Dt. of filing – 22/02/2018

Dt. of Judgement – 31/01/2019

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is  filed by the complainants namely Zakaria Ahmed and Rehana Khatun under Section  12 of the Consumer Protection Act against the opposite  parties  namely: - (1) M/s. UMA Associates, (2) Subrata Gupta , (3) Manju Naskar and (4) Somnath Naskar alleging  deficiency  in service on the part of the  OP.

 Case of the complainants in short is that  by an agreement for sale  dated 03.03.2010  complainants agreed to purchase a flat  being No. A2, Block-A measuring   740 sq.ft. to be constructed  on the land measuring about  16 cottah 4 chittaks 7  sq.ft.  at Mouja – Tegori comprising  Khatian No. 147 pertaining to Dag No. 495 within  Police Station -  Sonarpur at a total  consideration   price of Rs. 7,40,000/-. OP Nos.  3 and 4  ( Proforma  OPs ) are the owner  of the land. Complainants paid an amount of Rs. 2,75,000/- out of the total consideration price to the OP No.2   the sole proprietor  of the OP Firm. Inspite of making of the payment, the construction  was not  completed  by the OP No.2. Several  request was made by the complainant but OP Nos. 1 and 2 failed to complete the  construction work and thus complainant lodged a complaint at Survey Park Police Station. Ultimately present complaint has been filed by the complainants for directing the OPs to complete the schedule flat and deliver the peaceful possession of the same to the complainant after registering the sale deed or in alternatively for directing the OPs to refund Rs.  2,75,000/- paid to the OP  No.2  with interest @ 12% p.a., to pay compensation of Rs. 6,00,000/- for harassment and mental agony  and to pay  the litigation cost.

          Complainant has annexed with the complaint petition, agreement  entered into between the parties dated 03.03.2010. Money receipts showing payment and copy of the FIR lodged at  Survey Park Police Station, Santoshpur.

          OP Nos.3 and 4 have contested   the case by filing W.V.  stating inter alia that the  developer/OP No.1 failed and neglected  to construct the building on the schedule property in terms of the development agreement  entered into between  OP Nos. 3 to 4  with OP Nos. 1 and 2 within the stipulated  period  as per the building sanctioned plan. He only constructed one building namely Block – B comprising 12 nos. Self-contained residential flats and failed to deliver the possession of the owner’s allocation even in the said building in terms of the development agreement dated 05.05.2009. Consequent to the same, OP Nos. 3 to 4 have cancelled the development agreement and revoked the General Power of Attorney in favour of OP No.2.  So,  OP No.1 had no authority  to enter into agreement for  sale with the complainant.  OP Nos. 3 and 4 have also  filed a  Civil Suit 
being T. S. 21 of 2016 before the  Ld. Court of   2^nd Civil Judge  ( Junior  Division )  at Baruipur against the OP No.1. So, the OP nos. 3 and 4 have prayed for dismissal of the case.

          Inspite of service of notice, OP Nos. 1 and 2 did not take any step and thus vide order dated 23.05.2018, case proceeded exparte against them.

          Following points require determination:

1. Whether  there has been any deficiency  in service  or unfair trade practice  on the part of the OPs ?
2. Whether the complainants are entitled to relief as prayed for?

Decision with reasons

        Point nos. 1 and 2 :

                   Both these points are taken up for a comprehensive discussion. Complainant has filed the agreement entered into between the complainants and the OPs on 03.03.2010. The agreement  was executed by  OP No.2  sole proprietor of OP No.1 as developer and constituted attorney  of OP Nos. 3 and 4, at a total consideration price of Rs. 7,40,000/-.  As per the schedule of payment in the agreement, construction was to be completed before 18 months of the agreement indicating the  flat  was  to be handed over  within the said period of  18 months. Admittedly, the flat has not been handed over    to the complainant. Complainant has filed the receipts  showing payment of total  amount of Rs. 2,75,000/-  out of the  total consideration amount of Rs. 7,50,000/-. It is stated by the complainant that the OP has failed and neglected to complete the construction of the building. It appears from the  W.V. filed by the  OP nos. 3 and 4 that  as per development agreement the said OP /developer  was to raise the construction  of two buildings in two Blocks but he only constructed  one building namely  Block-B comprising  of 12 nos. Self-contained residential flats indicating that Block –A has not been constructed by the said developer. The schedule –B in the agreement reveals that the complainants agreed to purchase the flat in block-A. So,  claim of the complainant that the OPs  have failed and neglected  to complete the construction of the flat as agreed is substantiated by OP Nos. 3 and 4. If that be so than  there has been deficiency  in service  on the part of the  OPs, cannot be  denied and disputed. However, it may be pointed  out that  OP Nos. 3 and 4  have stated  that they cancelled  the development agreement and so OP No.2   could not  enter into   the agreement for sale  with the complainant,  cannot be  accepted as it appears  that the General Power of Attorney was  revoked  on 24.11.2014 whereas  the agreement  for sale in favour of  the complainant was executed  by the OP Nos. 1 and 2 with the complainant on 03.03.2010. In such a situation complainants   are entitled to the relief as prayed for. It is  settled law that the   ‘Consumer’ cannot be made to suffer due to dispute between the builder and the owner of the property and pendency of the civil suit does not bar a consumer claiming the relief under the Consumer Protection Act. However, as it is apparent  that the building namely Block ‘A’ in which the complainant had booked the flat, has not been raised, it would be  appropriate to allow the alternative relief of refund of amount as prayed by the complainant  together with interest therein. Thus these points are accordingly answered.

Hence,

                                                              Ordered

          CC/83/2018 is allowed on contest against the OP Nos. 3 and 4 and exparte against OP nos. 1 and 2. OP nos. 1 and 2 are directed  to refund Rs. 2,75,000/-  paid by the complainant with interest  on the said amount @12% p.a. from the  date of last payment i.e.  09.12.2015 within two  months from the date of passing this order. OPs are further directed to pay litigation  cost  of Rs.12,000/-  to the complainants within the  aforesaid period of two months  failing which  the entire  sum   shall carry interest  @ 10% p.a. till realisation.