SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint case has been filed by the complainant under Section 17(1)(a)(i) alleging deficiency in service against the OPs. The brief facts of the case, in a nutshell, are that the OP No. 3 being the owner of the Bastu land measuring more or less 5 cottahs, 8 chitacks together with structure standing thereon lying and situated at Mouza Purba Barisha, J.L. No. 23, Dag No. 1749, Khatian No. 962, Touzi Nos. 1-6, 8-10 & 12-16, Pargana Khaspur, R.S. No. 43, being premises No. 47, Majhi Para Road, P.O. Thakurpukur, P.S. Haridevpur (formerly Thakurpukur), Kolkata 700063 in the District of 24 Parganas (south). The OP No.3 entered into a promotional/joint-venture agreement for construction of G+3 multi-storeyed building with Sri Debasis Halder, since deceased, the sole proprietor/developer of Swabhumi Construction and that joint-venture agreement was registered on 09.11.2015 in the Office of ADSR, Behala. It was agreed by and between the land-owner and developer that after the construction of the building, 40% constructed area would be allotted to the owner and 60% to the developer. The developer was given the right to sell, transfer and/or execute the agreement to intending purchaser(s) and utilise the sale proceed or earnest money. The Promotional/Joint Venture Agreement also added General Power of Attorney whereby the constituted Attorney i.e., Sri Debasis Halder was nominated, constituted and appointed the owner’s attorney to sign all the papers into the Sale Deed, Agreement for Sale with the intending purchasers in the name of the owners and his behalf. On the basis of joint-venture agreement, Debasis Halder since deceased, the proprietor of the construction company invited the intending purchasers to book the flats of the developer. The complainant being one of the intending purchasers intended to purchase a self-contained flat being No. B-1(Eastern side) on the first floor of the building measuring 850 sq. ft. more or less 25% super built up area consisting of two bed rooms, one kitchen-cum-dining, two bath and privy, one verandah with proportionate undivided share of interest of the land of the said property (impartible) and rights over the common areas and facilities thereof in the said building at Municipal Premises No. 47, Majhipara Road, Post Thakurpukur, PS Haridevpur, Kolkata 700063 at a total consideration of Rs.18,70,000/-. The earnest money of Rs.14,00,000/- received by the promoter has been adjusted with the new agreement. Before the agreement dated 01.08.2017, the predecessor of OPs No. 1 & 2, Late Debasis Halder along with other erstwhile owners executed and agreement with the complainant on 22.02.2013 to sale a flat measuring 700 sq. ft. at premises No. 748, Diamond Harbour Road, wherein the complainant paid thereon a sum of Rs.14,00,000/- towards earnest money. The earnest money of Rs.14,00,000/- paid by the complainant to the developer by way of five account payee cheques as part of consideration in respect of earlier agreement, which was cancelled by the promoter cum constituted attorney Sri Debasis Halder, since deceased and has adjusted in respect of the case property. The complainant has paid Rs.14,00,000/- in the following manner:
- Rs.1,00,000/- by cheque No. 471124 dated 19.07.2011 drawn on Bank of Maharashtra, Behala Sakher Bazar Branch.
- Rs.5,00,000/- by cheque No. 471127 dated 09.09.2011 drawn on Bank of Maharashtra, Behala Kakher Bazar Branch.
- Rs.2,00,000/- by cheque No. 471122 dated 10.08.2011 drawn on Bank of Maharashtra, Behala Sakher Bazar Branch.
- Rs.3,00,000/- by cheque No. 471135 dated 25.01.2012 drawn on Bank of Maharashtra, Behala Sakher Bazar Branch.
- Rs.3,00,000/- by cheque No. 527402 dated 18.06.2012 drawn on Bank of Maharashtra, Behala Sakher Bazar Branch.
Thereafter, the new agreement was executed by and between the parties on 01.08.2017. As per earlier agreement, complainant has already paid Rs.14,00,000/- which is mentioned earlier. It was agreed by and between the parties that the complainant has to pay the rest of consideration stage by stage i.e, Rs.2,00,000/- at the time of floor casting, Rs.2,00,000/- at the time of brick work and plastering, and Rs.70,000/- at the time of possession and registration. It was agreed that the developer shall hand over the flat to the prospective customer within 12 months from the date of agreement subject to force majeure clause. After initial payment of Rs.14,00,000/- the complainant did not pay any further pay amount as per agreement as no further construction was initiated. The whole construction work was stalled after the construction of the plinth. When the agreement for sale was executed on 01.08.2017 there was construction up to the plinth area. The complainant visited the site after six months and she found that there was no construction after the plinth. The complainant brought it to the notice of the promoter and the promoter replied that as per agreement for sale, the flat would be completed and possession would be handed over to the purchaser. Again complainant visited the site and it was found that no further construction was made by the promoter. Thereafter, the promoter Sri Debasis Halder suddenly died on 08.08.2018 leaving behind his wife being OP No. 1 and his son OP No. 2 upon whom the sole proprietary concern Swabhumi Construction has been developed upon them. Thereafter also complainant visited the site as well as at the residence of OPs No. 1, 2 and 3 and requested them to transfer the flat after completing the construction of the flat in question or to return the earnest money of Rs.14,00,000/- with 16% interest. But unfortunately the OPs have not complied with the complainant’s request. Having no other alternative, complainant sent her legal notice on 24.04.2019 to OPs No. 1, 2 & 3 with the same prayer. The OPs No. 1, 2 & 3 sent one undated letter by their Advocate with frivolous plea as if the complainant has no authority to write letter to the OPs. Hence, the application praying for direction upon OPs to handover the possession of the flat as per Schedule of the petition of complaint and to execute and register the deed of conveyance of the same, alternatively, to refund the earnest money of Rs.14,00,000/- along with 16% interest and compensation of Rs.5,00,000/- and litigation cost of Rs.50,000/-.
OPs No. 1 &2 filed their written version to contest the case. In their written version, OPs No. 1 & 2 denied all material allegations inter alia stated that said Debasis Halder (since deceased) was a renowned developer in south Kolkata. The OP No. 2 is a minor and OP No. 1 is a home-maker and they have no knowledge about the business transaction and activities of the business. In the first week of April 2019, i.e., on 07.04.2019, the complainants visited the house of the OPs and suddenly started to demand a flat in the aforesaid premises, but the complainants failed to produce any proof of the same. The OPs No. 1 & 2 being layman cannot carry out the project personally since they have no fund and in the aforesaid issue, the OPs are searching a financier but cannot carry out the project as soon as possible. Statements made in the petition of complaint are denied by OPs No. 1 & 2. Hence, they have prayed for dismissal of the instant complaint with exemplary cost.
In spite of receiving the notice, the OP No. 3 neither appeared nor filed written version. Hence, the case was proceeded ex parte against OP No. 3.
On the date of final hearing, the Ld. Advocate for the complainants has stated before us that the complainant has paid Rs.14,00,000/- for purchasing the flat in question but till date no construction is visible in the project. Therefore, he has prayed for refund of the deposited amount with adequate interest.
In course of argument, the Ld. Advocate for the OPs No. 1 & 2 has stated the case is not maintainable in facts of law and the case is barred by limitation under the Limitation Act as well as the case is barred by jurisdiction. The Ld. Advocate for the OPs No. 1 & 2 has further stated that the OPs No. 1 & 2 have not received any consideration from the purchasers. They are not the party in the agreement for sale.
Ld. Advocate for the OPs No. 1 & 2 has further stated that as per agreement, before the ground floor casting, the complainant did not pay instalment to the developer. After expiry of Sri Debasis Halder/promoter, the complainant sent notice to the legal heirs for recovery of money. The Ld. Advocate for the OPs has also stated that the purchaser has more than one residential house and therefore, they are mere investors. The complainant did not give any time to OPs for construction of the above disputed building.
After sudden death of the promoter, namely, Debasis Halder on 08.08.2018, the OPs No. 1 & 2 have discovered that the project at 47, Majhipara Road is left incomplete with booking from several parties but the advance payments made by the parties was never available in the husband of the OP No. 1/father of the OP No. 2’s business or saving account. Ld. Advocate for the OPs No. 1 & 2 has also stated that OP No. 1 & 2 are still trying their level best to convince other developers to complete the construction. Already, the recovery proceeding has been started at Baruipur Court, Alipore Court and other Courts and the OPs No. 1 & 2 crave leave to file all the relevant documents at the time of hearing.
The Ld. Advocate for the complainant has submitted that till date no construction has been done by the OPs No. 1 & 2 and therefore, the complainants are entitled to get refund along with adequate interest.
The Ld. Advocate for the OPs has submitted before us that the said property is illegally acquired by the landlord Santanu Biswas and his brother namely, Rajib Biswas with his family. In spite of repeated requests by them to leave the property, he denied to do so and also threatened the OPs No. 1 & 2 against stepping into their own property and locked the property by themselves. Therefore, due to illegal possession by the landlord’s family, OPs No. 1 & 2 failed to convince any buyer to purchase the said property and therefore, they could not raise any fund to continue with any further settlements. OPs No. 1 & 2 have no other free property or cash in hand to initiate the said construction or to return the money to the purchasers. After the death of the husband of the OP No. 1, the property in question is illegally occupied by the illegal encroachers and huge amount of money is yet to be retrieved from the parties against which the deceased developer initiated legal case just before his death. Therefore, the OP No. 1 is in -5- financial stringency to carry on with the legal fight against the people who have acquired their properties or money by force. However, the OPs No. 1 & 2 are trying their level best to convince other developers to complete the construction. Therefore, the OPs No. 1 & 2 has prayed for dismissal of the complaint case in limine with exemplary cost.
Upon hearing the parties and on perusal of materials on record, it is admitted fact that the complainant entered into an agreement for sale with the OPs firstly on 22.02.2013 to purchase a flat. Since the developer has cancelled that agreement for sale, the complainant again entered into an agreement for sale on 01.08.2017 to purchase a flat being No. B-1 (eastern side) on the first floor of the building measuring 850 sq. ft. more or less including 25% super built up area at a total consideration of Rs.18,70,000/-. As per earlier agreement dated 22.02.2013, the complainant has already paid Rs.14,00,000/- which was adjusted with the subsequent agreement dated 01.08.2017. The complainant paid Rs.1,00,000/- on 19.07.2011, Rs.5,00,000/- on 09.09.2011, Rs.2,00,000/- on 10.08.2011, Rs.3,00,000/- on 25.01.2012 and Rs.3,00,000/- on 18.06.2012 all by way of cheques drawn on Bank of Mahrashtra, Behala Sakher Bazar Branch. All the money receipts and the bank statement of the complainant towards payment of Rs.14,00,000/- in favour of Swabhumi Construction i.e., the developing firm has been annexed by the complainant. It was agreed by and between the parties that is Rs.2,00,000/- would be paid at the time of floor casting, Rs.2,00,000/- would be paid at the time of brick work and plastering and Rs.70,000/- at the time of possession and registration. It is also admitted fact that as per agreement, the complainant has to pay the amount as per stipulated period and there is grace period of 30 days from the due date to enable the intending purchaser to mobilise resources. If the complainant fails to pay the payment after 30 days of due date, the agreement shall stand cancelled and developers shall refund the advance amount to the purchaser latest by 12 months from the date of rescind agreement but the amount would not carry any interest. As per Clause No. 4 (internal page 8) of the Agreement for Sale, the developer shall construct and complete the construction of the said flat within 12 months from the date of agreement provided that the developers shall not be deemed to be a defaulter in case of being prevented by force majeure that is uncalled situation like earthquake, local disturbances. The agreement for sale was entered by and between the parties on 01.08.2017 that means the possession would be delivered to the complainant within 31.07.2018. But till date the legal heirs of developer has not constructed the flat except up to the plinth area. But it is the fact that the developer, namely, Debasis Halder, since deceased with whom the agreement for sale was entered and executed by the parties on 01.08.2017 is no more on this day. But why the developer namely, Sri Debasis Halder, since deceased could not handover the possession of the flat and execute and register the deed of conveyance in favour of the complainant within 31.07.2018 has not been explained neither in the written version nor in the evidence filed by OPs No. 1 & 2. After the death of the developer, namely, Debasis Halder, OPs No. 1 & 2 being the legal heirs of the deceased developer has come into the picture. Since the developing company namely Swabhumi Construction was a sole proprietorship firm, therefore, the liability of deceased developer shifts to the legal heirs of the developer i.e., OPs No. 1 & 2. In the written version, the OPs No. 1 & 2 have stated that since the landlord is occupying the premises in question for the property and since there is several legal disputes the construction could not be completed but in support of their contention no document comes forthwith. Moreover, no force majeure clause has been explained by the OPs No. 1 & 2 for which the erstwhile developer could not complete the construction of the building within the stipulated period of 12 months from the date of execution of agreement for sale. The OPs No. 1 & 2 have also submitted in their Brief Notes of Argument that they are trying to accumulate fund for further construction and they are searching for another developer. But in support of their contention also no documentary evidence comes in this regard.
The OPs No. 1 & 2 neither filed questionnaire against the evidence on affidavit filed by the complainants nor filed evidence on affidavit on their behalf.
It is the fact that the construction has not been started beyond the construction of the plinth. There are several judgments passed by the Hon’ble National Commission that the complainant cannot wait for inordinate period. In this connection, we can cite the judgment passed by the Hon’ble National Commission in Suniti Kumar Bhat and others versus Unitech Acacia Project Private Limited and others reported in 2018 (3) CPR 795 NC wherein the Hon’ble National Commission held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.
The Hon’ble National Commission, in Neena Mehrotra and Anr. Vs. M/s. Unitech Limited, reported in 2017 (3) CPR 376 (NC) has been pleased to pass that in absence of any cogent explanation for failure to comply with stipulation of delivery of possession, opposite has committed deficiency in service as also has indulged in unfair trade practice. When the OPs is not in a possession to offer the possession of the apartment, the said opposite party/company shall refund the amount with simple interest without any further liability and the allottee cannot be expected to wait for possession of the aforesaid apartment for indefinite period of time.
In view of above discussion, in the instant case also the complainant is entitled to get refund which she deposited as advance amount. The complainant has paid the amount on 19.07.2011, 09.09.2011, 10.08.2011, 25.01.2012 and 18.06.2012 with a hope to get a flat in their name within 12 months. Anyone enters into an agreement for sale for purchasing a flat with a hope to get a roof upon them. This is 2023, the complainant has waited for long six years but the OPs No. 1 & 2 have failed to give any reasonable reply so that the complainant can wait with a hope to get a flat at least at a belated stage. The flat in question was sold from the developer’s allocation and as such, the amount was paid to the erstwhile developer Sri Debasis Halder, since deceased. Therefore, we think it would be just and proper to direct the OPs No. 1 & 2 to return the advance amount with interest in the form of compensation since the complainant is suffering a lot for long seven years with a hope to get a flat in her name.
In view of above discussion, the complainant has substantiated her case and as such she is entitled to get relief. Since we are passing the order towards refund of the amount deposited by the complainant, only the OPs No. 1 & 2 are liable to pay the amount with interest. Since no money was taken by the OPs No. 3/land-owner we do not pass any order against him. However, we do not pass any high rate of interest on the deposited amount of the complainant to be paid by OPs No. 1 & 2 since they are not the developers with whom the purchaser/complainant entered into an Agreement for Sale to purchase the flat in question. After death of the developer, the OPs No. 1 & 2 have come into the picture and now they are liable to refund for the act of husband of OP No. 1/father of OP No. 2. The OPs No. 1 & 2 have not denied the receipt of payment by the developer, rather they are trying to accumulate fund and in search of new developer. We think, complainant is entitled to get @ 6% simple interest on the deposited amount as compensation from OPs No. 1 & 2.
In view of above discussion, the complaint case succeeds.
Hence,
It is
O R D E R E D
The complainant case being No. CC/448/2019 be and the same is allowed on contest against OPs NO. 1 & 2 and dismissed against OP No. 3 ex parte.
OPs No. 1 & 2 are directed to refund Rs.14,00,000/- (Rupees fourteen lakhs) only with interest at the rate of 6% p.a. from the date of each payment till the date of realization to the complainant within 60 (sixty) days from the date of this order.
The OPs No. 1 & 2 are also further directed to pay litigation cost of Rs.5,000/- (Rupees five thousand) only to the complainant.
If the OPs No. 1 & 2 fail to comply with the aforesaid order, the complainant is at liberty to put the decree into execution.
The Complaint Case being No. CC/448/2019 is, thus, disposed of accordingly.
Let a copy of this order be supplied to the parties free of cost.
