HON’BLE MR. KAMAL DE, PRESIDING MEMBER
Order No. : 17
Date : 11.09.2019
The factual matrix of the case of the complainant is as follows:
The complainants entered into an agreement with the OPs for purchasing of a self-contained residential flat at the multi storied building proposed to be constructed on the land situated at Burdwan, P.O. P.S. - Burdwan, District – Purba Burdwan, Radhanagar, J.L. No. 49, Plot Nos. 189, 1894 and 1895, Khatian No. 6461 and 6417 within the area of Burdwan Municipality, Holding No. 36, R.B. Ghosh under ward No.20 on 05.03.2016 for residential accommodation.
The OPs agreed to deliver the possession of the flat being Flat No. 6 measuring about Super-built up area of 1158.3 Sq. ft. more or less on 4th Floor, south east facing, Block 2 on or within 24 months from the date of agreement for sale at a consideration amount of Rs. 46,43,200/- as per payment schedule stipulated in the said agreement.
The complainants started to pay the consideration amount to the OPs and ultimately the complainants out of their own fund paid Rs. 18,39,960/- to the OPs but in spite of receiving the amount of Rs. 18,39,960/- from the complainants, the OPs have not been able to complete the construction of the flats though the OPs were under obligation to build and deliver the possession of the completed flat to the complainants on or within 04.03.2018.
Complainants No. 1 on several occasions visited the office of the OPs and asked on repeated occasions for delivery of the possession of the flat in question as early as possible. it is also alleged that the complainant No. 1 is a retired service person and complainants were urgently in need of the flat. The complainants also expressed their readiness and willingness to pay the remaining construction amount on or before the date of construction of the flat. But the Ops failed measurably to deliver possession of the flat to the complainants within the stipulated period as per the agreement dated. 05.03.2016. The complainants thereafter lost their confidence upon the Ops. The complainants being aggrieved by and dissatisfied with the service of the Ops were compelled to ask for refund of Rs. 18,39,960/- along with interest from the Ops. The complainants have alleged deficiency of service and unfair trade practice on part of the Ops. The complainants also serve legal notice upon the OPs. The complainants have prayed for refund the deposited amount along with interest and compensation and other reliefs in terms of prayers in the petition of the complainant.
Ops 1 & 2 being developer have not contested the case and the case has proceeded ex-parte against OP 1 & 2.
OP 3 & 4 however, have filed written version contending inter alia that the complainants have no cause of action against these Ops and the case is not maintainable in its present form. it is alleged that the complainants have quite falsely implicated Ops 3 & 4 in this case for non-delivery of the possession of Flat in question to the complainants as per agreement dated 05.03.2016. it is also stated that all the allegations made in the paragraphs of the complaint against these OPs are all baseless. OP 3 & 4 submitted that these OPs are joint owners of land in question and in absolute possession of the schedule landed property and exercise their right, title and interest by paying land revenue and tax to the govt. as well as Burdwan Municipality. The developers by register deed of development dated 01.12.2014 agreed to develop the premises in question by constructing a multi-storied building containing self - contained Flats and Apartments along with car parking space over the scheduled mentioned property within three years from the date of execution of the said deed. But the developers have failed to complete the construction within three years as stipulated in the development agreement and have violated the terms and conditions of the development agreement.
The OP 3 & 4 as such became compelled to revoke the power of attorney dated 24.11.2014. It is stated that developers took money from the complainants. It is stated that OPs 3 & 4 are not liable for any advance or earnest money accepted by the developers.
It is stated that complainants have not paid any amount to OPs 3 & 4. These OPs have prayed for dismissal of the case against them.
Points for decision
(1) Is the case is maintainable in its present form and prayer?
(2) Whether OPs are deficient in rendering services to the complainant?
(4) Whether complainants are entitled to get the relief as prayed for?
Issue No. 1 :
Ld. Lawyers appearing from the side of the complainants and OPs 3 and 4 have not advanced any argument on the point of maintainability of the case. The instant issue has not been pressed by either of the side in course of agreement before us. We find that the complainants are the intending purchasers of the flat in question and as such the complainants are consumers. OPs 1 and 2 are developers and OPs 3 and 4 are landowners. We find that the OPs as such are service providers. The case is thus clearly falls within the ambit of Consumer Protection Act, 1986 as amended.
This Commission has also pecuniary jurisdiction to entertain the case.
The issue as such is decided in favour of the complainants.
Issue Nos. 2 and 3 :
Both the issues are taken conjunctively for the sake of brevity and convenience of the discussion.
At the outset it is pertinent to point out that OPs 1 and 2 being developers have not contested the case and the case has proceeded ex-parte against OPs 1 and 2. OPs 3 and 4 being landowners have, however, contested the case and both the complainants as well as OPs 3 and 4 have adduced evidences before this Commission.
We have travelled over the documents filed from the side of the complainants, viz., Xerox copy of Agreement of Sale dated 05.03.2016, Xerox Copy of payment receipts, Xerox Copy of legal notice along with Xerox Copies of postal slips.
It appears from the documents on record that the complainant booked a flat being flat No. 6 measuring about super built up area 1158.3 sq. ft. more or less on the 4th floor South-East facing block II vide a Deed of Agreement for Sale dated 05.03.2016 at a consideration amount of Rs. 46,43,200/-. It appears that the complainants out of their funds have already paid Rs. 18,39,960/- to the OPs. But OPs 1 and 2 in spite of receiving the said amount have not been able to complete the construction of the flat, though these OPs were under legal obligation to deliver the possession of the complete constructed flat to the complainants on or before 04.03.2018 as per the Agreement in between the parties. Xerox copies of payment receipts establish such payment. The OPs 1 and 2 have failed and neglected to construct the flat or to make delivery of possession of the flat in question to the complainants within stipulated period as per the agreement dated 05.03.2016. Such inaction on the part of OPs 1 and 2 indicates unfair trade practice and deficiency in service on the part of OPs 1 and 2.
It also appears from the legal notice of the complainants that the complainants have expressed their readiness and willingness to pay the remaining consideration amount in due time. But OPs 1 and 2 have not been able to complete the construction of the flat, though they are under obligation to deliver the possession of the constructed flat to the complainant on or within 04.03.2018.
None come from the side of OPs 1 and 2 to contest the case. OPs 1 and 2 have not contested the case. The evidences of the complainants remain unchallenged and uncontroverted. OPs 3 and 4 have also alleged that the OPs 1 and 2 have failed to complete the building/construction work within 3 (three) years from the date of sanction of the building plan of the said agreement dated 01.12.2014 and they have also violated of the terms and conditions of the Development Agreement laid down in between the parties and as such OPs 3 and 4 became compelled to revoke the Power of Attorney dated 24.11.2014.
It appears that Ops 3 and 4 have not accepted any amount from the complainants.
Considering the evidences and document on record, we are constrained to hold to that OPs 1 and 2 have been deficient in rendering services to the complainant.
It also crystal clear that the OPs 1 and 2 in spite of receiving considerable and significant amount from the complainants have failed and neglected to take up the project though they ought to have completed the scheduled flat or deliver the possession thereof unto the complainants as per the agreement dated 05.03.2016. The gesture and inaction on the part of the OPs 1 and 2 do establish the allegation of deficiency of services and unfair trade practices as against the OPs 1 and 2. We are of considered opinion that OPs 1 and 2 have to refund the deposited amount of Rs. 18,29,960/- to the complainant along with interest and compensation apart from litigation cost. More so, when OPs 1 and 2 as it appears have not started the project and OPs 3 and 4 revoked power of attorney and there is remote possibility of dream come true.
We, however, do not pass any adverse order against the OPs 3 and 4 being the landowners.
Hence,
ORDERED
That the instant Case be and the same is allowed ex-parte against the OPs 1 and 2 and dismissed against the OPs 3 and 4.
OPs 1 and 2 are directed to refund an amount of Rs. 18,29,960/- to the complainant along with interest @ 9% per annum since the date of first payment dated 13.01.2016 within 60 days from the date of this order till complianes.
OPs 1 and 2 are also directed to pay an amount of Rs. 2,00,000/- to the complainants towards compensation for causing mental agony and harassment within the said period apart from litigation cost of Rs. 25,000/-.
Failure to comply with the order will entitle the complainants to put the decree into execution in that event, OPs 1 and 2 will be liable to pay punitive damages @ 5000/- (Rupees Five Thousand only) per month to the complainants till complianes.
We make no order as against OPs 3 and 4.
Let a copy of this order be supplied to the parties free of cost.
