Date of filing: 15/02/2022                                                    

Date of Judgment: 19/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed under section 35 of the Consumer Protection Act, 2019 by Smt. Mahua Mukherjee alleging deficiency in service on the part of opposite parties (referred as OPs hereinafter) namely (1) M. S. Construction a proprietorship firm (2) Sri Himadri Sekhar Saha (the proprietor of OP 1) (3) Institute of Physichology and Educational Research (4) Smt. Bijli Mallik (5) Sri Dulal Chakraborty (6) Sri Sisir Chakraborty (7) Sri Samir Chakraborty (8) Sri Bapi Chakraborty (9) Sri Laltu Chakraboty (10) Sri Tarun Chakraborty (11) Sri Barun Chakraborty (12) Sri Tutul Chakraborty (13) Sri Shib Das Chakraborty (14) Sri Sankar Chakraborty and (15) Sri Tarit Kumar Chakraborty (case abated against OP 13 & 15 as they died but their legal heirs not substituted).

Case of the complainant in short is that OP 1 being represented by OP 2 as developer and OP 3 to 15 being joint land owners entered into a development agreement on 29/05/2013 to construct a multi storied building and owners also executed and registered a General Power of Attorney dated 29/05/2013 in favour of the developer. Subsequently by an agreement for sale dated 14/06/2019, OP 1 being represented through OP 2 and also as constituted attorney of the owners OP 3 to 15 agreed to sell a self contained flat along with open car parking space described in the schedule ‘B’ of the said agreement for sale at a total consideration price of Rs. 29,50,000/-. The complainant paid Rs. 7,00,000/- on the date of execution of the agreement to OP 2. The physical possession of the flat was to be handed over within eight months from the date of the execution of the agreement i.e. by February 2020. The period could only be extended for further two months as per the terms of the agreement for sale. But the OPs have not delivered the possession of the flat and car parking space. They have not completed the construction of the common area of the newly constructed building. The deed of conveyance has also not been executed and registered in favour of the complainant. Said building including the subject flat is still incomplete and not in habitable condition. Complainant has always been ready and willing to pay the balance consideration amount of Rs. 22,50,000/- at the time of execution and registration of the deed of conveyance in favour of the complainant. The letter was sent dated 20/09/2021 and 25/10/2021 by the complainant to OP 1 & 2 requesting to complete the construction of the building including the complainant’s flat along with one car parking space and to execute and register the deed on receiving the balance consideration price or to cancel the said agreement and refund earnest money of Rs. 7,00,000/-. Since neither the possession was handed over nor the money was refunded, present complaint has been filed by the complainant praying for directing the OPs to handover the peaceful and vacant possession of the flat in habitable condition along with the car parking space, to complete the unfinished work of the flat or in alternatively to pay Rs. 10,00,000/- to the complainant towards the estimated cost of incomplete works of the flat including open car parking space, execute and register the deed of conveyance in favour of the complainant or in alternatively to refund the booking amount of Rs. 7,00,000/- with 18% interest, to handover the building completion certificate and to pay compensation of Rs. 5,00,000/- for mental agony and harassment, to pay Rs. 5,00,000/- for unfair trade practice and also Rs. 2,00,000/- as litigation cost.

On perusal of the record it appears that OPs did not turn up on service of notice and the case has been heard exparte.

During the course of trial complainant filed affidavit in chief and also filed brief notes of argument.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

In support of her claim that an agreement was entered into between her with the OP 1 as developer being represented by OP 2 the proprietor on 14/06/2019, she has filed the said agreement for sale wherefrom it appears that OP 1 & 2 as developer and constituted attorney of OP 3 to 15 agreed to sell the property described in schedule ‘B’ of the said agreement at a total consideration price of Rs. 29,50,000/-. It is also evident from the receipt filed by the complainant that sum of Rs. 7,00,000/- was already paid by the complainant to OP 2 by way of cheque dated 14.06.2019 and accordingly OP 2 issued the receipt acknowledging receiving of the said sum. However it may be pertinent to point out that as per the terms of the agreement for sale, complainant was to pay Rs. 13,00,000/- after sanction of the bank loan, Rs. 5,00,000/- after completion of the flooring work and the rest of the amount was to be paid by the complainant at the time of taking of possession. Admittedly barring Rs. 7,00,000/- by cheque referred to above dated 14/06/2019, no further sum has been paid by the complainant. The copy of photographs filed by the complainant of the said building indicates that the building has been completed even though it is not fully finished. So if the terms of the agreement are taken into consideration than it is evident that the complainant has also not made the payment in accordance with the terms and conditions of the agreement. A major sum of Rs. 22,50,000/- is due to be paid by the complainant. So since by the notice dated 20/09/2021 complainant had already asked for refund of the sum, it will be appropriate to direct the OP 1 & 2 to refund the said sum of Rs. 7,00,000/- as no contrary material is forthcoming before this commission that OP had offered to the complainant to take possession or that it was ready within the stipulated period. However we find no justification to allow any compensation as prayed by the complainant in view of the observation made above that the complainant herself also did not make further payment as per the terms of the agreement.

Hence

            ORDERED

CC/98/2022 is allowed exparte against OP 1 & 2 and dismissed against rest of the OPs. OP 1 & 2 are directed to refund sum of Rs. 7,00,000/- to the complainant within two months from the date of communication of this order. OP 1 & 2 are further directed to pay Rs. 8,000/- towards litigation cost within the aforesaid period of two months. In default of payment entire amount shall carry interest @ 7% p.a. till realisation.