This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted OP1 a partnership firm and OP2 to 4 are the partners of the said firm and they entered into a development agreement with owners of the property for developing and constructing a building at premises No.16, Lakshmi Dutta Lane, P.S. Shyampukur, Kolkata – 700 003 and Ward No.1 Assessee No.110082900366 and further the owner of the said property executed a general power of attorney in the name of the OPs 1 to 4 to develop the said property and sell it out to the intending purchasers for their commercial gain.

          For the sale of proposed flats in the said project the OPs1 to 4 invited the complainant to purchase the proposed flat in the said project at the said premises and assured them that the project work would have started immediately and within April 2013 the proposed flats should be handed over to the complainants and in the terms of the said agreement for sale dated the OPs received the advance money from the complainant to the extent of Rs.4,12,000/- and in the said tripartite agreement in Page 7 paragraph 2 clearly contained that the developer has already started the construction of the proposed building upon the land of the said premises by obtaining building sanctioned plan from the KMC and relying upon the provision of the said agreement complainant paid advance money and OPs1 to 4 received it from the complainant but unable to produce the sanctioned plan and subsequently OPs have as pre agreement failed to construct the building and on physical inspection it revealed that no such construction work has been started till date and even the old building is very much existing in the said development project and as per said agreement on page 13 column 7 it is specifically mentioned that the transaction in respect of the said flat shall be completed within April, 2013 and within one month’s time from the date hereof the developer shall duly register sale deed in accordance with the law and together with supporting or copy of completion certificate issued by KMC.  But till now no construction has been made and OPs are avoiding the complainant and has not taken any step for construction or purchasing any sanctioned plan or etc.  But in the mean time OP s 1 to 4 realized huge amount and that has been invested for their profit and for which complainant suffered much and for non-compliance of the terms of the said agreement OPs have violated the conditions of the agreement and has not discharged their liability as service provider and developer and for which complainant has suffered much and at the same time OPs have adopted unfair trade practice in such a manner and collected huge money and in so many manner deceived the purchaser like complainant and same was gross deficiency and negligence on the part of the OP which has been admitted by letter dated 12-08-2013 issued by the OPs1 to 4 moreover OP1 through his Ld. Advocate send a letter dated 25-10-2013 and admitted non-performance of the work and shifted the liability to the KMC in the said letter and they have also tried to fix liability to the KMC for non-sanctioning of the plan and in the above circumstances complainant has prayed for redressal awarding Rs.9 lakhs towards the non-performance of the service and Rs.1 lakh for compensation for enormous sufferings, hamper of social status and mental agony caused by unfair trade practices etc.

          Fact remains in this case notices upon the OPs1 to 4 were duly served who are nothing but the developer and the partners of the said developer’s firm and they filed vokalatnama and appeared and prayed for time for filing written version but ultimately they did not file any written version or contest the case. 

          However, OP5 by filing written statement submitted KMC have been made a party unnecessarily and it is further submitted that OPs1 to 4 never submitted any plan before KMC with the prayer for building sanction for the proposed building and hence grievances of the complainant as against the KMC is not tenable and moreover complainant has not filed any such application praying for granting any sanctioned plan to the KMC.  So, KMC is wrongly included in this case and complainant under any circumstances cannot claim that there is contract in between KMC as service provider and so prayed for dismissal of this case against the OP5.

Decision with Reasons

On an indepth study of the complaint including the written version of the KMC OP5 and also considering the fact of appearance of the OPs1 to 4 by filing vokalatnama on 03-02-2014 and also prayed for time for filing written version which was allowed on that date but they did not take any step and no action was taken by the OPs1 to 4 for proceeding with the case and filing any written version.  So, the case is taken up for ex parte hearing but the case is heard on contest against the OP5, the present KMC.  Considering the entire complaint and the written version of OP5 it is clear in respect of the allegation of the complainant of the complaint that the complainant has tried to convince that OPs1 to 4 by a letter reported the complainant vide letter dated 25-10-2013 through their Lawyer that OP accepted all the claims of the complainant about entering into the agreement and submitted that a settlement was held at Shyampukur P.S. on 02-10-2013 and complainant was aware of the fact and as per said settlement OP shall have to act.  But anyhow in support of such negotiation no document was sent by the OPs 1 to 4 or submitted before this Forum though OPs 1 to 4 appeared before this Forum took time for filing written version but did not file.  But from the letter annexure D it is clear that OPs1 to 4 Bala Ganapati Udyog informed the flat owners that delay in sanctioning the plan happens due to some technical problems and non-availability of relevant documents and all the flat owners are requested to attend a general meeting on the said premises of OPs1 to 4 for smooth completion and development of the said project on 04-08-2013 at 11  a.m. at the case premises.  But no other document is produced from any corner to show that OP even after accepting such huge amount of Rs.4,12,000/- from the complainant on 12-12-2011 has yet constructed the building which is proved and from the OP’s own letter annexure D it is clear that up to 04-08-2013 no project was started and no plan has been sanctioned.  From that letter it is found that demolition of old construction had not been made up to 14-08-2013.  Moreover as per page 13 clause 7 of the said agreement the flats shall be completed within April, 2013 but from the letter of the OP annexure D it is clear that no flat has been constructed rather it is proved even after April, 2013 in the month of August, 2013 old structure has not been demolished.  So, it is clear that it is a gross violation of the terms and condition of the property agreement to sale dated 12-12-2011.  Moreover, it is proved beyond any manner of doubt that in such a manner that OPs1 to 4 by deceiving the intended purchaser has collected huge amount and in the particular case it is proved that the OPs 1 to 4 received Rs.4,12,000/- on 12-12-2011 and prior to that and from the scheduled memo of consideration it is found that the OP received Rs.4,12,000/- in 12-12-2011 and already 2 years expired.  Construction has not been completed but OPs 1 to 4 have enjoyed that amount by investing the sum for other purpose they are enjoying profits and complainant is deceived from getting any interest and considering the general interest of the Bank as given over the amount running about Rs.6 lakhs it is found that within two years this Rs.4,12,000/- would be more than 7 to 8 lakhs and at the same time by such fund also it is not possible for the complainant to book any flat to purchase such flat within the scale limit of 2750 per sq.ft. and total 600 sq. ft. and now-a-days under any circumstances complainant is not able to get such a flat of 600 sq. ft super built area at a cost of Rs.19 lakhs but most interesting factor is that OPs by general advertisement and lucrative advertisement attracted many ill-fated middle class family for purchasing such a flat within their affordable income and no doubt under such situation they with hope deposited in the present case to the OPs 1 to 4 more than Rs.4,12,000/- with a hope that they shall have to get a flat because Balaji Ganapati is a big group of companies and they claimed that they are the wing of real estate business but the OPs Balaji Udyog is found adopted unfair trade practice, collected huge amount and, thereafter, threw away the intended purchaser in the street and they have collected huge capital like collecting such amount of Rs.4,12,000/- from the complainant and also other person and thereafter, deceiving the complainant including other purchasers.  But truth is that they have their no agony, mental pain because they are gaining profit from that capital after squeezing money from the market in such a manner but truth is that no sanctioned plan has yet been sanctioned by the KMC because there are several defects which are admitted by the OPs1 to 4 in their letter to the flat owners or the intended purchaser sent on 02-08-2013.  So considering that fact it is clear that complainant has been deceived, cheated by the OPs 1 to 4.  No doubt they are cheater of real estate business, there is none to check such cheaters who are cheating, deceiving the general middle class people in such a manner and fact remains considering the highest need of one flat by each and every family members OPs1 to 4 the dishonest cheater real estate businessmen dived in the market by such alluring advertisement in the patrika, newspaper and other places and middleclass people at large for a need of home are running towards such dishonest and mal-practitioner real estate business man with a hope that they shall have to get it but ultimately in such a manner large number of middle class people had been deceived like this complainant and M/s. Balaji Ganapati, Balaji Udyog has a good fame in the field of cheating people which is proved in this case and no doubt they have adopted unfair trade practice and by adopting it deceived the complainant and fact remains chance is nowhere to get the flat by the complainant so complainant has prayed for compensation, refund of the money and also punitive damages for adopting unfair trade practice against present OP M/s. Balaji Ganapati, Balaji Udyog and it is proved beyond any manner of doubt that the complainant has been deceived by the OP and no doubt Op by alluring the complainant received the amount though they have no capacity to construct the building and at the time of constructing the building there was no sanctioned plan.  So, by taking forge document and by advertising in deceitful manner OPs1 to 4 marketed the said business by adopting unfair trade practice and by that way they cheated the complainant and for which the complainant is entitled to get such relief because negligent, deficient manner of service of OPs 1 to 4 is proved beyond any manner of doubt. 

Last but not least we want to express our deep sense of anxiety about the deceived intended purchasers and unfair trade practice as has been adopted by the OPs1 to 4 we are sure that there are none to check and control but Forum is here and there to control the same and for which an exemplary punitive damages should be imposed to the OPs1 to 4 and similarly for harassing the complainant and causing mental pain and agony including the financial loss of the complainant OPs1 to 4 shall have to pay further penalty, compensation etc. but anyhow after considering the entire materials on record and the defence as made by the KMC we are convinced that KMC is not necessary party in this case but he was made party only to know the status of the sanctioned plan and so in the circumstances case should be dismissed without any cost against OP5.  But considering the conduct of the OPs1 to 4 and their manner of dealing of mal-practice and dishonest business of deceiving the intended purchasers and for adopting unfair trade practice practically complainant was compelled to file this complaint and for which the complainant is entitled to litigation cost.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed ex parte against OPs1 to 4 jointly and severally with a cost of Rs.10,000/-(Rupees Ten thousand only) each but dismissed against OP5 without any cost.

          OPs 1 to 4 are jointly and severally directed to refund the sum of Rs.4,12,000/- and also over the said amount interest @12% over the same with effect from 12-12-2011 and till its full payment to the complainant.

          For adopting unfair trade practice and to deceive the complainant in such a manner and for causing mental pain and agony and sufferings and also to throw the complainant to the street at this stage from getting any flat OPs1 to 4 jointly and severally are hereby directed to pay compensation to the complainant to the extent of Rs.1 lakh positively within one month from the date of this order.

          Considering the adoption of unfair trade practice by the OPs1 to 4 and their manner of deceiving the huge people in such a manner and to control such an unfair trade practice as adopted by Ops1 to 4 they are imposed penal damages of Rs.1 lakh each which shall be deposited to this Forum as penal damages and it is imposed to check and control such faked real estate business by the OPs 1 to 4 in future and to save the people from the hands of such fake real estate traders like SARADA.

          OPs 1 to 4 are hereby directed to comply the order and to satisfy the decree by complying and depositing the sum to the complainant and to this Forum as per spirit of the order within one month from the date of this order failing which for non-compliance of the Forum’s order and for reluctant attitude not comply the order penal interest @Rs.1,000/- per day shall be assessed over the same till full satisfaction of the decree and if it would be collected it shall be deposited to the account of the Forum and even penal proceeding shall be started u/s.27 of the C.P. Act.