Order-11.

Date-04/01/2017.

        Shri Kamal De, President.

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

Complainants’ case in short is that OP No. 1 is  a partnership firm. OP No. 2 and 3 are partners of the Partnership firm. OP No. 4 is the land lord of the premises being No. 4 Pottery Road, Kolkata-700015. OP No. 4 entered into an agreement for development dated 06.06.2008 with Ops 1, 2 and 3. The Developer also obtained the sanctioned building plan for the construction of the ground + 3 storied residential building at premises no. 4 Pottery Road, Kolkata 700 015 approved by KMC. During the construction the Complainants entered into an Agreement for Sale with the Developer to purchase a flat on the 4^th floor in southern side of the building having super built up area of 750 Sq. ft. in the said new building at the aforesaid premises against a consideration of Rs. 17,87,500/-. The Complainant at the time of execution of the agreement for sale advanced the developer an amount of Rs.5 lakhs in cash on the commitment that the developer would obtain the permission for the construction of the 4^th floor as per revised sanctioned building plan to be obtained from KMC. The Complainant also paid further amount to Rs. 10,75,000/- to the Developer through cheques and by cash on different dates up to  12.02.2013 on the assurance that the flat  would be delivered within 28^th April,2013. But the Developer could not construct the 4^th floor of the building situated at the aforesaid premises as they have failed to obtain the revised sanction building plan for the construction of the 4^th floor from KMC. After completion of the said project building the developer handed over the possession of the other flats of the building to the different purchasers except to the Complainants.

The developers till date could not construct the 4^th floor or handover the possession of the flat to the Complainants. The Complainants paid a total amount of Rs.15,75,000/- out of total  consideration of Rs.17,75,500/-. The Complainants contacted the OP for any other flat in the new Building at premises No. 4, Pottery Road, Kolkata 700 015 or anywhere, in the said locality and the OP Nos. 1, 2 and 3 assured the Complainants to handover the flat very shortly but OP Nos. 1,2 and 3 failed and neglected to handover any flat to the Complainants. The Complainants finally requested the OPs to refund the Advance of Rs.15,75,000/-. The Complainants also knocked Ops 1,2 and 3 time again for refund of the said advance money. But to no result. The Complainants have alleged deficiency of service and unfair trade practice against the OP. The Complainant also caused service of notice dated 24.06.2016 upon the Ops for refund of the money of Rs.15,75,000/-. But the OPs chose to remain silent. Hence this case.

            OP Nos. 1, 2 and 3 have not appeared in this case. These Ops being developers have not contested the case, the case has been proceeded ex parte as against them. O.P.- 4, however, has contested the case  in filing W.V. contending inter alia that the instant complaint is not maintainable in its present form and in law. It is stated these OPs became the sole and absolute owner in  respect of the premises in question  i.e. at premises No. 4 Pottery Road, Kolkata 700 015 by virtue of a registered deed of settlement dated 29.03.1972. While seized  and possessed of the property, she entered into an agreement with the developer dated 06.10.2008  with the developer  i.e. OP No. 1 and 3.Thereafter, the developer obtained sanctioned building plan for the construction  of ground floor + 3 storied residential building over the said property. OP No. 4 on 14th September, 2011 entered into a supplementary agreement with the Developer for the sale of the allocated portion of the landlord at a consideration of Rs.17 lacs, but the developer did not pay the balance consideration to OP No. 4. It is stated that OP No. 4 has nothing to say about the fact of the case as he is totally unaware about any fact and the circumstances in between the Complainant and OP Nos. 1 to 3. This OP has prayed for dismissal of the case.

Despite service of notices, neither of the O.Ps.-1, 2 and 3 appeared before this Forum nor did they contest this case. The case is proceeded ex-parte against O.Ps.-1, 2 and 3.

Point for Decision

1)        Whether the OP Nos. 1 to 3 are deficient in rendering service to the Complainants?

2)        Whether the OP Nos. 1,2 and 3 have indulged in unfair trade practice?

3)        Whether the Complainants are entitled to get the decree as  prayed for?

Decision with Reasons

We have perused the document on record i.e. photocopy of agreement for sale dated 12.06.2012 in between the Complainants and OP Nos. 1,2 and 3, photocopy of Pass Book in the name of the Complainants showing payment of Rs.5 lakhs and Rs.10,75,000/- respectively  on 13.6.2012 and 15.06.2012 paid to the OPs, Developer, photocopy of copy of legal notice and other documents on record.

It appears that the OPs 1,2 and 3 entered in to an agreement for sale  dated 12.06.2012  with the Complainant for sale of a flat on the 4^th floor in the south side of a building having a super built up area of 750 Sq. ft. in the new building at the premises  No. 4 Pottery Road, Kolkata 700 015 against a consideration of Rs.17,87,500/-. It also appears that the Complainants initially paid an amount of Rs.5 lakhs to the Developer with an understanding that developer would obtain the premises for the construction of the 4^th floor as per revised sanction plan from KMC. Complainants thereafter, paid further Rs.10,75,000/- to the Developer vide cheques on different dates and also by cash up to 12.02.2013 on  hope that the flat would be delivered and deed ofconveyance in respect of the flat, OP will  be completed within 25^th April,2013 as per the Contractual obligation. But it appears that the Developer did not construct the 4^th floor of the building settlement, 4 Pottery Road, Kolkata 700 015. It appears from the memo of consideration in the Agreement for Sale,that the developer took a total payment of Rs.15,17,000/- out of total consideration of Rs.17,87,500/-.  OP Nos. 1,2 and 4  as we find, did not construct the 4^th floor . We think that the developers have indulged in unfair trade practice, when they have accepted the advance, from the Complainant without procuring any, sanctioned plan. The question is how OP Nos. 1,2 and 3 could take money from the Complainants when they had no permission for the 4^th  floor ?  It also appears that the developer OPs No. 1,2 and 3 have also failed and neglected to refund the money to the Complainants, in spite of repeated persuasion both oral and written and also by way of legal notice. It appears that the OPs 1,2 and 3 have been deficient in rendering services to the Complainant’s and they have also indulged in unfair trade practice. It is apparent that O.Ps.-1 to 3 have utilized the money deposited  bythe Complainants  for their own ulterior gain without delivering of any flat in the new constructed building, not to say, on the 4^th floor of the new projected Building. We think that the Complainants are entitled to get relief as prayed for.

None came from the side of the OP Nos. 1,2 and 3 to challenge or controvert the version of the Complainants remain unchallenged and uncontroverted. In absence of any contrary and controverted materials on record and having regard to the materials there on, we think that Complainants are entitled to get the relief as prayed for.

In result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed ex-parte against O.Ps.-1, 2 and 3 and dismissed against O.P.-4.

OP No. 1,2 and 3 are jointly and severely directed to refund an amount of Rs.15,75,000/- along with Rs.50,000/- to the Complainants for causing harassment, mental agony and pain apart from litigation cost of Rs.10,000/- to the Complainants within one month from the date of this order.

OPs. 1,2 and 3  are also  jointly and severely directed to pay an amount of Rs.50,000/- to this Forum for practicing unfair trade within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.