Smt. Sangita Paul, Member

This is a case filed by Smt. Kakali Guin, wife of Late Lakhan Kumar Guin, residing at C/2/1-1, Balaka Abasan, New Town, Kolkata-700 156 against Nadhumita Construction, Sri Tuhinghosh, Smt. Madhumita Ghosh, Mrityunjoy Pal Rajdeep Guin with a prayer for directing the OPs to deliver possession of the flat on the northern side of the second floor measuring 1024 Sq.ft. of premises No.173, Nadurdaha, P.S. – Anandapur, Kolkata – 700 107 in complete habitable condition and execute deed of conveyance in favour of the complainant herein alternatively, directing the OPs 1, 2 and 3 t refund the amount of Rs.22,00,000/- being the full consideration of the flat along with interest as agreed by the developer 1 to 3 in the agreement for sale dated 01.07.2021 and payment of further interest on and from November, 2021 till realization to pay Rs.50,000/- as litigation cost. 

OP No.1 is Madhumita construction, a partnership firm, having its office at Dakshin Roy Palli, Baruipur, Kolkata-700 144.

OP No.2 is Sri Tuhin Ghosh.  He is a partner of Madhumita Construction.

OP No.3 is Madhumita Ghosh, who is a partner of Madhumita Construction.  OPs 2 and 3 resided at C. N. Roy Road., Govt. housing Estate, Flat no. K/15, P.S. Tiljala, Kolkata – 700 039.

OP No.4 is Mrityunjoy Pal, Son of Late Ratan Chandra Pal of Shibani Pith, Baruipur, Kolkata-700 144.

Proforma OP is Rajdeep Guin, he is the son of Late Lakhan Kumar Guin, residing at C/2/1-1 Balaka Abasan, New Town, Kolkata-700 156.

The complainant, by filing this case states that the complainant and the Proforma Opposite Party decided to purchase a residential flat in the district of South 24 Parganas of Baruipur.  Then the OPs to the Complainant and Proforma OP went to the Land of one Mrityunjoy Pal, where G+4 multi storeyed building was being built.  The complainant entered into a Development Agreement dated 11.12.2015 with the developer, i.e. the OPs 2 and 3 assured that they would complete the flat and hand over the possession of the flat situated at the North East side of the 1^st Floor measuring about 672 Sq.ft. for a total consideration of Rs.10,00,000/- and accordingly an agreement for sale was prepared by the Developer and was executed by Rajdeep Guin and the developers on 18.07.2016.  At the time of signing the agreement for sale an amount of Rs.2,00,000/- was paid to the developer and the balance amount shall have to be paid upon completion of the said flat.  The developers failed to construct the flat within the stipulated period and a Deed of Cancellation was executed on 02.02.2017.  The new price was fixed at Rs.10,115,000/-.  That project also failed due to paucity of fund.  Another agreement for sale was executed on 10.02.2017.  This time, the measurement of the flat was 997 Sq.ft.  The complainant and Proforma OP also entered into an agreement for sale for purchasing a shop room measuring 250 Sq.ft. on the North-West side of the Ground Floor.

The price was fixed at Rs.2,00,000/-.  The complainant wanted to buy it for livelihood and self-employment.  The developer declared to deliver possession of the same within October, 2017. The husband of the complainant died on 13.08.2010.  The developer again wanted Rs.2,00,000/- for registration. 

The developer failed to execute the agreement for sale one by one.  Again the developer entered into an agreement for sale on 01.07.2021.  He agreed to sell the flat on the Northern side of the 2^nd floor measuring 1024 Sq.ft. of premises No.173, Madurdaha, P.S. – Anandapur, Kolkata-700 107.  The developer committed that either he would deliver the possession or refund the amount of Rs.22,00,000/- i.e. Rs.14,00,000/- along with interest within 3 months from the date of signing the agreement.  But the developer failed to deliver the flat and the shop room.  The hard-earned money of the complainant was blocked.

That the cause of action arose on 18.07.2016, then on 02.02.2017, then on 10.02.2017 and then on 19.06.2019, then on 01.07.2021 and it is continuing day by day.

Hence, the complainant prays for directing the OPs to deliver possession of the flat on the northern side of the 2^nd floor, measuring 1024 Sq.ft. of premises No.173, Madurdaha, P.S.-Anandapur, Kolkata-700 107 in complete habitable condition and execute Deed of conveyance in favour of the complainant herein.  Alternatively directing the OPs 1, 2 and 3 to refund the amount of Rs.22,00,000/- being the full consideration of the flat along with interest as agreed by the developers 1 to 3 in the agreement for sale dated 01.07.2021 and payment of further interest on and from November, 2021 till realization, to pay Rs.50,000/- as litigation cost.

The OPs 1, 2 and 3 in the written version, states that the complaint filed by the complainant is baseless and all the allegations are denied by the OPs 1, 2 and 3.  The agreement for sale was signed on 11.12.2015.  It is the duty of OP No.4 the land lord, to invoke the general power of attorney in favour of the developers, i.e. OPs 1, 2 and 3.  So the OPs 1, 2 and 3 had to face several problems.  Again on agreement for sale was executed between the complainant and Proforma OP on one hand and OPs 1, 2 and 3, on the other.  On 18.07.2016 for selling a flat measuring 672 Sq.ft.  Again that agreement failed.  Another agreement was executed on 07.02.2016 for purchasing a flat, measuring 700 Sq.ft against a consideration of Rs.10,15,000/-.  It is also cancelled due to non-completion of the project.  No question of handing over the flat arises.  Another agreement was made on 10.02.2017 in which a shop room and a flat were added.  The flat measured 997 Sq.ft. and the shop room measured 250 Sq.ft.   OPs 2 and 3, after completing the flat and shop room, wanted to execute the deed of conveyance but OP No.4, the landlord did not cooperate.

OP No.4 wanted to take over the entire project from the OPs 2 and 3.

The complainant and the Proforma OP did not agree to pay the amount of consideration and threatened OPs 2 and 3 to execute and register the deed of conveyance free of cost; otherwise they would hand over the joint venture agreement to the landlord, i.e. OP No.4.

That the OPs 2 and 3 pray for dismissal of the complainant with exemplary cost.

That the complaint case was filed on 21.01.2022.  the case was admitted on 16.02.2022.  On 22.04.2022, no W/V was filed by OP No.2.  Let the case be proceeded ex-parte against OP No.2.  On 02.05.2022, OP No.2 filed a petition for vacating the order of ex-parte and OPs 1, 2 and 3 filed W/V.  Copy served.  The petition for vacating the ex-parte order is allowed and the W/V by OPs 1, 2 and 3 is accepted.  The Op No.4 filed W/V and also filed a petition for expunging the name of OP No.4.  On 16.06.2022, the OPs 1, 2 and 3 and OP No.4 filed two separate W/O against the petition dated 02.05.2022.

On 16.07.2022, the matter is taken up for hearing.  It was contended that OP No.4  is a necessary party to this case and for proper adjudication of the case, the presence of OP No.4 is very much required.  Hence the petition filed by OP No.4 is rejected.  On 22.08.2022, Ld. Lawyer of the complainant files evidence on affidavit along with photocopy of the documents.  Copy served to OP No.4.  On 03.03.2023 the OPs did not file evidence on affidavit and were found absent on calls.  On 15.02.2023, the complainant files BNA.  Proforma OP is also present. Heard argument of the Ld. Lawyer of the complainant in full.  Accordingly, we proceeded for giving judgement. 

OP No.4 in his W/V states that the case is not maintainable before Ld. Court.  

The Op No.4 states that the agreement dated 11.12.2015 is void ab initio.  Tuhin Ghosh and Madhumita Construction cancelled the said agreement on 18.10.2016.  Tuhin Ghosh has no connection with the said property.  So the construction G+4 storeyed building on the land of OP No.4 i.e. Mrityunjay Pal does not arise.  OPs 1, 2 and 3 have no connection with the land. So, the allegations made against OP No.4 do not lie.  It is stated that OP No.4 has no connection with the schedule property.  The OP No.4 has connection with the complainant.  That is why OP No.4 also prays for expunging his name.  OP No.4 also states that the dispute is between OPs 1, 2, 3, Proforma OP No.5 and complainant.  The agreement was also made between OPs 1, 2, 3, Proforma OP No.5 and the complainant.  And it is not binding upon OP No.4.  OP No.4 prays for dismissal of the false fraudulent and harassing case.

Proforma OP No.5 states that he is the son of complainant. 

OP No.4 states what has been stated in the complaint petition is true to the best of his knowledge.  Hence he prays for relief.

                        Points for consideration :-

1. Is the complainant, a consumer?
2. Are the OPs guilty of deficiency in service and unfair trade practice?
3. Is the complainant entitled to get relief as prayed for?

Decision with reasons :-

Point No.1:- 

On perusal of documents and records, it appears that the complainant entered into an agreement with the OPS 2 & 3 for several times from 2015-2021 but each and every project failed. In this respect the complainant made payment.  OP No.1 is the construction company.  He entered into an agreement with the OPs 2 & 3 for purchasing a flat on 11.12.2015 and the price was Rs.10,00,000/-.  The agreement was entered on 18.07.2016 and the complainant paid Rs.2,00,000/-.  Accordingly, the deed was cancelled.  Subsequently, various agreements were made.  Altogether the complainant paid Rs.2,20,000/-.  Hence it appears that the complainant is a consumer u/s 2(7) of the C P Act 2019.  Hence the 1^st point is decided in favour of the complainant. 

Point No:2 : 

From 25.10.2021 Op No.2 and 3 undertook several projects.  But the OPs 2 and 3 failed to execute none of these.  The OPs 2 and 3 wanted to build a G+3 storeyed building on the land of OP No.4.  OP No.4 is the land owner.  OPs 2 & 3 entered into an agreement for sale with the complainant for several times.  But in each and every case the OPs 2 & 3 failed to execute the agreement for sale. All the projects were a total failure.  The complainant failed to get the flat and a shop room.  An agreement was sale was entered between the complainant and OPs 2 & 3 on 11.12.2015.  The total consideration was fixed at Rs.10,00,000/-.  Agreement for sale was prepared and executed by the complainant and the developer on 18.07.2016.  The complainant paid Rs.2,00,000/-. Then a deed of cancellation was executed on 02.02.2017.  Next time the price was increased.  The new price was Rs.10,15,000/-.  That one also failed. Another agreement for sale was executed on 10.02.2017.  The area of the flat was also increased.  This time, the complainant also wanted to buy a shop room along with a flat and the complainant was ready to pay for that.  Again another agreement was signed on 01.07.2021.  This time also, the developer failed to deliver the flat and the shop room.  The complainant’s money was locked but he failed to get the flat and the shop room.  This was due to deficiency in service and unfair trade practice adopted by the OP.  Hence the second point is decided in favour of the complainant and against the OPs.

Point No.03 :-

An agreement for sale was executed on 2015.  Till 2021 several agreements were signed.  The complainant also made a down payment of  Rs.2,00,000/-.  Neither the complainant got the flat and shop room nor did he get the money back.  The complainant spends time in mental agony.  Every time, at the time of new agreement she hoped for a new flat.  But it did not materialized.  The cherished hope of having a home is frustrated.  So the complainant is entitled to relief as prayed for.  Hence the third point is decided in favour of the complainant and against the OPs.

In the result, the complaint case succeeds.

Fees paid is correct.

Hence, it is,

                                                                                 ORDERED

That the complaint be and the same is allowed on contest against OPs 1, 2 and 3 with cost of Rs.30,000/- (Rupees thirty thousand) and dismissed on contest against OP No.4.

That the OPs 1, 2 and 3 jointly and/or severally are directed to deliver possession of the flat on the Northern Side the of 2^nd floor measuring 1024 Sq.ft. of premises No.173, Madurdaha, P.S. – Anandapur, Kolkata-700 107 in completely habitable condition and execute the deed of conveyance in favour of the complainant within 45 days from the date of this order.

Alternatively that the OPs 1, 2 and 3 jointly and/or severally  are directed to refund the amount of Rs.2,20,000/- (Rs. Two Lakhs Twenty thousand) being the full consideration amount of the flat along with 10% simple interest w.e.f. 01.07.2021 within 45 days from the date of this order. 

That the OPs 1, 2 and 3 jointly and/or severally are directed to pay compensation to the tune of Rs.50,000/- (Rupees Fifty Thousand) to the complainant within 45 days from the date of this order. 

That the complainant is at liberty to put the order into execution if the order are not complied with within 45 days from the date of this order.

Let a copy of this order be supplied to the parties concerned free of cost. 

That the final order will be available in the following websitewww.confonet.nic.in.

Dictated and corrected by me.  

Sangita Paul                    

               Member