This Complaint it filed by the Complainants under Section 12 of Consumer Protection Act, 1986, alleging deficiency in service as well as unfair trade practice against the OPs, as the OP-1 did not bother to hand over the B Scheduled Flat to them as per the Agreement dated 20.12.2015 and register the same by taking the balance consideration money in their favour or to refund the amount as paid by the Complainants along with compensation till filing of this Case.
The brief fact of the case of the Complainants is that the OP-1 and 2 are the Developers who are running their promoting business under the name and style separately as mentioned in the cause title of the complaint. The OP-3 and 4 are the Land Owners and they were separately possessed the Bastu Land measuring 2 cottahas and 16 Square Feet and 2 cottahas and 5 Square Feet respectively. The OP-3 on 31.12.2008 had entered into a Development Agreement with the OP-2 for erection of a multistoried building after developing the said land and accordingly on 09.03.2009 the OP-3 signed, executed and registered a General Power of Attorney in favour of the OP-2 to do the all acts and deeds for construction of the apartment on the said land. Another land owner namely OP-4 entered into a Development Agreement with the OP-2 on 21.10.2009 for erection of a multistoried building consisting of several self-contained flats, shops and car parking spaces. On 20.09.2011 the OP-4 signed, executed and registered a General Power of Attorney in favour of the OP-2 to do the all works. The OP-2 after amalgamation of the two plots into one plot totaling an area of 4 cottahas and 21 Square .Feet got the sanctioned building plan for G + 3 storied building and subsequently for construction of the 4th floor obtained sanctioned plan from the Rajarhat-Gopalpur Municipality. As per sanctioned plan the OP-2 constructed up to 3rd floor and due to financial stringency the 4th floor could not be raised as well as the building also could not be completed.Then the OP-2 felt it necessary to assign the Agreement and asked the land Owners for written consent/no objection in assigning the Development Agreement to another Developer for constructing and completion of the Building-Project in all respect. Upon getting written consent from the OP-3 and 4 the OP-2 by an Agreement dated 15.05.2015 assigned the original Development Agreement dated 31.12.2008 and 21.10.2009 to the OP-1 for construction of the 4th floor, completion the entire incomplete works and complete the entire building habitable in all respect as per the terms and the conditions of the Agreement.
In terms of the Agreement dated 15.05.2015 between the OP-2 and OP-1, the assignee shall get 50% of the constructed area of the 4th floor against the cost of the construction of the 4th floor and completion of other incomplete works and in this respect neither the OP-2 nor the OP- 3 and 4 shall raise any objection in future. The remaining 50% will remain under the custody of the OP-2. At this juncture the OP-1 has declared its intention to sell out the flat no. 4B measuring a Super Built up Area of 813 Square Feet (more or less) on the 4th floor of the building together with proportionate share of land, along with share and interest in common areas/facilities etc. and the total consideration of said flat was fixed at Rs.12,50,000/-. The Complainants were searching a good accommodation since long and having heard about the flat in question, the Complainants contacted with the OP-1 and after prolonged conversation they agreed to purchase the flat no-4B measuring Super Built up Area of 813 Square Feeton the 4th floor of the said building at the consideration of Rs.12,50,000/- only. But due to gross negligence, deficiency in service as well as unfair trade practice on behalf of the OP- 1 in rendering service inspite of written agreement as well as commitment, most deliberately did not perform his part as per the Agreement for Sale till filing of this Complaint. The OP-1 did not take any step to provide physical possession in the said flat after receipt of the balance amount in habitable condition along with execution of the Sale Deed in their favour. As per the Agreement for Sale the Complainants paid a sum of Rs.4,00,000/- on 02.12.2015 by way of cheque and the OP-1 issued money receipt in favour of the Complainants to that effect. The Complainants are always ready to pay the balance amount of Rs.8,50,000/- which is scheduled to be paid at the time of registration of the flat in question. In the Agreement for Sale dated 20.12.2015 it was specifically mentioned that entire construction works of the building including the common amenities and facilities shall be completed within January 2016 and practically the OP-1 committed that the Complainants will get physical possession in the said flat by that time. But inspite of specific commitment the OP-1 had failed and neglected to act upon i.e. to provide physical possession of the flat, execution of the Sale Deed in respect of the B Scheduled flat by taking the balance consideration money in favour of the purchasers within the stipulated time. The Complainants on several occasions requested the OPs to do the needful but the OP-1 on each and every occasion gave false assurance and duped the Complainants. In this manner though several years have elapsed, the OP-1 most illegally has failed to discharge his liability and in the year 2017 the Complainants were told by the OP-1 that the OP-1 is unable to deliver the questioned flat unless or until the Complainants will pay a sum of Rs.2,00,000/- extra apart from Rs.8,50,000/-. Upon hearing the same the Complainant became shocked and with folded hands the Complainants requested the OP-1 to refund the amount as paid by them on the ground that the Complainants were not in a position to pay a sum of Rs.2,00,000/- as extra amount.
At that material point of time the OP-1 started to issue cheques one after another but all the cheques were dishonored. Under compelling situation in the year 2018 the Complainants met with the OP-1 and asked him to do the needful.Very surprisingly at that point of time the OP-1 became furious and in a straight way refused to do anything, on the contrary threatened them to prepare for dire consequences. After few days the Complainants got notice from the concerned Police Station and upon perusing the content of the summon the Complainants came to know that the OP-1 lodged a false Complaint before the Ld. SDEM, Barasat by presenting a cock and bull story which has no legs to stand upon the said case is still pending for disposal. The act and activities of the OPs are suffering from gross negligence as well as deficiency in service for which the Complainants are also suffering from tremendous mental pain, agony, anxiety and unnecessary harassment for a prolonged period. Due to this reason the Complainants are entitled to get adequate compensation from the OP-1. As the OP-1 did not take any step for redressal of the grievances of the Complainants till filing of this Complaint, finding no other alternative the Complainants have approached before this Ld. Forum praying for direction upon the OP-1 to hand over the ‘B’ Schedule flat as per the Agreement dated 20.12.2015 along with execution of the Deed of conveyance in their favour after taking the balance consideration money of Rs.8,50,000/- or to refund the amount as paid by the purchasers to the OP-1 along with compensation. The Complainants have also sought for compensation to the tune of Rs.4,00,000/- for mental agony pain, anxiety, unnecessary harassment and Rs.10,000/- towards litigation cost along with other reliefs as deem fit.
After admission hearing of this compliant, notices were issued upon the OPs. On 02.09.2019 the OP-3 and 4 have appeared by filing Vokalatnama. The Complainants filed track reports in respect of the service of the notices from where it was evident that the OP-3 and 4 received the notices, but since the date of receipt of the notices till 02.09.2019 the statutory period for filing written version was over. As per prayer of the OP-3 and 4 time was given for filing written version subject to payment of cost of Rs.1000/- in total payable to the Consumer Legal Aid Account by way of Demand Draft/Bankers’ Cheque. The track report of the OP-1 revealed that the OP-1 received the notice on 15.07.2019, but chose not to appear before this Ld. Forum to contest the Compliant either orally or by filing written version. Hence this Ld. Forum was pleased to pass an order that the Complaint will run ex parte against the OP-1. The track report of the OP-2 showed that service was not completed. The Complainant was directed to take necessary step for service of notice upon the OP-2. Date was fixed on 20.09.2019 for filing written version by the OP-3 and 4 along with payment of cost and S/R of OP-2. On 20.09.2019 the Complainants were present. No written version was forthcoming on behalf of the OP-4, as the statutory period was over, order was passed to that effect that the Complaint will run ex parte against the OP-3 and 4. On the said date as no track report was submitted by the Complainants in respect of the OP-2, further date was given to the Complainants for filing track report on 29.11.2019 without any fail. On 29.11.2019 the Complainants filed track report in connection with the service of notice of OP-2, from where it was evident that on 07.11.2019 the OP-2 received the notice but on the said date the OP-2 was absent on calls. As the statutory period was not over, further date was given for filing written version by the OP-2 on 23.12.2019. On 23.12.2019 OP-2 remained absent without taking any step. No written version was forthcoming and in the meantime the statutory period for filing written version was expired. This Ld. Forum was pleased to pass an order that this Complaint will also run ex parte against the OP-2. Date was given to the Complainants for adducing evidence on affidavit on 13.01.2020. The Complainants adduced evidence on affidavit on 13.01.2020 and date was fixed for hearing argument as well as filing BNA as the Petition of Complaint is represented by the Ld. Counsel. Date was fixed for final argument on 20.01.2020. On the said date the OP-1 namely Sri Somnath Chakraborty was present in person against whom this Complaint is running ex parte. Inspite of this in the interest of Natural Justice the Complainant as well as Sri Chakraborty were given scope for filing Brief Notes of Argument on 21.01.2020. On 20.01.2020 the Ld. Counsel for the Complainants had advanced his argument in full. On 21.01.2020 though the Ld. Advocate for the Complainants filed BNA, but none was turn up on behalf of the OP-1 i.e. Mr. Somnath Chakraborty did not bother to file BNA inspite of getting an opportunity. Upon receipt of the BNA date is fixed for delivery of Judgment.
We have carefully perused the Petition of Complaint, related documents as annexed, affidavit-in-chief as adduced by the Complainants, Brief Notes of Argument filed by the Complainants as well as argument advanced by the Ld. Counsel for the Complainants at length.
It is seen by us that admittedly the Complainants entered into an Agreement for Sale with the OP-1-Developer for purchasing a flat namely 4B measuring a Super Builtup Area of 813 Square Feet (more or less) together with proportionate share of land along with share and interest in common areas/facilities. The total consideration price of the said flat was scheduled at Rs.12,50,000/-. It is pertinent to mention that initially the OP-3 and 4 being the land owners of the questioned land had entered into the Development Agreement with the OP-2 for erection of a building on the said land after developing the same. The two land owners provided two plots to the OP-2 totaling an area of 4 Cottahas 21 Square Feet. Initially the OP-2 got the sanctioned plan for construction of G+3 storied building on the said land. It is pertinent to mention that in the Development Agreements entered into by and between the OP-2 and 3 and 4 respectively on different dates, there the land owners’ allocation was mentioned along with payment of amount in cash to the OP-3 and 4 payable by the OP-2 in lieu of the said land. It can be said that against the land as provided by the OP-3 and 4 they were entitled to get their respective allocation along with cash amount from the OP-2. Subsequently, the OP-2 got sanctioned plan for the 4th floor construction in respect of the said building from Rajarhat-Gopalpur Municipality.
It is mentioned in the petition of Complaint that the OP-2 raised construction upto the 3rd floor but could not complete the entire construction work due to paucity of fund. He came to realize that due to financial stringency it will not be possible for him to complete the said building in all respect including the construction of the fourth floor. Then he approached the land owners to assign the agreement and asked them to give him written consent so that he can assign an agreement with another developer/contractor for construction of the fourth floor and to complete the said building in all respect. Upon getting written consent from the land owners, agreement was assigned by and between the OP-1 and the OP-2 for the abovementioned works to make the building in habitable condition. In terms of the agreement by and between the OP-1 and the OP-2, the OP-1 and OP-2 will get 50% of the constructed area of the fourth floor against the cost of the construction of the fourth floor along with completion of other incomplete works proportionately. Neither the OP-3 nor the OP-4 will raise any objection to such proposal of the OP-1. The OP-1 had declared his intention to sale the Flat no-4B measuring a super built up area of 813 square feet (more or less) on the fourth floor of the said building along with proportionate share of land and proportionate share of the amenities and facilities. Consideration price for the said flat was scheduled at Rs.12,50,000/-. Accordingly the OP-1 had entered into an agreement for sale with the Complainants to sell out the questioned flat at the said price. From the Agreement for Sale dated 20.12.2015 it is evident that the Complainants will get a flat on the 4th floor of the said building being no. 4B measuring about 813 Sq. Ft (Super Built up Area) and the consideration price of the said flat is for Rs.12,50,000/-. It is mentioned in the page 11 in the said Agreement for Sale that at the time of Execution of the Sale Agreement the Complainants have to pay a sum of Rs.4,00,000/- and the balance amount of Rs.8,50,000/- have to pay on the date of Registration. The Money receipt dated 02.12.2015 reveals that the OP-1 received an amount of Rs.4,00,000/- from the purchasers through cheque being no. 215638 dated 03.12.2015 drawn on Bank of India. From the said payment it is crystal clear that the Complainants have discharged their first phase liability by making payment of Rs.4,00,000/- to the OP-1. As per the Agreement the OP-1 had miserably failed to handover peaceful vacant possession to the purchasers within the stipulated period i.e. within the year 2016. The OP-1 had also failed to execute the Deed of Conveyance in respect of the questioned flat in favour of the purchasers upon receipt of the balance amount from the Complainants.
In the meantime the Complainants have approached on several occasions to the OP-1 for handing over peaceful possession in the said flat along with execution of the Sale Deed, but the OP-1 did not pay any heed to their request, rather it is evident from the pleading that the OP-1 claimed further Rs.2,00,000/- extra excluding Rs.8,50,000/-.
During hearing the Ld. Counsel for the Complainant had attracted our notice to the Police report submitted by Mr. Subrata Modok, ASI of Police, Baguiati P.S, BDNPC, dated 18.01.2019 endorsed by the Officer-in-Charge of the concerned Police Station to the Ld. Court of Executive Magistrate (Sadar), North 24-Parganas, from where it is evident which runs as follows
‘during enquiry of the complaint, I had been to the residence of the Petitioner as well as the Opposite Party and enquired the matter locally and it could be learnt that the Petitioner has taken Rs.4,00,000/- from the OP member named Smt. Archana Majumder with an assurance to provide residential flat in favour of said Archana Majumder and an Agreement was executed regarding the purchase of the said flat between the Petitioner and the Opposite Party member, Smt. Archana Majumder. But after completion of stipulated time period the Petitioner failed to handover the flat to Smt. Archana Majumder, as such she demanded return of money but the Petitioner failed to refund the said money. Even the Petitioner given nine numbers of Cheques to said Archana Majumder in respect of refund of her money, but those cheques were dishonored due to insufficient fund. Accordingly the OP party member Archana Majumder and her niece named Mithu pal conjointly have created pressure upon the Petitioner to refund the said money. As the Petitioner failed to refund the said money, the OP Members became furious about the subject and there is every chance of breach of peace over the issue of the said dispute.’
It is pertinent of mention that as the OP-1 could not provide the peaceful physical possession at the questioned flat within the stipulated period and on each and every occasions the prayers/requests of the Complainants was redundant by the OP-1, being frustrated with the action and attitude of the OP-1 the Complainants started to claim for refund of the amount as paid by them along with interest. Accordingly the OP-1 assured them that the amount will be refunded to them instead of providing physical possession in the said flat. Accordingly the OP-1 issued some cheques in favour of Archana Majumder towards refund of the amount, paid, but the cheques were dishonored due to insufficient funds in the account along with some other reasons and in such dishonor of cheques there was no role of Smt. Archana Majumder. It is noted by us that surprisingly the OP-1-Sri. Somnath Chakraborty had approached before the Ld. SDEM, Barasat against Archana Majumder and Mithu Pal alleging that the Complainants being the hooligans of the locality are intentionally harassing him by creating pressure on him for refund of the amount with the help of others and prayer was made for restraining them, which was registered as M.P. Case-2795/2018. Accordingly police started to enquire into the matter as per the order of the said Ld. Court and on 18.01.2019 the concerned Police Station submitted the aforementioned report to the Ld. SEDM, Barasat.
Therefore from the said report as submitted by the concerned police station after an enquiry it is crystal clear that the cheques which was issued on behalf of the OP-1 for making refund of the paid amount to Archana Majumder, the same were ‘Dishonored due to insufficient fund.’ So as per the prayer of the Complainants the OP-1 had neither provided physical possession in the said flat nor refunded the paid amount to the Complainants till filing of this complaint. In our opinion inspite of making written commitment through the agreement for sale, the OP-1 has miserably failed to discharge his liability in providing physical possession in the said flat along with execution of the sale deed in favour of the purchasers, which can easily be termed as deficiency in service on behalf of the OP-1 and moreover after taking consideration amount from the Complainants in part as per the terms and the conditions of the agreement for sale, such inaction on the part of the OP-1 can also be termed as unfair trade practice, for which the OP-1 is under the obligation to pay adequate compensation to the Complainants for such unnecessary harassment. Not only that as per the unchallenged pleading it is evident to us that the OP-1 has claimed a sum of Rs.2,00,000/- beyond the agreement for sale. As per settled law as the OP-1 and the purchasers have entered into the said agreement for sale by putting their respective endorsement, none can go beyond the terms and the conditions of the said agreement. Violating the terms and the conditions of the agreement for sale if any amount was claimed by the OP-1 from the purchasers, the Law does not support such malafide intention of the OP-1.
It is mentioned earlier that inspite of receipt of the notice the OP-1 chose not to contest this complaint either orally or by filing written version. Not only that as the OP-1 was appeared, in the interest of Natural Justice opportunity was given to him for filing Brief Notes of Argument. But the OP-1 has also failed to avail of the said opportunity. In respect of non-filing of the written version we may rely on the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’
The abovementioned Ruling can be applicable in the case in hand as in the instant complaint also as inspite of receipt of notices and their appearance (OP-1, 3 and 4), the OPs chose not to contest the complaint by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.
So, upon adjudication of this complaint in our considered view that the Complainants have proved the allegation against the OP-1 by producing cogent documentary evidence. It is also true that as the OP-1 did not bother to resolve the grievance of the complainants before coming to the Court of Law, hence by filing this complaint the Complainants have to incur some expenses to proceed with this complaint, so for this reason in our considered view the Complainants are also entitled to get litigation cost. Further as the OP-1 did not take any step to handover the possession in the said flat along with execution of the sale deed in favour of the purchasers within the stipulated period or did not take any step to refund the amount as paid by the Complainants along with interest till filing of this complaint, due to inaction and deficiency in service on behalf of the OP-1, the Complainants are very much entitled to get compensation. Hence the complaint succeeds.
For computation of the compensation amount we have to mention some facts of this case further. Petition of complaint as well as the two separate development agreements by and between the OP-2 and the OP-3 and 4, written consent of the OP-3 and 4 for assigning the construction work for the fourth floor to the OP-1, agreement by and between the OP-1 and OP-2 and the agreement for sale by and between the OP-3 and 4 as land owners- the Complainants being the purchasers- the OP-2 being the developer and the OP-1 being the contractor reveal that agreement for sale was executed by and between the abovementioned six persons i.e. two land owners, one developer, one contractor and two purchasers. For determination of compensation amount we are to rely on the Reportable judgment passed by the Hon’ble Supreme Court in the case of Chandigarh Housing Board vs. M/s. Parasvanath Developers Private Limited & Another, passed Civil Appeal no-10748/2016 (Civil Appellate Jurisdiction), dated 17.12.2019, wherein it has been held that in case of Tripartite Agreement i.e. builder-landowner-purchaser, if compensation be imposed on the builder due to deficiency in service, then proportionate compensation should be imposed on the land owner.
It is true that as per the development agreement the landowners (OP-3 &4) in this complaint gave the power of attorney to the developer (OP-2) for erection of the building on the said land and against the land the OP-2 was under the obligation to provide the land owners the land owners’ allocation as mentioned in the development agreement. Subsequently as per the request and prayer made by the OP-2 the land owners gave written consent to the developer for selection of another developer/contractor for construction on the fourth floor and completion of the entire incomplete works in the said building. For such purpose a separate agreement was signed and executed by and between the OP-1 and OP-2 on 15.05.2015 mentioning that out of the total construction on the fourth floor of the said building the ratio will be 50:50. It is needless to mention that for execution of such agreement on 15.05.2015 the OP-2 obtained written consent from the land owners. Thereafter the aforementioned six persons have entered into an agreement for sale. Admittedly the Complainants booked the questioned flat from the OP-1 by making payment of Rs.4,00,000/- to him. It is pertinent to mention that inspite of being developer the OP-2 could not construct the fourth floor along with complete the entire incomplete works due to paucity of his fund and then only taking written consent from the land owners had entered into the agreement with the OP-1 for construction of the fourth floor of the said building and completion for other incomplete works. Therefore having regard to the abovementioned judgment passed by the Hon’ble Supreme Court, we cannot exonerate the OP-3 and 4 from imposing penalty on them and as the OP-2 was a party to the agreement for sale, then he also cannot avoid his liability for making payment of compensation. In the relied case land owner’s allocation was specifically mentioned in percentage (%) in the development agreement, so it was mentioned that in 70:30 the compensation should be given by the developer and the land owner respectively, but in the case in hand the land owner’s allocation has not been mentioned in percentage (%). So we are to incline to impose compensation on the land owners as well as the OP-2 on adhoc basis.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-03/2019 is hereby allowed exparte against the OP-1, 2, 3 and 4 with cost.
The OP-1 is directed to provide the peaceful vacant possession in the questioned flat to the Complainants as per the specification mentioned in the agreement for sale dated 20.12.2015 along with execution of the sale deed in respect of the said flat in favour of the Complainants within 60 days from the date of passing of this judgment. The Complainants are directed to pay the balance consideration money to the tune of Rs.8,50,000/- to the OP-1 at the time of execution of the deed of conveyance. In default the OP-1 shall refund the amount of Rs.4,00,000/- to the Complainants along with interest @12% p.a. for the period from the date of making payment of the said amount i.e. 02.12.2015 till realization of the entire amount. The OPs shall pay compensation to the tune of Rs.2,00,000/- to the Complainants, out of which the OP-1 shall pay a sum of Rs.1,00,000/- to the Complainants, the OP-2 shall pay a sum of Rs.50,000/- (being the 50:50 sharer on the fourth floor) and the balance amount shall be paid by the OP-3 and 4 equally to the Complainants i.e. Rs.25,000/- each within 60 days from the date of passing this judgment. The OP-1 shall also pay litigation cost to the Complainants to the tune of Rs.50,000/- within the abovementioned period.
Let plain copy of this judgment be given to the parties free of cost as per the CPR, 2005
Dictated & Corrected by
[Hon’ble MRS. Silpi Majumder]
MEMBER
