PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/ intending purchaser against a partnership construction firm and its partners (Opposite Party Nos. 1 to 3) and the landowners (Opposite Party Nos. 4 and 5) on the allegation of deficiency of services, primarily on the part of developer in a dispute of housing construction.

        Succinctly put, complainants’ case is that on 09.01.2015 they entered into an agreement with the Opposite Parties to purchase of a flat measuring about 900 sq. ft. super built up area being flat No. 2A on the second floor in a building christened ‘Paroma Palace’ lying and situated in R.S. plot No. 1314 corresponding to R.S. Khatian No. 91 within Mouza- Haridevpur, P.S.- Thakurpukur, Kolkata- 700104, Dist- South 24 Parganas at a total consideration of Rs. 22,05,000/-. On the date of execution of agreement for sale, complainants have paid Rs. 4,14,000/- as earnest money/part consideration amount towards the said total consideration amount by way of three cheques. The complainants have stated that as per terms of the agreement the developer was under obligation to complete the construction within 24 months from the date of execution of agreement for sale. The complainants have alleged that the developer has no intention to get sanction of the building plan from the Kolkata Municipal Corporation and did not take any measure for raising construction of the building. The complainants have also stated that in this regard all their requests and persuasions went in vain. Finding no other alternative, on 28.01.2016 the complainants requested the Opposite Parties to refund the amount but it also remains unheeded. Hence, the complainants have come up in this commission with the present complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to refund the consideration amount of Rs. 4,14,000/- with the prevalent rate of interest from the date of execution of the agreement for sale; (b) to pay compensation of Rs. 2,00,000/- for harassment and mental agony; (c) to grant costs of the proceeding etc.

        The Opposite Party Nos. 1 to 3/ developer did not file written version. However, applying the principles of law laid down by the Hon’ble Supreme Court reported in (1988) 4 SCC 613 (Modula India –vs- Kamakshya Singh Deo) the Opposite Party Nos. 1 to 3 were given opportunity to file questionnaire to test the veracity of statements of complainant and to address argument in respect of complainants case.

        The OP No. 4 i.e. one of the landowners by filing a written version has stated that due to negligence on the part of developer the venture has not only shattered completely but also created  legal encumbrances upon their landed property. The OP No. 4 has stated that he is in no way responsible for the inconveniences of the complainants.

        In support of their case, Smt. Sreyoshi Bandopadhayay, complainant No. 1 has tendered evidence through affidavit on behalf of herself and also on behalf of her husband i.e. complainant No. 2. The complainants have given reply against the questionnaire set forth by OP Nos. 1 to 3 and OP No. 4.

        Sri Dipankar Biswas (OP No. 4), one of the landlords has also tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the adversaries.

        At the time of final hearing on behalf of complainants and Opposite Party Nos. 1 to 3,  brief notes of argument have been filed.

        The overwhelming evidence on record make it abundantly clear that the Opposite Party No. 1 is a partnership construction firm to which Opposite Party Nos. 2 and 3 are the partners. Opposite Party Nos. 4 and 5 are the joint owners in respect of a piece of land measuring about 4 cottahs 15 chittaks 20 sq. ft. more or less lying and situated at R.S. Plot No. 1314, R.S. Khatian No. 41, Mouza-Haridevpur, P.S.- Thakurpukur, Kolkata- 700104, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation. Evidently, on 29.08.2014 the landowner had entered into a development agreement with OP No. 1 construction firm for raising construction of a multi-storied building over the said property. On the self-same date, the Opposite Party No. 4 also executed and registered a General Power of Attorney in favour of Opposite Party No. 1, a partnership firm represented by Opposite Party Nos. 2 and 3 authorising them to enter into an agreement for sale with the intending purchasers and to receive the consideration money in respect of developers allocation.

        Being emboldened with the power conferred upon them, the Opposite Party Nos. 1 to 3 had entered into an agreement for sale with the complainants on 09.01.2015 to sell one self-contained flat measuring about 900 sq. ft. which includes 25% super built up area being flat No. 2A on the second floor in a building christened ‘Paroma Palace’ lying and situated over the property as mentioned above on a total consideration of Rs. 22,05,000/-. Admittedly, on the date of execution of agreement for sale i.e. on 09.01.2015 the complainants have paid Rs. 4,14,000/- as earnest money/part consideration amount by way of three cheques amounting to Rs. 52,000/-, Rs. 1,00,000/-, Rs. 2,62,000/- respectively totalling to Rs. 4,14,000/-.

        Needless to say, the parties are bound by the terms of the agreement. Clause (vi) (inner page 12) of the Agreement for Sale specifically provides:

        “(vi) THAT the construction of the building will complete within 24 months of the date of execution of this agreement until and unless it is being affected from any natural calamities and wear and tear or for any other reasons which may be beyond the control of the owners and vendors.”

Therefore, as par terms of the agreement, the developer was under obligation to complete the construction within 24 months from the date of agreement for sale i.e. within 08.01.2017. However, the Opposite Parties No. 1 to 3 have failed to keep their promise. In other words, the OP Nos. 1 to 3 even could not obtain sanctioned building plan from the Kolkata Municipal Corporation to start construction. In this regard, all the requests and persuasions of the complainants to start construction and to deliver possession within time frame turned a deaf ear. The evidence on record also speaks that under compelling circumstances the complainants by a letter dated 28.01.2016 requested the developer to refund the amount paid by them. The evidence on record speaks that OP No. 2 on behalf of OP No. 1 construction firm issued two A/c payee cheques amounting to Rs. 50,000/- each being cheque Nos. 017920 and 017921 drawn on Central Bank of India, Barasat Branch dated 23.07.2016 and 20.08.2016 respectively, but both the cheques were dishonoured.

Mr. Abhijit Chatterjee, Ld. Advocate for the OP Nos. 1 to 3 has submitted that in obtaining sanctioned building plan the developer has faced several difficulties and in such a situation the developer had expressed their intention to move out of the project. However, the OP No. 4 has assured that it will be his responsibility to obtain the sanction plan. It has been submitted on behalf of the developer that due to negligent act on the part of OP No. 4 they could not be able to complete the project.

It is well settled that an inter-se dispute between the landowner and the developer cannot be used as a ploy to wriggle out the obligations of the developer under the agreement and to put the buyer in lurch. In a land mark decision reported in (2008) 10 SCC 345 (Faqir Chand Gulati –vs-  Uppal Agencies Private Limited) the Hon’ble Supreme Court has observed that in case of any grievances of the developer against the landowner, he may approach a competent civil court for redressal of his grievances. Equally if the landowner has any claim against the developer, he may either seek relief from a Forum constituted under the Act or may approach a competent Civil Court. In any case, the dispute between the landowner and the developer cannot take away the right of a ‘Consumer’.

In view of the above, the complainants are entitled to some reliefs. Considering the nature of the case, we think, an order directing the Opposite Party Nos. 1 to 3 to refund Rs. 4,14,000/- along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation will meet the ends of justice. Under compelling circumstances, the complainants have approached this commission and as such they are entitled to litigation costs which we quantify Rs. 20,000/-.

In view of the above discussion, the complaint is disposed of with following directions:

(i) The Opposite Party Nos. 1 to 3 are jointly and severally directed to refund Rs. 4,14,000/- to the complainants along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation;

(ii) The Opposite Party Nos. 1 to 3 are jointly and severally directed to pay Rs. 20,000/- to the complainants as costs of litigation;

(iii) The above payments should be made within 90 days from date in terms of the above order.