Final Order/Judgment

Date of filing   :  18 June,  2018.

Date of Order :  16 August,  2023.

Mr. DHIRAH KUMAR DEY, Hon’ble Member.

            The instant case arises when Smt. Shrabanti Das, the Complainant, filed a complaint U/S. 12 of the Consumer Protection Act, 1986, hereinafter called the said Act, against (1) M/s. Shree Sai Reality, (2) Sri Ram Ranjan Kumar Singh, (3) Sri Manav Jaiswal, hereinafter called the Opposite Parties of OPs and (4) Sri Lakhi Narayan Das (5) Sri Naba Kumar Das, (6) Sri Nitai Chandra Das, (7) Sri Nimai Chandra Das, (8) Sri Manik Lal Das, (9) Sri Sankar Lal Das, (10) Sri Alok Das, (11) Smt. Amita Das, (12) Sri Gopal Das & (13) Sri Barendra Nath Das, hereinafter called the Proforma Opposite Parties or Proforma OPs, alleging deficiency in service from the part of the OPs and Proforma OPs.

            The facts, emerging from the complaint petition and the documents attached with it, are that the complainant entered into an Agreement for Sale on 09/07/2012 with the OP – 1/Developer, being represented by OPs – 2 & 3, intending to purchase a shop room admeasuring about 72 sq ft super built up area for a total consideration of Rs.1,65,000/-.  Complainant paid Rs.1,20,000/- during execution of this agreement and it was decided that the balance consideration was to be paid to the OPs/Developer during hand over possession of the shop room or its registration, whichever is earlier. According to this agreement the OPs were bound to complete the construction of the building within twenty four months from getting the building plan sanctioned by the Howrah Municipal Corporation authority and the OPs were bound to hand over possession of the subject shop room to the complainant within this time.  Complainant stated that the building plan was sanctioned by the concerned authority on 18/11/2013 vide item no. 98, dated 18/11/2013. Complainant alleged that the OPs failed to hand over possession of the said shop room to her within the specified time, i. e. within 18/11/2015 for which she sent a letter to the OP-1 developer on 24/08/2016 requesting to hand over possession of the said flat receiving the balance amount, but she received no response from the OPs.  She then sent a legal notice through her advocate on  17/06/2017 to all the OPs requesting the same along with a demand to pay her interest @12.5% per month on the paid money from the date of expiry of 24 months from the date of sanctioning of the building plan till handing over possession of the said shop room.  But this time also she got no fruitful result from the OPs. Then she filed a complaint before the Howrah regional office of the Consumer Affairs Department for mediation of her grievance.  But this time also she got no fruitful result as the OPs did not turn up for mediation. Ultimately she filed this complaint before this Forum/Commission praying to direct the OPs: (i) to give her compensation of Rs.1,00,000/- for physical and mental harassment for negligence in discharging the duties from the part of the OPs and not rendering proper service to the complainant,  (ii) to deliver possession of the said shop room to the complainant and pay interest @12.5% from the date of expiry of 24 months of sanctioning building plan till handing over possession of the shop room,  (iii) to pay simple rate of interest upon the amount due from the OPs till realization of such amount,  (iv)  all litigation costs and any other relief(s) as this Forum/Commission may deem fit and proper for doing unfair trade practice and to stop the OPs from doing such harassment against the complainant.

            Complainant filed copies of (i) notarized Agreement for Sale executed on 09/07/2012, (ii) bank statement showing payment of Rs.1,20,000/- to the OP-1/Developer,  (iii) letter issued by her on 24/08/2016 to the OP-1,  (iv) advocate’s letter issued to the all OPs on 17/06/2017,  (v) complaint lodged before the AD, Consumer Affairs & FBP, Howrah and (vi) Sanctioned Building Plan as annexure to the complaint petition.

            After admitting the complaint, this Commission sent notice to all the OPs and Proforma OPs to appear and file their written version.  OP- 1 & 2 appeared and filed their written version.  Despite receiving notice OP- 3 and all the Proforma OPs did not appear to contest the case, therefore, the case proceeded ex parte against them.  Complainant then filed her Evidence on Affidavit and thereafter OP- 1 & 2 filed questionnaire.  Complainant filed reply.  OP-1 & 2 could not file their Evidence on Affidavit and ultimately argument was heard.  Complainant filed her Brief Notes on Argument but OP-1 & 2 could not file their BNA. We have now come to the position to deliver the final order in this case.  Original documents as submitted by the complainant are considered while reaching to the conclusion.

DECISION WITH REASON

The factual matrix of this case, as emerged from the complaint petition and the annexed documents, is that the complainant executed an Agreement for Sale on 09/07/2012 with the OP- 1 company, M/s. Shree Sai Reality, the developer, being represented by OP- 2 & 3, intending to purchase a shop room of area 72 sq ft super built up area in the ground floor of the proposed building to be constructed by the OP- 1 to 3, at the premises at 38+39, Sree Ram Dhang Road, P. S. – M. P. Ghora, Howrah and the Proforma OPs are the owners of this premises of area 5 Cottahs and 6 Chittacks. The consideration for purchasing this shop room was settled at Rs.1,65,000/- and the complainant paid Rs.1,20,000/- during execution of this agreement.  In this agreement, in Clause 21, it is stated that the said shop room would be completed in accordance with the sanctioned building plan and would be handed over to the purchaser/complainant with all fixtures, fittings, amenities within twenty four months from the date of sanctioning the plan and after obtaining certificate thereof from the competent authorities.  In Clause 33 of this agreement it is stated as: “That if the Developer fails to complete the construction of the said shop room within 24 months from the date of sanctioning of the Building Plan from the Howrah Municipal Corporation, then the Developer shall liable to pay interest @12.5% per month from the date of expiry of the said 24 months till completion of the said shop room and till handing over the same to the Purchaser unless prevented by the “Force Majurae” or reasons beyond the control of the Developer.”  In this agreement it is stated that the OP- 1 to 3 executed a Development Agreement on 06/07/2012 with the Proforma OPs who are the owners of the premises at 38+39, Sree Ram Dhang Road, authorizing and empowering the OPs to construct a G + 4 storied building thereon according to the building plan to be sanctioned by the concerned authority. Complainant alleges that she have not got possession of her desired shop room till date despite her repeated efforts, the Developer failed to hand over possession of the said shop room which would be the aid of her livelihood by means of self-employment.  Her repeated efforts to get possession of the shop remained fruitless for which she came before this Forum/Commission to get her grievance be redressed.

Be it mentioned here that the complainant stated in the complaint petition that the Building Plan was sanctioned by the concerned authority of HMC vide item no. 98, dated 11/11/2013, so the OPs- 1 to 3 were bound to hand over possession of the said shop room within 18/11/2015 according to the Agreement for Sale.  But the copy of the sanctioned building plan attached therein states that it was approved as per resolution of MIC vide item no. 98, dated 18/11/2013, BRC No. 76/13-14 and signed by the Chief Architect/Asstt. Engineer on 23/04/2014.  So, in our view the OPs/Developers were bound to hand over possession of the said shop room within 23/04/2016 instead of 18/11/2015 which they did not thereby deficiency in service happened from their part.

The OP- 1 & 2, on the other hand, categorically denied all the allegations of the complaint in their written version.  They stated in their written version, in Sub-para – b of Para – 14, that the husband of the complainant, Sri Dilip Kumar Das, a co-owner of the premises at 38+39, Sree Ram Dhang Road, transferred and/or gifted his undivided share in the property in favour of one of his brothers by a deed on 05/07/2012 and this fact has been affirmed by the complainant through her reply to the questionnaire of OP- 1 & 2.

An interesting point arises here: complainant’s husband gifted his share of property to one of his brothers by a deed on 05/07/2012, the development agreement was executed on 06/07/2012 and the agreement for sale was executed on 09/07/2012 by the complainant intending to purchase a shop room for a consideration of Rs.1,65,000/-.  Complainant could have acquired a shop for their share in the property if her husband had not gifted his share to one of his brothers.

The OP- 1 & 2, through their written version stated that after construction of the ground floor they requested the complainant and her husband for ‘making cutting’ of said small shop room and after several requests the complainant and her husband expressed their unwillingness to purchase the said shop room and it was decided that the OPs will refund the amount paid by the complainant after selling the said shop to a third party (Sub-para e & f of Para 14).  It is also stated there that there is no written proof in this matter.  We cannot rely on this statement as the agreement for sale dated 09/07/2017 has not been cancelled.  It is also not reliable that the OPs- 1 &2 repeatedly tried to refund the paid amount to the complainant along with the bank interest as they were not in a position to hand over possession of the subject flat as there is no proof in support of this statement.  The OPs cannot have any right to sell the subject shop room to any third party until and unless the agreement for sale became invalid or being cancelled. It is a settled principle that the parties are bound by the terms of agreement.  When either of parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement. The complainant/purchaser, on the other hand, by letters dated 24/08/2016 and  17/06/2017 stated that after four years of the agreement OPs did not inform her about the fate of the shop room and requested the OPs to hand over possession of the said shop room immediately.  So, question of creation of any third party interest in respect of the said shop room does not arise.  The OPs are bound to hand over physical possession of the said shop room to the purchaser/complainant.  

            Thus, in our opinion the complainant/purchaser has every right to claim physical possession of her desired shop room for which she executed the agreement for sale dated 09/07/2012 and she had paid major portion of the consideration during this execution.  The complainant/purchaser has every right that the Deed of Conveyance in respect of the said shop room to be executed and registered in her favour. According to Clause 11 of the agreement for sale the purchaser/ complainant should make arrangement for execution and registration of the Deed at her own cost within three months from the date of taking possession and the arrangement for such registration should be made by the advocate as agreed by both the parties.  We think that the OPs are deficient in providing service to the purchaser/complainant in accordance with the agreement made between them for which the complainant/purchaser suffered much to earn her livelihood through self-employment and hence she is entitled to get compensation.  We think a sum of Rs.30,000/- will be enough as compensation the OPs should give the purchaser/complainant.  The complainant is also entitled to get Rs.10,000/- as litigation cost for her compulsion to come before this Forum/Commission the get her grievance be redressed.

            Hence,

                                    it is

ORDERED

            That the complaint Case bearing No. CC/201/2018 is allowed on contest against Opposite Party Nos. 1 & 2 and ex-parte against Opposite Party No. 3 and Proforma Opposite Party Nos. 4 to 13.

            The OP Nos. 1 to 3 are directed to hand over physical possession of the shop room to the complainant as agreed through the Agreement for Sale dated 09/07/2012 after receiving the balance amount.  All the OPs and Proforma OPs are directed to execute and register the said shop room in favour of the complainant in accordant with the Agreement for Sale dated 09/07/2012.  The OP Nos. 1 to 3 are directed to pay Rs.30,000/- as compensation and Rs.10,000/- as litigation cost to the complainant. All these directions should be complied by the OPs & Proforma OPs within 60 days from the date of this order failing which Rs.500/- per day should be imposed on OP Nos. 1 to 3 till such compliance.

Dictated and corrected by me

            Member.