Date of filing: 16/09/2021

Judgment date: 15/06/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainants namely Sri Monoj Kumar Misra and Mrs. Mithu Misra under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OP hereinafter) namely (1) M/s. Associated Construction being represented by its proprietor Shri Amitava Roy Chowdhury (2) Smt. Sulata Sarkar (3) Sri Arijit Sarkar (4) Sri Manish Sarkar and (5) Smt. Jolly Mitra alleging deficiency in service on the part of the opposite parties.

Case of the complainant in short is that Dr. Prithiwis Sarkar (Since deceased and his legal heirs being OP 2 & 3) along with OP 4 & 5 bieng owners of the municipal premises no. 36/1, Maharaja Tagore Road, under P.S. Lake, Kolkata 700 031 entered into a development agreement on 09/01/2015 with the OP 1 the developer to raise a multi storied building and also executed and registered a general power of attorney on 02/02/2015 in favour of the OP 1. Consequent to the said development agreement OP 1 entered into an agreement for sale dated 05/09/2017 with the complainant to sell one flat described therein at a total consideration price of Rs. 27,00,000/-. The complainant paid a sum of Rs. 7,00,000/- to the OP 1 as earnest money and part payment towards the consideration price. Subsequently one of the joint owners i.e. Dr. Prithiwis Sarkar died leaving behind OP 2 & 3 as his legal heirs. So a further development agreement dated 27/02/2018 was executed and registered between OP 2 to 5 and OP 1 and also power of attorney was registered on 27/07/2018 in favour of OP 1. Consequent to the said subsequent development agreement, OP 1 as developer and being constituted attorney of the owners 2 to 5 executed and registered a fresh agreement for sale on 12/11/2018 and enhanced the amount of consideration price from 27,00,000/- to 28,00,000/- in respect of the said flat. On or before the execution and registration of the said agreement for sale dated 12/11/2018, OP 1 further received  sum of Rs. 12,80,000/- and thus a total sum of Rs. 19,80,000/- was paid by the complainant to the OP out of the total consideration price of Rs. 28,00,000/-. As per agreement for sale developer was liable to complete the said flat and the building within April, 2019. But the same was not completed. The complainant had taken loan of Rs. 20,00,000/- from the Bank of India. OP 1 had also given an undertaking on 17/12/2020 to the said bank manager that the flat shall be handed over to the complainant within 90 days. Thereafter complainant has paid further sum on different dates of Rs. 1,30,000/- twice and 1,65,000/- and thus a total sum of Rs. 24,05,000/- has been paid to the OP 1. But neither possession of the flat has been handed over nor the deed has been executed and registered in favour of the complainant. The complainant has been paying EMI to the bank towards the loan amount. So the present complaint has been filed praying for directing the OP 1 to complete the construction job of the flat as per the agreement for sale dated 12/11/2018 and to deliver the possession of the schedule flat to the complainants, to direct the OPs to execute and register the deed of conveyance in respect of the said flat on payment of the balance consideration price of Rs. 3,95,000/-, to direct the OP 1 to pay interest @ 15% p.a., to pay compensation of Rs. 10,00,000/- and litigation cost of Rs. 50,000/-

OP 1 on receipt of the notice appeared and filed a written version contending specifically that he had already intimated to the complainants that he needed more time to complete the construction work because of the situation of Covid – 19. Due to the said pandemic he was severely hit financially which caused the delay. It is further contended that he is still in process of completion of construction work of the flat of complainants and thus OP 1 has prayed for dismissal of the complaint with exemplary cost.

OP 2 & 3 have also contested the case by filing a separate written version contending specifically that they had entered into a development agreement with the OP 1 but OP 1 intentionally failed and neglected to pay rent of their alternative accommodation for which they have already filed case being CC/678/2021 praying for handing over the possession letter, completion certificate along with other relief including payment of arrear rents and the expenses incurred by them to complete the flat and to make it habitable. So they have prayed for dropping the case against them.

OP 4 & 5 did not take any step on service of notice and thus the case has been heard exparte against them.

During the course of evidence complainant and OP 2 & 3 filed their respective affidavit in chief but neither parties filed any questionnaire and denied to file the same. So ultimately the case was fixed for argument. It may however be mentioned that OP 1 after filing of the written version did not take any further step.

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 for a comprehensive discussion. In support of their claim complainants have filed the two agreements for sale entered between them and the OP 1 as developer and contested attorney of the owners on 05/09/2017 and thereafter on 12/11/2018. It may be pertinent to point out that it is an admitted fact that a development agreement was initially entered into between Dr. Prithiwis Sarkar  and OP 4 & 5 as owners with OP 1 and a power of  attorney was also executed by them in favour of OP 1. The said development agreement was entered into on 09/01/2015 and power of attorney was executed and registered on 02/02/2015. This is also an admitted fact that consequent to the said development agreement; agreement for sale was entered into between OP 1 and the complainant on 05/09/2017 to sell a flat described therein at a consideration price of Rs. 27,00,000/-. However it is evident that Dr. Prithiwis Sarkar the predecessor in interest of OP 2 & 3 died and so a further development agreement was executed between OP 2 to 5 and OP 1 and also registered a general power of attorney in favour of OP 1 dated 27/07/2018. Thus consequent to the same a fresh agreement for sale was executed and registered on 12/11/2018 between the complainant and the OP 1. Complainant has filed both the agreement for sale and it is evident from agreement for sale dated 12/11/2018 that the consideration price was settled at Rs. 28,00,000/- in respect of the flat as described in the 2^nd schedule of the said agreement. It is further evident from the written version filed by OP 1 that he has neither disputed and denied the execution of the agreement for sale neither he has denied the payment of sum of Rs. 24,05,000/- by the complainant out of the consideration price of Rs,. 28,00,000/-. OP has also admitted in the written version that the possession could not be delivered and there has been delay due to the situation of pandemic of Covid – 19. According to OP 1, he is in process of completion of the flat and shall hand over the same. The written version was filed by OP 1 on 31/01/2022 but it not clear whether the construction of the flat has been completed. Be that as it may, since this is an admitted position that the complainants have not been handed over the flat neither deed of conveyance has been executed and registered, they are entitled to same as per agreement for sale dated 12/11/2018. For the delay in handing over of the possession of the flat, complainants are also entitled to compensation from the OP 1. An amount of Rs. 1,00,000/- will be justified as compensation.

Hence

           ORDERED

CC/447/2021 is allowed on contest against OP 1, 2 ,3 and exparte against OP 4 & 5. OP 1 is directed to hand over the flat to the complainants in habitable condition as per agreement for sale dated 12/11/2018 within two months from this date. Opposite parties are further directed to execute and register the deed of conveyance in respect of the flat as per agreement for sale dated 12/11/2018 in favour of the complainants on payment of balance consideration price of Rs. 3,95,000/- by the complainants to OP 1 within the aforesaid period of two months. OP 1 is further directed to pay compensation of Rs. 1,00,000/- and Rs. 10,000/- as litigation cost fo the complainants within the aforesaid period of two months.