Judgment : Dt.25.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Pankaj Kumar Das, son of late Surendra Nath Das, residing at Ushashee Apartment, 1st floor, Flat No.1A, 9, New South Park, P.O.-Jadavpur University, P.S.-Jadavpur, Kolkata-700 092 against M/s. Annapurna Construction, OP No.1, Sri Uttam Kumar Naskar, OP No.2, Smt. Malina Saha, OP No.3, Sri Gouranga Saha, OP No.4, Sri Krishna Saha, OP No.5, Sri Biswanath Saha, OP No.6, Sri Bablu @ Babun Saha, OP No.7, Smt. Subhra Saha (Dutta), OP No.8, Smt. Manju Saha (Das), OP No.9, Smt. Sukla Saha (Dey), OP No.10, Sri Jagannath Saha, OP No.11 and Smt. Tinku Saha (Mahato), OP No.12 praying for a direction upon the OP Nos.1 & 2 to handover the possession of the flat after completion the construction and further direction to execute and register sale deed, compensation of Rs.2,00,000/- pay litigation cost of Rs.50, 000/-, alternatively a direction to refund the deposited amount of Rs.8,00,000/- with 18% interest.
Facts in brief are that OP No.1 is a proprietorship firm carrying on business of construction. OP No.2 is the sole proprietor of the said firm. OP No.3 to 12 are the absolute owners of the land measuring about 3 cottahs 13&1/2 chittaks and 22&1/2 sq.ft. situated at E.P.No.795, S.P.No.21 in C.S. Plot No.625(P), J.L.No.34, C.S.Dag No.625(P), Mouza-Baderaipur, being premises No.C/18, Baghajatin Colony, being Municipal Premises No.158, Bagajatin Block C, within Ward No.102 of the KMC, P.S.-Jadavpur, Kolkata-700 032. OP Nos.3 to 12 entered into development agreement with OP Nos.1 & 2 on 4.3.12. They allowed OP No.1 & 2 to sale flats out of their allocation. Accordingly, Complainant entered into agreement for sale for purchasing a flat in the multi-storied building and the agreement for sale was executed on 18.3.2014. By virtue of the said agreement for sale, developers OP No.1 & 2 agreed to sale the flat at a consideration of Rs.10,00,000/-. Complainant paid Rs.3,00,000/- on 15.3.2014. Prior to the execution of the said agreement for sale and thereafter another Rs.1,00,000/- on 15.4.2014 by cheque, again another Rs.1,00,000/- on 15.6.2014 and this way Complainant paid Rs.8,00,000/-. As per the terms of agreement for sale the developers OP No.1 & 2 under obligation to complete the construction and hand over physical possession to the Complainant within a period of 12 months from the date of agreement for sale on 18.3.2014. But, Complainant did not get possession of the flat despite paying Rs.8,00,000/-. So, Complainant filed this case.
OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against it.
OP No.4 to 12 filed written version and denied the allegations of the complaint and prayed for dismissal of this complaint.
OP No.1 & 2 also filed written version and denied the allegation of the complainant and prayed for dismissal of the complaint. Further, OP No.1 & 2 have specifically denied the allegations. They have stated that they have counter claimed from the Complainant to pay Rs.2,00,000/- which the balance consideration money, to the Complainant. These OPs have also stated that they are ready and willing and execute register the deed in favour of the Complainant and they have no knowledge that one of the land owners died. However, they have prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief and also filed a petition for appointment of Engineer Commissioner. The prayer of Complainant for appointment of Engineer Commissioner was considered and rejected.
The Engineer Commissioner was appointed as per the direction of the Hon’ble State Commission.
OP No.4 to 12 did not file questionnaire. Thereafter OP No.4 to 12 filed evidence to which Complainant did not file questionnaire, instead filed a petition that she will not file questionnaire and the case be fixed for argument.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of record, it appears that Xerox copy of the development agreement is filed. Further, it appears that Xerox copy of the agreement for sale between the developer and the Complainant is filed. However, this agreement for sale does not bear the signature of the Complainant.
So, the question arises as to whether OP No.1 & 2 is intended to sale the flat in favour of the Complainant. OP No.2 Uttam Naskar is the proprietor of the firm which is Annapurna Construction. Further, on perusal of the written version of the OP No.1 & 2, it appears that they are ready and willing to make a conveyance deed in favour of the Complainant and also to handover possession. However, on perusal of the report of the Engineer Commissioner, it appears that as the matter is in a haphazard situation and from this report, it does not appear that the order for registration for the flat could not be made. Accordingly, it appears that amendment at the last stage was correctly made an the only course opened for the Complainant is to get the money refunded back.
As such, we are of the view that Complainant is entitled to refund of Rs.8,00,000/- with compensation of Rs.50,000/- and litigation cost of Rs.10,000/-.
Hence,
ordered
CC/137/2016 is allowed on contest against OP No.1 & 2 and dismissed against OP No.4 to 12. The name of OP No.3 has already been expunged from the cause title. So, OP No.2 is directed to refund Rs.8,00,000/- to the Complainant within three months of this order, in default the amount shall carry interest @ 10% p.a. from the date of this order. In addition, OP No.2 is also directed to pay Rs.60,000/- as compensation and litigation cost within this period, in default this amount shall also carry interest @ 10% p.a. from the date of this order.
