MR. SHYAMAL KUMAR GHOSH,  MEMBER 

1. The instant  Consumer  Case has been filed by the complainants against the opposite parties praying for certain reliefs which are reproduced as under:-

1. To refund Rs.11,00,000/-,
2. To pay compensation Rs.5,00,000/- for harassment,
3. To pay compensation Rs.7,00,000/- for mental agony and escalation of price of the flat elsewhere,
4. To pay cost of the suit Rs.50,000/- and to pass such further order/orders as your Lordship may deem fit and proper,

        And for this your petitioner as in duty bound shall ever pray.

2. The  panorama of the case is that the opposite parties 1 and 2 both are recognized as the developers and the rest of the opposite parties (3 to 8) are called as land owners. A Registered Power of Attorney has been executed between the landowners and the developers wherein the ops/Ramawati Construction has been appointed as an attorney to construct a building on the land after demolishing the existing structure. Going through the registered power of attorney dated 11/09/2015 for development purpose, the complainants had an interest to purchase a flat. At the time of execution of the agreement dated 24/11/2016, the complainants have paid Rs.10,00,000/- (ten lakh) only to the ops/developers on the self same date. Thereafter the complainants have also paid Rs.14,30,000/- (fourteen lakh thirty thousand) only in different instalments. The said amount has been acknowledged by the ops/developers. The complainants have paid 50% of the consideration money. But the fact discloses that there was no chance to get the flat in habitable condition and further more that the developer has duped the complainants to accept less area of flat 1316 sft instead of 1600 sft as per agreement executed between the parties. Since the developer could not build or  make any construction the building within the stipulated period of time, the complainants/petitioners could not wait for uncertain and indefinite period of time for getting the flat in question and as such the complainants have prayed for refund of money, but the developer/op did not pay any heed in this respect. One Nasiruddin, planner and estimator of Panihati Municipality has been appointed for measurement of the said flat but after measurement of the same it was found that the covered area is approximate 1316 sft and the garage  measuring super built up area is 90.56 sft. But as per agreement dated 24/11/2016 it has been agreed by and between the parties that 1600 sft more or less super built up area and one go-down on the west side measuring a super built up area of 100 sft would have been provided to the complainants. But the op/developer has failed to comply with the said terms and conditions also and as such refund of money is the best option at the behest of the complainants. Till date no suitable or fruitful result has been come out and as such having no other alternative the complainants have rushed to this Commission for getting proper reliefs as prayed for.
3. The opposite parties 1 & 2 contested this case by filing written version stating inter alia that by virtue of agreement for sale the complainants have agreed to purchase the flat in the second schedule of agreement  with a total consideration amount of Rs.42,00,000/- and out of which the complainants have already  paid Rs.21,00,000/- only to the opposite party-2/developer till 11/012017. After execution of aforesaid agreement, the complainants instructed the op no – 2 to make some modification and alteration of the said flat in question and as per said instruction, the op no -2 has already borne the cost of Rs.1,00,000/-. The complainants, herein, has promised to pay the same to the op no – 2 at the time of execution and registration of the deed of conveyance. The opposite parties have also urged that the complainants have failed to pay full consideration money of Rs.42,00,000/- to the op/developer within the stipulated period of time. Therefore, the opposite party/developer has requested the complainants in regular manner to pay the same. But the complainants have failed to comply with the terms and conditions of the agreement  causing violation of clause no 3 of the terms and conditions of the said agreement. By filing written version, the opposite parties have  stated that the complainants have made concocted story regarding measurement of less area of the flat in question. By demanding on the part of the complainants, the opposite party/developer has already refunded the amount of Rs.5,00,000/- only vide cheque no- 000252 and further amounting to Rs.5,00,000/- vide cheque no – 000253 dated 14/08/2017 ie total amount of Rs.10,00,000/- (ten lakh) only to the one of the complainant viz Sri Mohendra Prasad Gupta and to that effect the said complainant has made a declaration on 14/08/2017. The said complainant has wanted to get back the remaining dues of Rs.11,00,000/- by Sept 2017. The opposite party no 2 again and again has requested the complainants to meet with the op no – 1 and get the cheque of the said amount but the complainants did not turn up and even they have not sent any letter thereof claiming said amount by 14^th August 2017. By filing written version the opposite party no-2 herein has stated clear readiness to pay the said amount. But by suppressing all material facts, the complainants have instituted this case for causing harassments upon the opposite parties. The opposite parties, denying all allegations mentioned  in the petition of complaint, have stated that this petition has no basis at all. The said petition of complaint has been filed by the complainants with an ill motive and accordingly the ops have prayed for dismissal of the petition of complaint.       
4. The ld counsel appearing for the complainants argued that the total consideration amount of the flat in question has been fixed at Rs.42,00,000/- and Rs.10,00,000/- has  already been paid at the time of execution of the aforesaid agreement. Thereafter, they have subsequently paid Rs.2,00,000/- on 14/11/2016 + Rs.8,00,000/- on 24/11/2016 + Rs.1,30,000/- on 01/12/2016 + Rs.3,00,000/- on 29/12/2016 = Rs.14,30,000/-. Therefore, out of total consideration the complainants have already paid Rs.24,30,000/- to the opposite party no 2/developer and to that effect the ops have also issued money receipts on the various dates. Ld counsel, at this juncture, further argued that till date the opposite parties have failed to deliver the flat in question within the stipulated period of time mentioned in the aforesaid agreement. It is admitted and undisputed fact that the opposite parties have refunded Rs.10,00,000/- to the complainants. Now they are entitled to get the refund a sum of Rs.14,30,000/- from the end of the opposite parties though in the prayer portion the claim amount of Rs.11,00,000/- has been written instead of Rs.14,30,000/-. However, the ld counsel appearing for complainants has prayed for refund of Rs.14,30,000/- from the end of the opposite parties as the flat in question has not  yet  been delivered to the complainants till date. Not only that the opposite parties has intended to deliver 1316 sft super build up area instead of 1600 sft which causes grave injustice to the complainants as well as it also causes gross violation of the terms and conditions of the said agreement already executed by and between the parties herein. Accordingly, the ld counsel has prayed for passing necessary order/orders so that the complainants are entitled to get proper reliefs as prayed for against the opposite parties.
5. Ld counsel appearing for the opposite parties argued that they have already refunded Rs.10,00,000/- to the complainants out of total payment of Rs.24,30,000/-. The ld counsel has further stated that on various occasions time and again the opposite party no -2 has requested Sri Mohendra Prosad Gupta, one of the complainant herein, to meet with the opposite party no-1 to take the remaining dues amounting to Rs.11,00,000/- but the complainants have failed to meet with the opposite parties. The opposite parties was ready to pay the said dues to the complainants but the complainants suppressing all material facts have instituted the aforesaid consumer case against the opposite parties in order to gain financial benefit. Accordingly the ld counsel has prayed for dismissal of the instant petition of complaint with exemplary costs.
6. We have the heard the ld advocates appearing for both parties at length and in full.
7. Hearing of argument has been concluded.
8. We have considered the submissions of the both sides.
9. We have perused the materials available on the record meticulously.
10. It is admitted that a development power of attorney has been executed and registered on 11^th September 2015 wherein it appears to us that being the landowners/opposite parties no – 3 to 8 herein they would hand over the vacant and peaceful possession of the landed property to Ramawati Construction, represented by its proprietor Smt Rita Gupta, constituted attorney, for the purpose of developing the land after demolishing the existing structure standing thereon as mentioned in the schedule. Be it mentioned here that the construction of the building would be made as per sanctioned building plan and except the owners’ allocation the rest portion would be delivered to the intended purchaser/purchasers according to their choice from the developer allocation.
11. It is admitted that one agreement for sale has been executed by the complainants and the opposite parties herein on 24^th day of November 2016 wherefrom it appears to us that the complainants, herein, have intended to purchase a self contained independent flat situated at North-East-West (front side) on the 4^th floor of the building measuring area 1600 sft more or less super built up area consisting  of bed rooms, dining, kitchen, toilets, balcony and one go-down on the West side measuring a super built up area 100 sft more or less. The said agreement reveals that the total consideration amount of Rs.42,00,000/- has been fixed and out of said total consideration, the complainants have paid Rs.10,00,000/- to the developer towards earnest money and to that effect the developer/opposite party has acknowledged the same which is clearly reflected in the memo of consideration of the aforesaid agreement dated 24/11/2016.
12. Now, we have carefully perused the money receipts issued by opposite party no – 1 wherefrom we find that the complainant no – 1/Mahendra Prasad Gupta has made the following payments in respect of flat in question and to that effect the opposite party no – 1 has also issued the following money receipts which are described as under:-

By the money receipt dated 14/11/2016 Rs.2,00,000.00

By the money receipt dated 24/11/2016 Rs.8,00,000.00

By the money receipt dated 01/12/2016 Rs.1,30,000.00

By the money receipt dated 29/12/2016 Rs.3,00,000.00

Having heard the ld advocates for both sides and upon careful perusal of the above calculation table as well as the memo of consideration of the aforesaid agreement dated 24/11/2016, it is clear to us that the complainants have already paid Rs.24,30,000/- only to the op/developer out of total consideration amount of Rs.42,00,000/- only.

13. From the four corners of the record and evidence it is also clear to us that already the opposite party/developer has refunded Rs.10,00,000/- only to the complainants and the said event has been admitted by the ld advocate appearing for the complainants at the time of final hearing.
14. It is very apparent from the case record that the agreement for sale has been executed between the parties in the year 2016. Now it is 2023 as such there is no hesitation to hold that till date the opposite parties have failed to deliver the possession of the aforesaid flat to the complainants. Not only that upon careful perusal of the sanctioned plan prepared by Sk. Nasir Uddin, Planner and Estimator of the Panihati Municipality, it is crystal clear to us that the super built up area of the aforesaid flat has been shown as 1316 sft (but the complainants are entitled to get 1600 sft as per agreement for sale) and super built up area of garage has also been shown as 90.56 sft (but the complainants are entitled to get 100 sft as per agreement for sale) causing gross violation of the terms and conditions of the aforesaid agreement for sale dated 24/11/2016 on the part of the opposite parties/developers.   
15. Upon careful perusal of the page no – 4 of the written version it appears to us that the opposite party no – 2 herein was always ready to pay the remaining dues of Rs.11,00,000/- only to the complainants and in final hearing ld advocate has submitted that they are ready to pay the remaining balance to the complainants.
16. Under such circumstances it is very  common and practical event  that it should not be possible at the behest of the complainants to wait for indefinite period of time for getting their flats form the opposite parties/developers. At this juncture, it should be better for the complainants to get back the amount already given to the ops/developers.

16.(a)  In this respect,  we can safely rely upon the decision Fortune Infrastructure and another vs Trevor D’lima and others reported in 2018 5 SCC 442 wherein the Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of amount paid by him along with compensation.

16.(b) In  Suniti Kumar Bhat and others Vs Unitech Acacia Projects Pvt Ltd and others reported in 2018(3)CPR 795 (NC) wherein the Hon’ble National Commission has been pleased to hold that when the builder fails to construct the flat on time, he is entitled to pay compensation in the form of interest and cost of litigation

17. When the opposite parties are also ready to make the refund of rest amount to the complainants, there is no bar to pass the order of refund in favour of the complainants in order to meet the proper justice to the parties.

18. As per our aforesaid observation and calculation made herein above the complainants are entitled to get Rs.14,30,000/- only as out of total payment of Rs.24,30,000/- the opposite parties have already refunded Rs.10,00,000/- only to the complainants. But at this juncture, we are not in a position to pass the order of refund of Rs.14,30,000/- only as in the prayer portion of the consumer case, the complainants have prayed for refund amounting to Rs.11,00,000/- only instead of Rs.14,30,000/- only. It is well settled principle of law that the complainant/petitioner cannot go beyond his/her pleadings and on the basis of the said principle the complainants are entitled to get refund of Rs.11,00,000/- only.  
19. Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of the ld advocates for both sides as well as profound respect to the aforementioned citations of the Hone’ble Apex Court and Hon’ble NCDRC, we are of the view that there is a strong materials in favour of the complainants and accordingly we are constrained to allow the instant petition of complaint against the opposite parties 1 & 2/developers on contest and dismissed ex-parte against the opposite parties 3 to 8/landowners as they have already appointed a constituted attorney by executing of the power of attorney dated 11^th Sept 2015.

         Hence,

     It is

                                                    O R D E R E D

That the opposite parties 1 and 2/developers are directed to make the refund the consideration amountof Rs.11,00,000/- (eleven lakh) only to the complainantsalong with interest@ 8% p.a. from the date of each payment till the date of full realization in the form ofcompensation.

That the opposite parties 1 and 2 are also directed to pay litigation cost of Rs.20,000/- (twenty thousand) only to the complainants within 45 (forty-five days) from the date of this order in default the said amount shall carry interest @ 8% p.a. till full realization.

The complainants are at liberty to put the said order in execution when the ops 1 and 2 will be defaulters to comply with the above order.

No order is passed against the ops/3 to 8 landowners.

The said consumer complaint stands disposed of accordingly.

Let a copy of this order be supplied to the parties free of cost.

Note accordingly.