^th storied building approved from the concern authorities vide order no 286/MPS dated 19/09/2012 and they proceeded with the construction immediately, more or less completed the construction of the building within October 2014 within the time stipulated in development agreement/ in the meantime Madhusudan Sarkar in lieu of balance consideration of Rs.15,00,000/- express his desire to take a flat in the building and  as per proposal of  Madhusudan Sarkar  the O.P. No. 1 to 5 entered into an agreement for sale with Madhusudan Sarkar on 25/03/2013 whereby a flat measuring 870 Square Feet including the proportionate share of the land in the 2^nd floor front portion was to be given to that Madhusudan Sarkar and the consideration amount of Rs. 15,00,000/- was to be adjusted from the balance consideration arising out of the development agreement payable to the said Madhusudan Sarkar. In the W.V. the O.P. No. 1 to 5 have also stated that on 18.02.2015 Madhusudan Sarkar died leaving behind the OP no. 6 to 9 as his only legal heirs which is evident from two affidavits dated 17.04.2015 and 07.04.2017 as sworn by the O.P. No. 6 & 7 respectively and after death of Madhusudan Sarkar O.P. No. 1 to 5 mutated the land in the names of O.P. No. 6 to 9 by paying land taxes to the concerned authority. The O.P. No. 1 to 5 also handed over possession of the flat measuring 870 square feet vide agreement dated 25.03.2013 in favour of the O.P. No. 6 to 9 along with the shop room measuring 100 square feet in the Ground Floor. They also stated that immediately on receipt of benefits of the development agreement the legal heir of late Madhusudan Sarkar with reference to O.P. No. 6 to 8 executed a general power of attorney in favour of the OP no. 1 to 5 vide registered power of attorney dated 03.07.2015 which was duly registered in the office of the A.D.S.R., Siligur-I empowering the O.P. No. 1 to 5 to deal with the three fourth share of OP No. 6 to 8 in respect of the land and the said power of attorney is valid and subsisting and the O.P. No. 9 being one of the legal heir of late Madhusudan Sarkar never cooperated the O.P. No. 1 to 5 and denied to sign deeds of conveyance in favour of the purchasers of the O.P. No. 1 to 5 and the O.P. No. 9 is equally bound by the development agreement executed between his Late father and the O.P. No. 1 to 5 since the building has been fully constructed by way of huge investment by the answering O.P.s and the interest acquired by the O.P. No. 1 to 5 by virtue of the development agreement is a grant coupled with interest and the said agreement cannot be terminated, cancelled and/or revoked by the O.P. No. 9 and O.P. No. 9 is legally under obligation to performed the said development agreement. In the W.V. it is also claim of the O.P. No. 1 to 5 that they requested O.P. No. 9 to execute and register deed of conveyance in favour of the purchaser of the O.P. No. 1 to 5 but the O.P. No. 9 always demand a huge sum of money to the tune of Rs. 25,00,000/- from the O.P. No. 1 to 5 and the O.P. No. 1 to 5 expressed their inability to pay the same and the O.P. No. 6 to 8 also demanded huge sum of money from them who told that they will cancel the power of attorney which was granted in favour of O.P. No. 1 to 5. In Para no. 14, the O.P. No. 1 to 5 stated that the complainant has paid a sum of Rs. 20,00,000/- as advance and part consideration to O.P. No. 1 to 5 out of agreed amount of Rs. 25,22,100/- subject to confirmation of accounts, final measurement of the flat and outstanding payment for extra work statutory liabilities and other expenses payable to the O.P.s No. 1 to 5 . The O.P. No. 1 to 5 denied specifically the contents of the complaint and has stated that they have already got possession of the flat to the complainant which he is fully enjoying the benefits of the said flat without paying the balance consideration to them and that’s why there is no cause of action to file this case by the complainant and they never adopted unfair means and they performed the terms and conditions of agreement 05.02.2013 saves and except the registration of sale deed which could not be completed due to the latches and negligence and unfair demand of the O.P. No. 6 to 9.

Having heard the Ld. advocate of both the sides and on perusal of the written complaint, written version of the OPs and documents filed by the parties the following points are to be considered by this commission.

Points for consideration

1. Whether the Complainants is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the Principal O.Ps. as alleged by the Complainants?
4. Is the Complainants are entitled to get any award and relief as prayed for as per the prayer of their Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

In order to prove the case the complainant himself adduced evidence by way of filing examination-in-chief in the form of an affidavit. The complainant has also filed another evidence through Dr. Manaranjan Chowdhuri as PW-2 by way of affidavit in chief.

In the Written complaint as well as in the evidence of the PW-1 & PW-2 the complainant has specifically corroborated the contents of the complaint who specifically stated on which day agreement of sale was executed by and between the complainant and O.P. No. 1 to 5. The complainant has stated in his evidence regarding the mode of payment and in support of its claim the complainant has filed money receipts which were issued on the side of the O.P. No. 1 to 5. The complainant in his written evidence has also specifically stated that despite receiving the most of the consideration amount the O.P. No. 1 to 9 did not obey the terms of conditions narrated in the deed of agreement for sale. The complainant has also specifically stated that on several occasions he requested the O.P. No. 1 to 5 for peaceful delivery of possession of the flat and also requested for registered the sale deed in his favour but of no result. By filing the evidence of the witness and also by filing W.N.A. the complainant praying for necessary order in this regard.

To falsify the case of the complainant the O.P.s were given liberty to file their evidence. But despite opportunities were given to the O.P.s they did not file any evidence on their behalf.

At the time of argument Ld. advocate of the complainant submitted that the complainant has be able to prove the case against the O.P.s not only through their evidence in chief but also by producing several documents including the deed of agreement for sale as well as money receipts. He also argued that there is no denial on the part of the O.P. No. 1 to 5 regarding payment of the consideration amount as well as regarding execution of deed of agreement for sale in respect of the flat. Ld. Advocate of the complainant also referred decisions of CPJ 2006 VOL-IV page 213, NC.

The O.P. No. 6 to 9 did not turn up before this Commission though notice were served on them. Accordingly this case is continuing for ex-parte hearing in respect of the O.P. No. 6 to 9.

Though the O.P. No. 1 to 5 appeared before this Commission, filed their W.V. but they did not file any W.N.A. on their behalf.

Having heard the Ld. advocate of both the side and on perusal of the entire record it is admitted fact that one deed of agreement for sale of flat was executed by and between the complainant and O.P. No. 1 to 5. It is also admitted fact that the complainant had already paid most of the consideration amount excepting balance consideration money of Rs. 2,72,100/- to the O.P. No. 1 to 5 . From the W.V. which was filed on behalf of the O.P. No. 1 to 5 the O.P. No. 1 to 5 in Para no. 14 have specifically stated that the complainant has already paid 20,00,000/- to them out of Rs. 25,22,100/-. In the W.V. the O.P. No. 1 to 5 also admitted that they are not been able to register a deed of sale in favour of the complainant due to non cooperation of the O.P. No. 6 to 9 who received the agreement amount from the O.P. No. 1 to 5 and also took delivery of possession of 100 square feet shop room in the ground floor and 870 square feet in the 2^nd floor front portion.

From the evidence of the complainant it is very much proved that O.P.s have failed to give any satisfactory reasons to render proper service towards the complainant and the conduct of the O.P.s towards the complainant were totally illegal and mala fide in nature for which the complainant suffered both mental and financial loss. From the W.V. of the O.P. No. 1 to 5 and from the evidence of the complainant it is also proved/admitted that till today the OPs have failed to register the deed of sale in favour of the complainant though there was an agreement which was executed by and between the parties.

It is needless to mention here that till today the O.P.s take no positive steps from their end to registered the necessary sale deed in respect of the residential flat in favour of the complainant after taking the balance amount of Rs. Rs. 2,72,100/- which is nothing but the deficiency in service as well as unfair trade practice on the side of the O.P.s towards the complainant.

Considering the unchallenged evidence of the complainant and considering the documents filed by the complainant we are of the view that the complainant has been able to prove the case against the O.P.s.

Hence,

O r d e r e d,

That the instant Consumer Case being no. 98/2018 is allowed on contest but in part against the OPs no. 1 to 5 and ex-parte against the OPs no. 6 to 9.

All the OPs are jointly and severally liable to pay the awarded amount. All the O.P.s are directed to pay a sum of Rs. 1,00,000/-(Rupees One Lakh) only to the complainant towards compensation for deficiency in service and restrictive trade practice. All the O.P.s are also directed to execute and register the necessary sale deed in favour of the complainant in respect of the residential flat measuring 1201 square feet (more or less) including super build-up area (more or less) and a garage on the ground floor described in Schedule “A”, North- East side, in the Gobinda Residency at Baramohan Singh, Shivmandir P.O. Kadamtala P.S.-Matigara, Dist.- Darjeeling together with all amenities and common facilities as mentioned in the agreement dated. 05.02.2013 within 45 days from this day after taking the remaining considering amount. All the O.P.s are also directed to pay a sum of Rs. 30,000/-(thirty thousand rupees) only to the complainant towards compensation for violation of the terms of the agreement for sale dated 05.02.2013 and for non supplying of occupancy certificate in favour of the complainant.

The O.P.s are also directed to pay a sum of Rs. 10,000/-(Ten thousand rupees) only to the complainant as expenses of legal proceedings and the O.P.s are also directed to pay a sum of Rs. 10,000/- (Ten thousand rupees) only  in favour of the Consumer Legal Aid Account of this Commission.

All the O.P.s are directed to pay the awarded amount within 45 days from this day and also directed to comply the direction for execution of the sale deed in favour of the complainant failing which the complainant is at liberty to file execution case against the O.P.s and the O.P.s shall have to pay an interest @ 9 % per annum after 45 days from this day till making payment of the entire amount.

Let a copy of this final order be given to the parties free of cost.