Date of filing: 05/12/2017                                       

Date of Judgment: 16/03/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Smt. Tanushree Bhattacharya (Chakraborty) under section 12 of the Consumer Protection Act, 1986 against opposite parties (referred as OPs hereinafter) namely (1) Mrs. Priyanka Ghosh (2) Mrs. Sharmila Yadav (3) Smt. Manju Bose (name expunged vide order dt 16/08/2018) (4) Smt. Sikha Sardar (nee Bose) (5) Mita Mondal (nee Bose) (6) Smt. Rakhi Banik (nee Bose) and (7) Smt. Tuli Mishra (nee Bose) alleging deficiency in rendering of service on the part of the OPs.

Case of the complainant in short is that OP 3 to 7 being the joint owners entered into a development agreement dated 21/08/2013 with OP 1 and the husband of the OP2 (since deceased namely Narayan Yadav) to construct multi storied building in the ‘A’ Schedule property described in the said development agreement. OP 3 to 7 also executed the General Power of Attorney in favour of the said developer Narayan Yadav (since deceased). OP 1 along with husband of OP 2 thereafter started construction after obtaining the sanctioned building plan and partly completed three stored building. Complainant had entered into a registered agreement for sale dated 09/03/2016 with the developers being OP 1 and the husband of OP 2 to purchase a flat measuring 450 sq. ft. at a consideration price of Rs. 14,00,000/- out of which she paid Rs. 6,00,000/- at the time of execution of the agreement. As per the agreement for sale possession of the said flat was scheduled to be delivered by 30/04/2016 but the building was not completed. The developer Narayan Yadav died on 09/06/2016. Complainant waited for completion of the three storied building along with her flat till 31/10/2017 but neither the flat has been completed nor it has been handed over. The legal notice was also sent by the complainant through her Ld. Advocate on 01/06/2017 and 01/11/2017 but all went in vain. So the present complaint has been filed praying for directing the opposite parties to complete the construction of the said flat and building and to deliver the possession of the flat along with registration of deed of conveyance in favour of the complainant. If not done, to register the deed of conveyance by using machinery of this commission, in alternatively to direct the OP 1 & 2 to refund the advance amount of Rs. 6,00,000/- along with interest @ 18% p.a., to pay compensation of Rs. 5,00,000/- and litigation cost of Rs. 25,000/-.

On perusal of the record it appears that OP 4 to 7 are contesting the case by filing the written version contending inter-alia that due to the death of Narayan Yadav the development work of the proposed building was left incomplete. However the opposite parties 4 to 7 have no role to play in delivery of possession of the flat in favour of the complainant. It is contended by them that they have no responsibilities for any delay in completion of the building or in delivery of possession of the flat to the complainant. So OPs have prayed for dismissal of the case.

OP 1 has also contested the case by filing the written version denying and disputing the allegations. It is specifically contended that she was a mere signatory in the agreement and the developer Narayan Yadav (since deceased) used to handle the entire business. OP 3 to 7 had also executed and registered the Power of Attorney in favour of the said deceased Narayan Yadav only. It is also specific contention of the OP 1 that the complainant did not make the payment and she was unable to arrange the rest of the consideration amount to complete her allocated flat. It is also stated by the OP 1 that if the balance consideration amount is paid to the opposite party, she is agreeable to register the sale deed of the allocated flat in favour of the complainant. So the OP 1 prayed for dismissal of the complaint.

No step is taken by OP 2. The case has been heard exparte.

During the course of the trial it appears that the complainant filed affidavit in chief followed by filing of questionnaire and reply thereto. But in spite of repeated opportunity given, contesting OPs did not take any step to file the affidavit in chief and thus the case was fixed for argument. At the time of argument also OPs did not participate. So the argument on behalf of the complainant was heard. BNA has also been filed by the complainant.

So the following points require determination:-

1. Whether there has been any deficiency in rendering of service on the part of the opposite parties?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

Both the points are taken up together for discussion in order to avoid repetition.

In support of her case, complainant has filed the agreement for sale dated 09/03/2016 entered into between the parties i.e. the complainant and the Narayan Yadav (since deceased) as constituted attorney of the owners and the developers namely Narayan Yadav and Priyanka Ghosh / OP 1 wherefrom it appears the developer agreed to sell the flat as described in the 2^nd Schedule of the agreement at a total consideration price of Rs. 14,00,000/-. It is evident from the said agreement that an amount of Rs. 6,00,000/- was paid on the said date of agreement as advance. The agreement further reveals that the schedule of payment by the purchaser complainant has been specified in the 3^rd schedule of the agreement. It appears from the said schedule of payment 80% of the rest of the amount was to be paid after the completion of the marble flooring of the said building and balance amount was to be paid at the time of registration of the flat.

The execution of the agreement and payment of Rs. 6,00,000/- by the complainant has not been disputed and denied by the OP 1 / developer. During the course of the proceeding of this case, an Engineer Commissioner has been appointed on the prayer of the complainant and it appears from the report submitted by the said Engineer Commissioner that the marble flooring of the entire floor was already done but they were not polished. The schedule of payment in the agreement as already highlighted above specifies the payment of 80% of the amount of the consideration price by the complainant, at the completion of the flooring. If according to the commissioner report, flooring has already been done even though not polished then the same indicates that the complainant has also failed to make payment as per the terms of the said agreement. She has paid only Rs. 6,00,000/- which was to be paid at the time of agreement. No further sum has been paid by her.

At the time of argument Ld. Advocate appearing for the complainant has pressed for the alternative relief of refund of sum only. Since apparently no further work has been carried out towards the completion of building after the death of developer Narayan Yadav, it will be appropriate to allow the alternative relief of refund of sum. However we find no justification to allow compensation of Rs. 5,00,000/- as prayed in the complainant. In our view justice will be served if interest on the said sum of Rs. 6,00,000/- @ 8%  p.a. is allowed from the date of the notice dated 01/11/2017 sent by the complainant to OPs.

Hence

            ORDERED

CC/682/2017 is allowed on contest against OP 1 and exparte against OP 2 but dismissed against OP 4 to 7. OP 1 & 2 are directed to refund the sum of Rs. 6,00,000/- to the complainant along with interest @ 8% p.a. with effect from 01/11/2017 to till this date, within two months from the date of this order. They are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months. In default of payment, entire sum shall carry interest @ 8%  p.a. till its realisation.