Brief facts of the case necessary for the adjudication of the present complaint are that a residential flat was booked by the complainant and his friend Jai Prakash Yadav, since deceased in a project of OP 1 Kartick Panja for a total consideration of Rs. 17,50,000/-. An Agreement for Sale dated 29.09.2016 was also executed between the Developer and Purchasers in respect of the said flat. Complainant and his friend Jai Prakash Yadav, since deceased had paid Rs. 10,00,000/- (Rs. 5,00,000/- each) to the OP 1 as part consideration amount. In terms of the Agreement for Sale the Deed of Conveyance would be executed within May, 2017 and if the complainant and Jai Prakash Yadav, since deceased would fail to make payment of balance sale price then the right of the parties under the agreement would be extinguished and OP 1 is liable to be refund the consideration amount of Rs. 10,00,000/- within two months. OP 1 in connivance with said Jai Prakash Yadav executed and registered the flat in favour of OP 2 Vikash Kumar at a consideration of Rs. 12,50,000/-. Despite request the OP 1 failed to refund Rs. 5,00,000/- to the complainant and also cancelled the Agreement for Sale vide letter dated 19.06.2017. Claiming deficiency in service and unfair trade practice, complainant filed the instant consumer complaint before the commission with the following prayer :-

1. To direct the OP 1 to refund Rs. 5,00,000/-,
2. To direct the OP 1 to pay interest @ 25% on the aforesaid amount of Rs. 5,00,000/-,
3. To direct the OPs to pay Rs. 1,00,000/- as punitive damages;
4. To direct to the OPs to pay Rs. 1,00,000/- as compensation and litigation costs;
5. To pass such other reliefs which may be deemed just and equitable in the facts and circumstances of the case.

The OP 1 contested the case by filing WV contending inter alia that consumer complaint is not maintainable. On merit the answering OP admitted that fact of execution of Agreement of Sale dated 29.09.2016 with the complainant and one Jai Prakash Yadav, since deceased in respect of a flat, its sale price and receiving of Rs. 10,00,000/- as sale price out of Rs. 17,50,000/-. The answering OP has no knowledge regarding payment of Rs. 5,00,000/- as alleged by the complainant. Smt. Santilata Mondal erstwhile landowner is the necessary party to the instant case but the complainant did not implicate her in this case.In terms of the agreement for sale the purchasers were bound to get the Sale Deed pertaining to the flat within month of May, 2017 on payment of balance consideration of Rs. 7,50,000/- in default the agreement for sale automatically cancelled and the answering OP shall have every right to sell the flat to any other purchaser. Complainant neither pay the balance consideration amount within the stipulated period nor expressed his willingness to get the flat registered in his favour. Answering OP cancelled the agreement for sale vide legal notice dated 10.06.2017. Subsequently, Jai Prakash Yadav, since deceased approached with a fresh proposal to purchase the flat at a consideration of Rs. 12,50,000/-. Said Jai Prakash Yadav executed a declarationon oath dated 30.06.2017 that Rs. 10,00,000/- previously paid for the flat from his own fund and the complainant had no contribution in the said amount. Ultimately he executed and registered a Deed of Conveyance of the flat in favour of Jai Prakash Yadav, since deceased and his son Vikash Kumar Yadav on receiving balance amount of Rs. 2,50,000/-. The OP 1 therefore, sought dismissal of the complaint.

The complaint is also resisted by the OPs 2 to 6 legal heirs of Jai Prakash Yadav which admitted to purchase the flat on the 1^st floor of premises No. 1433, Dhapa Road, Kolkata – 700 105 at a marketable consideration from the constituted attorney of the landowner.Complainant is not a consumer under the CP Act and there is no cause of action to institute the consumer case. Thus, the OPs prayed for dismissal of the complaint.

In support of his case, the complainant tendered his evidence supported by an affidavit. He also relied the documents annexed with the complaint petition.

To rebut aforesaid evidence, OP 1 tendered his evidence supported by an affidavit along with documents.

OPs 2 to 6 did not tender their evidence despite given opportunities. Thus, the scope of OPs 2 to 6 to file E/chief was closed VO dated 01.04.2022.

We have heard learned counsel for the parties and also given our thoughtful consideration to the contentions raised by them. We have also gone through the record of the case.

Facts remains that Smt. Santilata Mondal entrusted the OP 1 to develop the plot bearing Nos. 377/388 under Pragati Maidan P.S. by virtue of a Development Agreement. OP 1/Developer entered into an Agreement for Sale dated 29.09.2016 with the complainant and one Jai Prakash Yadav, since deceased to sell a self contained residential flat measuring about 630 sq. ft. super built up area on the 1^st floor (south facing) Western side of the proposed building at KMC premises No. 143, Dhapa Road, Kolkata – 700 105 for a total consideration of Rs. 17,50,000/-. It is not in dispute that the complainant and Jai Prakash Yadav have paid Rs. 10,00,000/- out of total sale price of the flat to the OP 1/Developer. It is agreed between the purchasers and Developer that balance sale price of Rs. 7,50,000/- to be paid within May, 2017 failing the agreement for sale stand automatically cancelled and the OP 1 have every right to sell the flat to any other purchaser. It is also not in dispute that if the purchasers failed and neglected to pay the balance sale price within the stipulated period, the OP 1/Developer shall be liable to refund the earnest money to the purchasers without any interest within two months.

We find from the record that the OP 1/Developer vide legal notice dated 14.06.2017 requested the purchasers to pay the balance sale price of Rs. 7,50,000/- within 07 days from the date of receiving notice, otherwise he has no other alternative to sell the flat fully mentioned in the schedule of the agreement for sale dated 29.09.2016 in favour of any intending purchaser/s. The complainant submitted that OP 1 sold the flat in question to Jai Prakash Yadav, since deceased and his son Vikash Kumar Yadav by executing a registered Deed of Sale at a price of Rs. 12,50,000/-. OP 1 admitted the fact that he sold the flat in question to Jai Prakash Yadav and his son at a consideration of Rs. 12,50,000/- on the strength of “Declaration on Oath” of Jai Prakash Yadav as the agreement for sale dated 29.09.2016 automatically cancelled as per terms & condition of the agreement for sale. The OP 1/Developer never refund the earnest money of Rs. 5,00,000/- to the complainant in terms of clause No. 2 of the Agreement of Sale. The declaration on oath of Jai Prakash Yadav have no value in the eye of law. Now the dispute between the complainant and OP 1 cropped up when the complainant claimed refund of Rs. 5,00,000/- as earnest money out of Rs. 10,00,000/-. Smt. Santilata Mondal being the land owner did not have any role to play in all the negotiations of dealing in respect of the sale of the Developers allocation, and in our opinion she is not a necessary party to this case. In our opinion, the complainant falls under the definition of “consumer” as defined U/s 2(7) of the Consumer Protection Act, 2019 and there is deficiency of service defined U/s 2(47) of the CP Act, 2019 as the OP 1/Developer failed to comply with the contractual obligation to refund Rs. 5,00,000/- to the complainant in terms of clause No. 2 of the Agreement for Sale dated 29.09.2016 within a contractually stipulated period amounts to a deficiency.

The OP 1/Developer has also contended that the jurisdiction of this commission would be barred in view of the fact that there is a clause of specific performance of contract in the Agreement for Sale, which can only be decided before the Civil Court. On perusal of the record we find that the complainant and one Jai Prakash Yadav, since deceased entered into an agreement to avail the services of the OP 1 for a consideration. The OP 1/Developer failed to honour the terms of the agreement aggrieved by which the complainant has approached this commission. Hence, the complainant is entitled to file the present complaint before this commission since the complainant is aggrieved by the deficient services of the OP 1 i.e. the failure of the Developer to refund Rs. 5,00,000/- within a stipulated period fully mentioned in the agreement for sale.

Our view is further fortified by the dicta of Hon’ble Supreme Court in Narne Construction P. Ltd., etc –Vs- Union of India & Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a person applies for allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the contractor, the nature of transaction is covered by the expression “service” of any description. Housing construction or building activity carried on by a private or statutory body constitutes “service” within the ambit of section 2(1)(0) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.

Moreover, nothing cogent has been brought on record by the OP 1/Developer which would reflect that there are complicated questions involved in the present dispute which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.

Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the OP 1/Developer.

Keeping in view of the facts of the present case and the extensive law as discussed above, we direct the OP 1/Developer to refund Rs. 5,00,000/- (Rupees five lacs) only to the complainant within a period of 60 days from the date of order. We do not pass any order with regard to compensation or cost of litigation. If the OP 1/Developer fails to comply with the direction made above within the period mentioned above, then the complainant is a liberty to get the order implement with due course of law.

Thus the consumer case is allowed on contest against the OP 1/Developer and also dismissed on contest against the remaining OPs.

A copy of this judgment be provided to the parties free of cost as mandated by the C P Act, 2019. The Judgment be uploaded forthwith on the website of the commission for the perusal of the parties.