SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint case has been filed by the complainant underSection 17 (1) (a) (i) of CP Act, 1986 against the OPs alleging deficiency in service
The facts of the case, in brief, are that the OPs No. 1 & 2 are the owner and developer of the project namely, Rainforest at RajarhatPodra, Bishnupur, Kolkata-700135 respectively, OP No. 3 is the marketing agent of the OPs No. 1 & 2. In the year 2016, the representative of the OP No. 3 visitedthe office of the complainant and after conversation and discussion between the complainant and the OP No. 3 the complainant agreed to purchase two residential flats at the said project being flat No. 20-8/A in tower 20 and 19-7/A in tower 19 in accordance with the layout plan as shown to the complainant by the said representative. The complainant had been also charged for the preferential allocation at the time of booking. The complainant has paid Rs.1,00,000/- through cheque as booking amount and further he paid 2,80,000/- on 31.01.2017, Rs.1,05,000/- on 02.02.2017, Rs.2,80,000/- on 18.02.2017 and Rs.3,50,685/- on 23.03.2017 through cheques. Thus, the complainant paid Rs.11,15,685/- in total. In spite of charging for preferential allocation, the complainant was surprised to find in the money receipts that the OPs have booked flat No. 13/7A of Block-13 instead of flat No. 20/8A at tower 20 as agreed by the representative of the OP No. 3. No allotment letter has been issued by the OPs till date. The complainant immediately contacted with the OP No. 3 for the changed flat number and the said representative assured that the same would be rectified shortly. The complainant has written numerous email to the OPs regarding the mistake in the provisional allotment letter but the OPs did not send any reply. The project had been commenced in the year 2010 and till date only roof casting of first floor of two towers have been completed. The OPs have assured to complete the project by 2019. There is no remarkable development in the long 7 years. In such situation, complainant requested the OPs for refund of Rs.11,15,685/-. The complainant sent a legal notice on 23.09.2017. In reply to the said legal notice OP No. 1 issued a letter dated 12.10.2017 and complainant has also replied to the same. Finding no other alternative, the complainant filed the instant application praying for direction upon OPs jointly and/or severally to refund the entire amount of payment of Rs.11,15.685/- along with @ 12 % interest from January 2017 till realization along with compensation of Rs.7,00,000/- and litigation cost of Rs.5,00,000/-.
All the OPs filed their separate written version.
In their written version, OP No. 1 denied all material allegations inter alia stated that the complainant was agreed to purchase two flats being flat No. 13/7A with open car parking space in the project namely the Rainforest for a total consideration of Rs.42,05,860/- and another flat being No. 14/2-A with open car parking space in the same project for a total consideration of Rs.40,84,560/- and the OP No. 1 received the total amount of Rs.11,15,685/-.The provisional allotment letter dated 08.02.2017 against the unit/flat No. 13-7/A of tower 13 and another provisional allotment letter dated 08.02.2017 against the unit/flat No. 14-2/A of Towner No. 14 had been issued and were sent to the complainant through email and complainant received an acknowledgement but complainant never made any dispute with the booking the of the aforesaid flats and units before the OP No. 1. The OP No. 1 asked the complainant over phone for making further payment as per terms and conditions of the projectbut the complainant did not pay so. The OP No. 1 has also stated that the two copies of sale agreement of the said units/flats had been handed over the to the representative ofthe OP No. 3 on 06.04.2017 for signing by the complainant but till date OP No. 1 has notreceived the same from the OP No. 3. The complainant has booked the units/flat in the month of January, 2017 as per his will and consent and having full knowledge on the status of the project.
OP No. 1 never received any formal request for cancellation of the said units/flats. The units allotted in the name of the complainant are purely upon the basis of the application forms received by the OP No. 1 from the complainant. The complainant has filed this application with mala fide intention on false, frivolous and vexatious ground just to harass the op No. 1. Hence, OP No. 1 has prayed for dismissal of the complaint case with exemplary cost.
In their written version, OP No. 2 also denied all material allegations inter alia stated that OP No. 2 is the land-owner of the property and OP No. 2 executed and registered a development agreement and the power of attorney in favour of the OP No. 1 and the said development agreement was registered on 22.11.2016 and on the same date the power of attorney was also registered. As per Para No. 11 of the said development agreement OP No. 2/land-owner shall be entitled to get 25% of the total constructed area as per sanctioned plan and by the said power of attorney OP No. 1 took the consideration amount from the various intending purchasers. For the registration part of any flat of the developer’s allocation the OP No. 2 is not required since the OP no. 2 has already executed registered power of attorney in favour of OP No. 1.
By the said power of attorney, the OP No. 1 took the consideration amount from various intending purchasers including the complainant. As per development agreement, the developer obeyed the terms and conditions and by virtue of the said power of attorney, this developer took the consideration amount from the complainant and the complainant was not known to OP and OP No. 2 informed again the complainant and never met any correspondence in between them. The agreement for sale was executed in between the complainant and OP No. 1. There was no signature of OP No. 2 and this OP No. 2 has no knowledge about the same and for that, the OP No. 1 is solely liable for such agreement. In any registration part of any flat of the developer’s allocation, this OP No. 2 does not require since OP No. 2 has already executed a registered power of attorney in favour of the OP No. 1 regarding handover the possession of the flat, the OP NO. 1 is solely responsible of that agreement for sale and within stipulated period, the OP No. 1 is given peaceful possession to the complainant and in this regard the OP No. 2 has no knowledge about the same. OP No. 2 has never met any unfair trade practice and he has always got in bona fide manner, the complainant has not come before this Commission with a clean hands and if the Commission gives a direction upon the OP No.2 to execute and register the flat then this OP NO. 2 is failed to do the same but regarding the question of handover of the possession of the flat, the OP No. 2 is entitled to do the same.
Hence, the OP No. 2 has prayed for passing necessary order as the Commission may deem fir and proper at the ends of justice.
In their written version, OP No. 3 also denied all material allegations inter alia stated that the present complaint is bad in law on the ground of misjoinder of necessary parties as much OP No. 3 is in no way connected with the development and/or marketing of the Project namely, Rain Forest. There is no privity of contract between the OP No. 3 and the complainant and as such, the OP No. 3 is neither correct nor necessary party in the present complaint. As per Section 2(1) (d) (ii) of the CP Act, 1986, the OP No. 3 is not the service provider. Since the complainant has not availed any service or purchased any good from OP No. 3. No cause of action has arisen in favour of complainant to file the present complainant against OP No. 3. The complaint deserves to be dismissed at the very threshold qua the OP No. 3 with exemplary cost. Complainant has not made any payment to OP No. 3 against any service. Hence, the complainant needs no reply from OP No. 3. All the allegations are formally and strictly denied by the OP No. 3 and it was categorically stated that OP No. 3 is a stock market broker. Complainant is not entitled to any relief against OP No. 3 since no consideration whatsoever has been made by the complainant to the OP No. 3 at any point of time and there is no document that has been executed by the complainant with the OP No. 3.Hence, the OP No. 3 has prayed for dismissal of the complainant with exemplary cost.
On the date of hearing, the Ld. Advocate for the complainant, OP No. 1 and OP No. 2 were present. None appeared on behalf of the OP No. 3.
Upon hearing the parties and on perusal of the record, particularly the evidence of the parties it appears to us that the complainant has paid an amount of Rs.11,15,685/- in total to OP No. 1. All the money receipts have been issued by OP No. 1 only. As per money receipts, all the amount has been paid in respect of Flats No. 13-7/A of Block No. 13 at Rain Forest and in respect of 14 -2/A of Block No. 14.
The payment was made by the complainant on 19th January, 2017, 31st January, 2017, 18th February, 2017, 2nd February, 2017, 22nd March, 2017, 1st July, 2017. The complainant cancelled the booking and intimated the cancellation of flat booking through email and the cancellation letter was sent to OP No. 3. It is astonishing the flat has been developed by OP No. 1 and the payment was made to OP No. 1 but the complainant sent the cancellation of the booking to OP No. 3. The complainant has alleged instead of Tower 20 the complainant was provided the flats in Tower 13 and Tower 14. In absence of agreement for sale it cannot be proved that complainant has chosen two flats in Tower 19 and Tower 20. No documentary evidence has come forward to us that complainant has booked the flats in Tower 19 and Tower 20. Therefore, we hold that the complainant has cancelled the booking of the flats on his own will. Since there is no agreement for sale and we do not find any cancellation clause, therefore, we do find any cancellation charge of booking. In absence of agreement for sale it appears to us that neither of the parties have come with clean hands. However, in the course of argument, the OP No. 1 has not denied the fact that the complainant has paid Rs.11,15,685/- in total. None appeared on behalf of the OP No. 3 on the date of final hearing. Since there is no allegation against the OP No. 2 Ld. Counsel for the OP No. 2 also has not submit anything against the payment made by the complainant. His only submission is that the OP No. 2 has not taken any amount from the complainant and he has nothing to say about the allegation of the complainant.
It is admitted fact that the complainant has paid Rs.11,15,685/-. The complainant has cancelled the booking on his own will assigning a reason for allotment of flats in Tower 13 and 14 instead of Tower 19 and 20. But no documentary evidence has come to us which can prove that the flat, have been booked wrongly to the complainant which compel the complainant to cancel the flat booking.
It is pertinent to mention here that complainant has alleged in his petition of complaint that he was charged for preferential booking. But the complaint has failed to show any document towards preferential booking charge. Moreover, The complaiant himself has stated that flats would be completed within 2019, but the complainant has filed the case in 2017 alleging deficiency in service against OP No. 1. Therefore, the complaint case is prematured one.
In course of argument, the complainant has admitted that OP No. 1 has handed over two copies of sale agreement through OP No. 3 for signing by the complainant. But the complainant has not produced the sale agreement to show the cancellation clause since the complainant has concealed the same for the reason best known to him. The complainant has cancelled the booking of the flats on the basis of his own allegation without any documentary proof.
On the other hand, OP No. 1 also received the part payment towards consideration of the flats before entering into the agreement for sale with the complainant. Moreover, why the OP No. 1 has sent the agreement for sale through OP No. 3, it is also not clear.
Therefore, it is evident that both the complainant and the OP No. 1 have not come with clean hands.
However, since the Act is a beneficial legislation we think that for the finality of litigation and on the basis of admission by the OP No. 1 towards receiving the amount towards consideration of the flats the complainant would be entitled for refund as prayed for. But we do not find any deficiency in service on the part of either of the OPs. OP No. 1 has not made any deficiency in service towards the complainant. The time limit of completion of project is 2019, and the instant case has been filed in the year 2017. OP No. 2 is the land-owner, no amount has been paid to OP No. 2 by the complainant. We find no privity of contract between the complainant and OP No. 3.
Therefore, we are not inclined to pass any order towards compensation. Since the amount of Rs.11,15,685/- has been retained by the OP No. 1 from the dates of payment by the complainant. We think it would be proper to direct the OP No. 1 to refund the aforesaid amount with @ 5% simple interest.
In view of above, the complaint case succeeds.
Hence,
It is
ORDERED
That the Complaint Case being No. CC/832/2017 be and the same is allowed on contest against the OP no. 1 and dismissed on contest against the OPs No. 2 & 3.
OP No. 1 is directed to refund of Rs.11,15,685/- (Eleven Lakh fifteen thousand six hundred eighty-five rupees) only to the complainant with @ 5% simple interest p.a. from the date of each payment till the date of realization within 60 (sixty) days from the date of passing of this order.
There is no order as to compensation and costs.
The complaint case is allowed in part and disposed of accordingly.
