HON'BLE MR. KAMAL DE, PRESIDING MEMBER
Order No. : 23
Date : 06.02.2020
Case of the complainant in short is that M/S. M.R. Construction i.e. OP 1 is a partnership firm and OPs 2 and 3 are the partners of OP 1 firm. OP 1 started to develop a multi storied building consisting of several flats as developer under the name and style “Sanchita Apartment” on the land belonging to OPs 4 and 5 at Mouza Alisha, G.T. Road, Joteram, P.S. Burdwan, District Purba Bardhaman, PIN 713103. The complainant for residential accommodation of her family members decided to purchase a Flat being No. 4A, on the 4th Floor at the said residential multi storied building named “Sanchita Apartment” along with car parking area at the ground floor at Rs. 23,26,7000.00p (Rs. 21,26,700.00p for flat and Rs. 2,00,000.00p for car parking). The complainant and her husband Anil Kumar Mondal also obtained loan from OP 6 to the tune of Rs. 13,25,007.00p for paucity of fund and they are also paying the loan amount at monthly instalments. A tripartite agreement for sale was executed amongst OPs 4 and 5, OP 1 and the complainant on 10.08.2015 wherein the OPs agreed to sell the schedule flat measuring an area of 834 sq. ft. at a total price of Rs. 23,26,700.00p within 18 months from the date of execution of the tripartite agreement for sale. The complainant paid all the instalments by herself as well as through OP 6 as per payment schedule. The complainant has paid total amount of Rs. 22,21,701.00p till this date. The construction work of the said flat till this date has not been completed and the same is still in incomplete condition. More than 32 months have already been elapsed. But the OPs 1, 2, 3, 4 and 5 have not delivered the possession of the flat and the car parking area unto the complainant. The purpose of purchase has been frustrated due to delay in delivery of possession and complainant has lost her hope and is no more interested to take possession of the flat and car parking area. The complainant sent legal notice dated 09.03.2018 to OPs 1 to 5 requesting to refund the deposited amount with interest but OPs 4 and 5 avoided their responsibility. OPs 1, 2 and 3 have also refused the notice dated 09.03.2018. It is alleged that the OPs have indulged in unfair trade practice and are deficient in rendering service. The complainant has prayed for refund of the deposited amount along with compensation and litigation cost.
OPs 1, 2 and 3 and OP 6 have not appeared in this case. Neither of them have contested the case and the case has proceeded ex-parte against the OPs 1, 2,3 and 6.
OPs 4 and 5 have, however, contested the case and filed written version contending, inter-alia, that the case is not maintainable in is present form and the complainant is not entitled to get the relief as prayed for, against them.
It is stated that the complainant has no cause of action against these OPs 4 and 5.
It is also stated that OPs 4 and 5 are not deficient in service nor have involved in unfair trade practice as against the complainant.
It is also stated that these OPs have made a number of correspondences with the developer for solution but to no good.
These OPs also submit that upon receiving their consideration money of the flat in dispute i.e. 40% of the total consideration of the flat in dispute, these OPs have all along been ready to complete the registration but as the rest of the consideration amount has not been offered to have been paid to these OPs, the complainant could not ask these OPs for due completion of the registration thereof of the flat in dispute.
It is stated that complainant for no reason have implicated these OPs in this case and the instant case is liable to be dismissed with cost against OPs 4 and 5.
IssueS
(1) Is the case maintainable in its present form and prayer?
(2) Whether the OPs are deficient in rendering service to complainant?
(3) Whether the OPs have indulged in unfair trade practice?
(4) Whether the complainant is entitled to get a decree as prayed for along with other reliefs?
Issue No. 1
Ld. Lawyer appearing before this Commission on either of the side have not advanced any argument on the point of maintainability of the case. Ld. Lawyers from the side of the complainant and OPs have not advanced any argument on the point of the maintainability of the case.
This issue has not been pressed by either of the side in course of their argument before us.
We find that the complainant booked to purchase the flat in question and as such the complainant is consumer. OPs 1, 2 and 3 are developers and as such service providers other OPs are land owners and financer. The case thus clearly falls within the ambit of Consumer Protection Act, 1986 as amended.
It appears that the value of the flat along with car parking area is Rs. 23,26,700.00p (Rs. 21,26,700.00p for flat and Rs. 2,00,000.00p for car parking area). This Commission as such has also pecuniary jurisdiction to entertain the case.
The issue as such decided in favour of the complainant.
Issue Nos.2 and 3
These issues are taken conjunctively for the sake of brevity and convenience of discussion.
We have perused Xerox Copy of loan agreement, Xerox Copy of offer letter of acceptance, Xerox Copy of agreement for sale dated 10.08.2015, Xerox copies of payment of money receipts, Xerox Copy of legal notice dated 09.03.2018 along with postal slip, Xerox Copy of reply notice dated 26.03.2018 etc. We have perused the development agreement dated 02.07.2013, between OPs 1, 2, 3 and OPs 4 and 5.
It appears that OP 1 is a partnership firm and OPs 2 and 3 are the partners of OP 1 firm. M/S. M.R. Consturction (OP1) took up a project of multi storied building consisting of several flats as developer under the name and style “Sanchita Apartment” on the land belong to OPs 4 and 5 at Mouza Alisha, G.T. Road, Joteram, P.S. Burdwan, District Purba Bardhaman, PIN 713103.
It appears that the parties entered into tripartite agreement amongst themselves on 10.08.2015 wherein the OPs agreed to sale the flat in question at the total price of Rs. 23,26,700.00p (Rs. 21,26,700.00p for flat and Rs. 2,00,000.00p for car parking space) with a condition of deliver the possession of completely constructed flat in all respects to the complainant within 18 months from the date of execution of the tripartite agreement for sale.
It also appears from the money receipts that the complainant paid a sum of Rs. 22,21,701.00p (Rupees Twenty Two Lakh Twenty One Thousand Seven Hundred One only) paid till this date to the OPs 1, 2 and 3.
It is also given to understand to us that the construction work of the said flat till this has not yet been completed and the same is still in incomplete condition. More than 32 months have already elapsed from the date of execution of the tripartite agreement for sale but possession has not yet been delivered to the complainant in respect of either the flat or car parking area.
It is also evident that the complainant along with her husband have been regularly paying EMIs of the house building loan to OP 6.
None appears from the side of the OPs 1, 2 and 3 to controvert either the evidence or the documents on record as filed on the side of the complainant. Failure to complete and/or construct the flat in question or to deliver the possession of the same with car parking space to the complainant with the stipulated period as per agreement for sale amounts to deficiency in service and unfair trade practice on the part of the OPs 1, 2 and 3.
It is also evident that OPs 4 and 5 being landowners have not collected any amount from the complainant. The money receipts have been signed by M/S. M.R. Construction. It is also not the case of the complainant that the complainant paid any amount to the OPs 4 and 5 being landlords. Hon’ble Apex Court in Banga VS S.V. Construction in Civil Application No. 944 of 2016 has been hold that landowner is also a consumer under C.P. Act and builder is service provider. From the development agreement it appears that Landlord is not sharing the profit, or has control or interest over the management or sharing liability of loss and it is not a joint venture agreement with the landowners. It does not appear that OPs 4 and 5 are co-adventurers or have any say and control in the construction and participation in business. Clause 12 of the agreement of sale dated 10.08.2015 does not also cast any responsibility upon OPs 4 and 5 in respect of refund etc. It also appears from annexure C series that it is the developer who has received all the payment and as such the question of repaying back also relates to the developer.
Ld. Senior Advocate appearing from the side of the complainant argued before us that OPs 1 to 5 are liable to pay back or refund the deposited amount to the complainant and OPs 1 to 5 have to refund the amount of Rs. 22,21,701.00p (Rupees Twenty Two Lakh Twenty One Thousand Seven Hundred One only) to the complainant. He has also cited judgement dated 17.12.2019 passed by the Hon’ble Supreme Court in Civil Appeal No. 10748 of 2016.
We are afraid the factual matrix involved in this case is not similar to the case of citation. The breach of agreement for sale as we find is not attributable to OPs 4 and 5. The failure to hand over the possession of the flat to the complainant cannot be said to be on account of non-performance of the obligation of OPs 4 and 5. Moreover, the said decision is related to arbitration award as to the apportionment of liability between the developer and Chandigarh Housing Board. The liability of paying back or refund the amount deposited by the complainant cannot be foisted on OPs 4 and 5 being the landowners. There is also no dispute about the encumbrances of the allotted land.
It is crystal clear that the developer failed to complete the flat in question for his own deficiency in service.
The question of finishing such construction within the period is with the developer alone. So, we find that the instant decision is not attracted in the instant case.
We find that OPs 1, 2 and 3 have exhibited a gesture of deficiency in service and have indulged in unfair trade practice causing mental suffering, agony and harassment to the complainant.
We think that OPs 1, 2 and 3 have to refund the amount of Rs. 22,71,701.00p (Rupees Twenty Two Lakh Twenty One Thousand Seven Hundred One only) along with interest @ 9% per annum on and from 10.02.2017 to the complainant apart from compensation of Rs. 2,00,000.00p (Rs. Two Lakhs only) and litigation cost of Rs. 20,000.00p (Rupees Twenty Thousand only).
Hence,
ordered
The instant case be and the same is allowed ex-parte against the OPs 1, 2 and 3 and dismissed on contest against OPs 4 and 5.
OPs 1, 2 and 3 are directed to refund an amount of Rs. 22,21,701.00p (Rupees Twenty Two Lakh Twenty One Thousand Seven Hundred One only) to the complainant along with interest @ 9% per annum since 10.02.2017 till compliance within 60 days from the date of this order.
OPs 1, 2 and 3 are also directed to pay Rs. 2,00,000.00p (Rupees Two Lakhs only) to the complainant towards compensation for causing mental agony, harassment within the said period apart from litigation cost of Rs. 20,000.00p (Rupees Twenty Thousand only). Failure to comply with the order will entitle the complainant to put the decree into execution, and in that event OPs 1, 2 and 3 shall be liable to pay punitive damage @ Rs. 5000.00p (Rupees Five Thousand only) per month to the complainant till compliance.
We make no order as against the OPs 4, 5 and 6.
Let a copy of this order be supplied to the parties free of cost.