Date of filing: 25/07/2018
Date of Judgment: 16/05/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Namita Nandan (Hazra) under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) M/s. Adobe Builders (2) Soumyadip Chatterjee (3) Sri Tonmoy Paul (4) Sri Mrinmoy Chatterjee and (5) Smt. Shibani Dutta alleging deficiency in rendering of service on the part of the opposite parties.
Case of complainant in short is that OP No. 1 is a partnership firm being represented by its partners OP 2 & 3. OP 4 is the father of the opposite party No. 2 and OP 5 is the representative of OP No. 2, 3 & 4 in the building construction. By a development agreement signed on 09/10/2015 entered into between the owners namely (1) Sankari Nandan (2) Anita Chakraborty (Nandan) (3) Namita Nandan (Hazra) and (4) Sabita Nandan and the developer / OP 1 to 3, opposite parties / developer agreed to develop the property and construct the building. Power of Attorney was also executed in favour of the developers. Sankari Nandan died on 25/08/2017 leaving behind three daughters i.e. present complainant and her two sisters. Out of the three sisters, two have authorised the complainant by virtue of Power of Attorney to file the present case. As per the development agreement, OPs 1 to 3 agreed to allot 300 sq. ft. flat and Rs. 13,50,000/- to the owners as owners allocation. But the flat has not been handed over to the owners in spite of repeated request and thus the present complaint has been filed praying for directing the opposite parties to deliver and hand over the said 300 sq. ft. flat as per owners allocation and to pay compensation of Rs. 3,00,000/- for harassment and litigation cost of Rs. 10,000/-.
OP 1 to 3 have contested the case by filing written version denying and disputing the allegations made in the complaint contending inter-alia that as per development agreement dated 09/10/2013, developer has deposited with the owners an interest free refundable / adjustable sum of Rs. 13,50,000/- as security deposit. The amount of security deposit was to be refunded by the owners to the developers within 30 days of the grant of completion certificate regarding the new building. In case of delay in refund by the owners, the developer was entitled to adjust the same from the sale proceed of the flat of owners allocation @ Rs. 4,500/- per sq. ft. So in view of the said terms in the development agreement, the owners received 13,50,000/- as security deposit and the same was refundable. But the owners failed to refund the said amount to the opposite parties and subsequently they agreed to sell their allocated flat of 300 sq. ft. and accordingly by a deed dated 18/07/2018, said flat has been sold to third party and the price of Rs. 13,50,000/- has been adjusted from the said security deposit. So OPs have prayed for dismissal of the case with cost.
OP 4 & 5 did not turn up and so the case has been heard exparte against them.
During the course of evidence, both parties filed their respective examination in chief on affidavit followed by filing of questionnaire and reply thereto and ultimately argument has been heard.
So the following points require determination:-
- Whether there has been any deficiency in service or unfair trade practice on the part of the opposite parties?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Both the points are taken up for a comprehensive discussion.
It is the specific case of the complainant that by the development agreement, owners’ allocation was a flat measuring 300 sq. ft. and sum of Rs. 13,50,000/- was to be paid by the developers to the owners. The development agreement dated 10/09/2014 entered into between the parties has been filed by both the parties and it is evident from the said development agreement that the owners allocation has been described in the 2nd schedule of the said agreement which reads as follows:-
“All that the owner shall get one flat of area measuring about 300 sq. ft. on the ground floor of the new building as per KMC sanctioned plan together with undivided proportionate share of the land”.
In the recital of the agreement with regard to the amount of Rs. 13,50,000/- in Clause 12, it has been stated categorically that the developer has deposited with the owners an interest free refundable / adjustable sum of Rs. 13,50,000/- security deposit. The amount of security deposit shall be refunded by the owners to the developer within 30 days of grant of completion certificate regarding the new building. It is further categorically stated that in case of delay in refund by the owners, the developer shall be entitled to adjust the same from sale proceed of owners allocation @ of Rs. 4,500/- per sq. ft. So it is evident that the sum of Rs. 13,50,000/- paid by the developer as security deposit was refundable to the developer by the owners. The owners allocation as per the development agreement was only a flat measuring 300 sq. ft. in the ground floor.
It is true that admittedly said flat has not been handed over to the complainant or other co-owners but the recital in the development agreement as referred to above, is very specific that if the owners failed to refund the said security deposit then the developer was entitled to sell the said flat and adjust the said security deposit towards the consideration price. An agreement for sale dated 06/06/2016 is filed by the OP 1 to 3 which appears to have been entered into between the owners and the OP 1 to 3 where in it has been specifically stated that the owners due to the paucity of fund are unable to refund the security deposit to the developer / purchaser according to terms and condition of the development agreement and in order to adjust the said security deposit, the owners have offered to sell the said flat measuring more or less 300 sq. ft. covered area for the price of Rs. 13,50,000/-. The said agreement has duly been signed by the owners and the developer and the execution of the same has not been disputed and denied by the complainant.
It further appears that consequent to the said agreement for sale dated 06/06/2016 whereby the owners agreed to sell the flat of their allocation to the developer, said flat was subsequently sold by deed of conveyance registered on 18/07/2018 in favour of the purchasers namely Smt. Minku Satpathi and Sri Dilip Kumar Mishra. So the claim of the complainant that they were entitled to a flat together with security deposit cannot be accepted and as such there cannot be any direction to deliver the possession of the flat to the complainant as prayed. Thus the present case is liable to be dismissed.
Hence
ORDERED
CC/450/2018 is dismissed on contest against OP 1 to 3 and exparte against OP 4 & 5. The order of interim relief automatically stands vacated.
