Dated : 30 June, 2022

Final Order / Judgement

Hon’ble Mr. Sudip Niyogi, President

BREIF FACTS OF THE CASE

The case of the complainant in this case is that OP No. 3 is a developer entered into a joint venture agreement with OP No. 1 & 2 being the land owners to develop and construct one multi-storied building on the land of the OP No. 1 & 2. OP No. 3 was also given Power of Attorney for the said purpose for the said construction on the land around measuring about 4 kathas, 13 chitaks being Premises No. 49 F, Topsia Road (South), P.S- Topsia. OP No. 1 entered into two separate agreements with complainants for sale of two separate units out of his own allocation to the extent of 25 % in respective floors. The agreement with Complainant No. 1 dated 10/06/2018 for shop on the Ground Floor and the other dated 17/07/2018 with Complainant No. 2 for a flat on the 2^nd Floor. According to complainants, so far, they have made payment of Rs.7,00,000/- for the shop and Rs.9,00,000/- for the flat towards consideration price and OP duly received the said amount. Subsequently, the complainants came to know that the flat and the shop which were booked by them were sold and transferred to other persons and they contacted with the OPs and demanded the refund of the said money paid by them. The Complainants alleged deficiency in service and malpractice against the OPs. So, they have filed this case praying for delivery of the flat and shop room as per agreement to them, compensation, cost of litigation etc.

            None of the Opposite Parties appeared to contest this case. So, this case was heard against them ex parte.

Now the point for consideration is whether the complainants are entitled to the relief (s) prayed for.

FINDINGS:

The complainants are found to have produced two agreement for sale, two Passbooks of Union Bank and one letter written by the complainant addressing the three OPs dated 09/09/2021 along with Postal receipts.

            We have perused the documents and evidence on record.

            What we find, the complainants entered into two separate agreements for sale one dated 17/07/2018 between OP No. 1- Dharmendra Ram and Complainant No. 2- Mehjabeen Begum for a flat on the 2^nd Floor front portion of the building with kitchen etc. at a price of Rs.2000/- per Sq. Ft. and the other agreement dated 10/06/2018 between said OP No. 1 and Complainant No. 1- Wasimul Haque for front portion on Ground Floor of the building with kitchen, bath and privy etc. which is found to have been described as shop in the petition of complaint, at a price of Rs.2800/- per Sq. Ft. in the said building. For both the properties, complainants made advance payment to the tune of Rs.16,00,000/- in total to  OP No. 1. Both these properties were to be given to the complainant from the owner’s allocation i.e. the allocation of OP No. 1. Complainant is found to have made said Dharmendra Ram and his brother Jogendra Ram as OP No. 2 in this case and one Sarfaraz Ahmed as OP No. 3 who is said to be the developer. The two agreements bear only the signatures of the complainants and OP No. 1. Neither OP No. 2 nor OP No. 3 was made parties in the said agreement for sale. Barring only a statement about the construction to be made by OP No. 3 nothing mentioned therein specifically as to the said construction nor is there anything as to how and when the said construction to be started and the period by which the construction would be made completed and when the flat or shop as agreed upon to be handed over to the complainant. It is true, one photograph of the building was produced but this photograph itself does not speak anything at all. It is not known also when it was taken. No development agreement, whatsoever, between OP No. 1 & 2 and 3 has been produced. Neither in the petition of complaint nor in the two agreements for sale entered into between the complainant and OP No. 1 no date of proposed construction by OP No. 3 has been mentioned.

            Be it noted, it is found that in both the agreements for sale it has been specifically mentioned that in case of failure on the part of the vendor to sell the flat the purchaser shall have the right to enforce a specific performance of contract.

           We find the complainant is found to have alleged deficiency in service and malpractice on the part of the OPs as the property namely, flat and shop were not handed over to them by the OPs. The term “deficiency” as per Section 211 of the Consumer Protection Act, 2019 means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to the perform by a person in pursuance of a contract or otherwise in relation to any service and includes – (i)- Any act of negligence or omission or commission by such person which causes loss or injury to the consumer and (ii)- Deliberate withholding of relevant information by such person to the consumer.

Here not a single scrap of paper or document has been produced on behalf of the complaint to show that OP No. 2 and OP No. 3 were, in any way, connected with the transfer of property in accordance with the agreement between the complainants and OP No. 1. That being so, how this OP No. 2 and/or OP No. 3 can be held responsible or can be made liable or binding in execution of the agreement between the complainant and OP No. 1. So, this allegation of deficiency in service or malpractice has not at all been proved.

            Be it noted here that mere failure to hand over the possession of flat or plot of land whatever, simpliciter, cannot come within the jurisdiction of the Consumer Commission. Here, there is no iota of evidence showing any hiring of service by the complainant from the OPs. We, in fact, find that the two agreements on which the complainants are heavily dependent are nothing but agreement for sale entered into between complainant and OP No. 1 and if the OP No. 1 failed to execute the agreement by handing over the flat to the complainant the remedy of the complainant lies elsewhere and not by filing a consumer complaint before the Commission on the ground as stated above.

Thus, on the basis of the evidence and the documents produced on behalf of the complainant and in view of the discussion as made hereinabove, we are of the opinion that we are not in a position to allow the prayer of the complainant as made in the petition of complaint. So, the instant case is liable to be dismissed.

Accordingly,           it is         

ORDERED

That the instant complaint be and the same is dismissed ex parte.