Date of Filing: 10.06.2019

Date of Judgment: 30.06.2022  

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainants namely Dipak Sarkar & Smt Shila Sarkar under section 12 of Consumer Protection Act 1986 against Opposite Parties  ( referred as OPs herein after) namely:-  1) M/S  Tania Construction 2) Barnali Kumar 3) Arun Kumar Chatterjee 4) Ashok Chatterjee 5) Baisakhi Chatterjee 6) Gita Goswami  7) Shyamal Biswas  and 8) Jayati Biswas  alleging deficiency in service on the part of the OPs.

 The case of the complainants in short is that OP No.1 being represented by its Proprietor namely OP No.2 as developer had advertised & invited Booking of flats. So the complainant being interested to purchase a flat booked the subject flat on payment of Rs 4 Lacs/- out of total Consideration price of Rs 7Lacs/-. An agreement of sale was executed between the complainant and OP No.1 the developer being represented by OP No.2 on 16.01.2018 to sell the subject flat and a open car parking space. The said agreement for sale was a registered agreement and the complainant has paid Rs 83,955/- towards stamp duty and registration fee. The development agreement was entered between OP No.1 and OP No.2 with OP No.3 to 8 as owners and power of attorney was also executed by the owners in the favour of the developer. Complainants have paid a total sum of Rs 6 lacs/-  for the subject flat out of total consideration of Rs 7 lacs/- apart from bearing the registration fee of Rs 83,955/-. OP No.1 and  OP No.2  promised to deliver the possession of the flat within March 2018 but the possession has not been delivered. The complainants subsequently learnt on enquiry that the subject flat was within the owners allocation. The complainants came to know about the same after obtaining certified copy of development agreement dated 15.08.2017. OP No. 1 & 2 totally suppressed the fact that the subject flat is within owners allocation and the developer has no right to sell the same. So the present complaint has been filed directing the OP to deliver the possession in respect of the subject flat after issuance of completion certificate & also to execute and register the deed of conveyance. In alternatively to  refund the sum of Rs 6 lacs/- paid by the complainant as earnest money and also refund Rs 83,955/- paid by the complainants towards stamp duty and   registration fee, for an order of injunction  restraining    the OP to transfer the   property to 3^rd party, to pay compensation of     Rs 3 lac/- & to pay Rs 50000/- as litigation cost.

                OP No. 3 to 8 are contesting the case by filing the written version. It is specifically contended by OP No.3 to 8 that they are not acquainted with activities of OP No.1 & OP No.2 and if any agreement has been executed by and between the OP No.1 and OP No.2  with the complainants, the same is beyond the knowledge of OP No. 3 to 8. For any deficiency, allegedly  claimed by the complainants, OP No.1 and OP No.2 are solely responsible. Thus OP No. 3 to 8 have prayed for dismissal of the case  against  them.

On perusal of the record it appears that in spite of the service of  notice, OP No.1 and OP No.2 did not take any step and thus case has been heard exparte against them.

                 During the course of the trial both parties filed their respective evidence followed by filing of questionnaire and their reply and  ultimately argument has  been heard. BNA has also been filed by the complainant.

                So the following points require determination:-

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

Decision with Reasons

Both the points are taken up together  for discussion in order to avoid repetition. In order  to substantiate their claim that an agreement of sale was executed  between complainants  and OP1 being represented by OP No.2 , complainants have filed agreement of sale dated 16.01.2018.

                On perusal of the written version filed by OP No. 3 to 8 , it is evident that there is no dispute that OP No. 3-8 being the owners had entered into development agreement  with OP No.1 & OP No.2  and also had executed the power of attorney .However this is the admitted case of complainant themselves that  the subject flat which was agreed to be sold by OP No.1 & OP No.2 to the complainants actually was within the  allocation  belonging to the owners. The copy of development agreement has also been filed. If that be so then The OP No. 1 being represented by OP No. 2 has suppressed the fact and practised fraud upon the complainant. It is the specific claim of the complainant that OP No. 1 &  2 had not provided them the development agreement before entering into agreement of sale. So the complainants were not in the knowledge of the fact that subject flat did not fall in the developers allocation. The complainants have filed the agreement as already referred to above  entered between them and OP developers and from Memo of consideration, it is evident that a total sum of RS 6 Lac  have been paid by the complainant to the OP No.2 . The OP No.2  has acknowledged receiving of the said sum. Apparently the said Agreement of sale is a registered instrument  and it discloses that a sum of Rs 83,955/- was paid towards Registration fee and stamp duty which according  to complainants,  was paid by them. Even though complainants  in the case  have also prayed for directing OP to deliver the possession and execute the deed but considering the  case of complainants themselves , that the subject flat was not in developers allocation and it was within owner’s allocation, there cannot be such direction of handing over possession or to execute the deed as prayed by the complainants.   However complainants  are entitled  to refund of the  sum of Rs 6 lac paid as earnest money and also Rs 83,955/- paid towards registration and stamp duty from the OP No. 1 and 2. They are also entitled to interest on the said sum in the form of compensation.

 Hence

              Ordered

CC/271/2019 is allowed ex-parte against OP No. 1 and 2 and dismissed  on contest  against OP No. 3 to 8. OP 1 & 2  are directed to refund the sum of Rs 6 lac and also to pay Rs 83,955/- to the complainants along with interest on the said sum @ 8% per annum from date of agreement of sale till this date  within 2 months from this date. OP 1 and 2  are further directed to pay litigation cost of Rs 10,000/- to the complainants within aforesaid period of 2 months. In failure to pay the sum as directed above, the entire sum shall carry further interest @ 8% per annum till realisation.