Date of Filing: 21.8.2018
Date of Judgment: 23.6.2022
Mrs. Sashi Kala Basu, Hon’ble President
This is a complaint filed by the complainant , Rakhi Shaw, under section 12 of the C.P Act, 1986 against the O.Ps namely 1) Nirmalendu Bagchi 2) Bikash Sarkar, 3) Nripendra Nath Sengupta , alleging deficiency in service on the part of the O.Ps.
The case of the complainant in short is that O.P nos. 1 and 2 are the developers and O.P no.3 is the land owner. They entered into a Development Agreement on 5.8.2015. A Power of Attorney was also executed by O.P no.3 in favour of the O.P no.1 . Complainant being desirous to purchase a flat in the said project at premises no. 38, M.G Road under P.S Haridevpur approached the O.P nos. 1 and 2 who agreed to sell a habitable complete flat being flat no.7 measuring an area of 400 sq.ft on the third floor at a total consideration of Rs. 8 lac. So, accordingly an agreement for sale dated 16.10.2015 was executed between the complainant and the O.P, the developer. Complainant paid Rs. 3 lac out of the total consideration of Rs.8 lac on 16.10.2015 and has further paid Rs.1 lac on 11.01.2016 and Rs. 2 lac on 28.1.2016 through cheques. So, total sum of Rs. 6 lac has been paid by the complainant out of total consideration of Rs. 8 lac. The possession of the flat was to be handed over within a period of 18 to 24 months from the date of agreement. But by a letter dated 23.8.2017 O.P no.1 stated to the complainant that it was not possible for the developer to give possession due to some legal problem. So, by the said letter dated 23.8.2017 the O.P no.1 agreed to refund the amount of consideration paid by the complainant. But the complainant has neither been handed over the flat, nor has been refunded the money paid by her. So,the present complaint has been filed by the complainant praying for directing the O.P to execute and register the sale deed in terms of the agreement for sale dated 16.10.2015 in respect of the schedule flat in favour of the complainant on receiving the balance consideration price or to refund the entire amount of Rs.6 lacs paid by the complainant, to pay compensation of Rs.2 lac and to pay litigation cost of Rs.2 lac.
The O.P no.1 is contesting the case by filing written version denying and disputing the allegations made against it. It is specifically contended by the O.P no.1 that the signature of the O.P no.1 as stated in Annexure F which is a letter dated 23.8.2017 has been obtained by the complainant mischievously without knowledge of the O.P no.1. The O.P no.1 has prayed for dismissal of the case.
O.P no.3 has also contested the case contending inter alia that as per the terms of the joint venture agreement between O.P nos. 1 and 2 with the O.P no.3, the construction of the proposed building of 3 storied as per Municipal Sanctioned Plan was to be done . The O.P no.1 did not obtain the sanctioned plan and also did not do any constructional work in the said premises due to which on consent of both the parties the development agreement and power of attorney was cancelled by 2 separate Deed of Cancellation. Subsequently O.P no.3 with the help of his sons obtained sanctioned plan for 2 storied house from the KMC wherein there is no sanction of any third floor. As such, there is no scope to hand over any flat in the third floor being no. 7 to the complainant as per agreement for sale entered into between the complainant and the O.P no.1. Thus, the O.P no.3 has prayed for dismissal of the case against him.
During the course of the trial complainant filed affidavit-in-chief but no questionnaire has been filed by the contesting O.P.no.1, neither any evidence is filed by the contesting O.P no.1. So, ultimately the matter was fixed for argument. BNA has been filed by the complainant.
O.P no.3 did not take any step after disposal of a petition filed by him challenging maintainability of the complaint.
Be it mentioned here that vide order dated 27.1.2020 the petition filed by the O.P no.3 challenging maintainability of the complaint was considered and rejected on the ground that the evidence is required to be seen whether the flat as agreed between the complainant and the O.P no.1 is beyond the sanctioned plan.
So, the points required to be determined are as follows:
- Whether there is any deficiency in service on the part of the O.Ps .
- Whether the complainant is entitled to the reliefs as prayed for.
Decision with reasons
Both the points are taken up together for discussion in order to avoid repetation.
The complainant has filed agreement for sale dated 16.10.2015 entered into between her and the O.P no. 1, the developer. Admittedly the Joint Venture Agreement to develop the property was entered into by O.P no.3 with O.P nos. 1 and 2 and Power of Attorney was also executed subsequently by O.P no.3 but only in favour of O.P no.1. However, it is an admitted fact that no plan was sanctioned from the KMC by the O.P no.1, developer. Complainant has filed the agreement for sale entered into between her and the O.P no.1 on 16.10.2015 wherefrom it appears that an amount of Rs. 3,00,000/- was paid to O.P no.1 on the date of execution of agreement. Complainant has also filed the money receipts showing payment of further sum of Rs. 1,00,000/- & Rs. 2,00,000/- respectively. So, Rs.6 lakh has been paid to O.P no.1 out of total consideration price of Rs.8 lac.
According to the O.P no.3, since no sanctioned plan was obtained by the O.P no.1, developer, mutually the power of attorney in favour of O.P no.1 and the Development Agreement was cancelled. Subsequently sanction plan was obtained by the O.P no.3 himself with the help of his sons from K.M.C. KMC has given sanction on the basis of width of the road being ground floor and second floor. On the ground floor one garage has been sanctioned and two flats have been sanctioned out of which one flat is one room and two flats each in the first floor and second floor. There is no sanction of any third floor as per sanction plan and as such the agreement entered into between the complainant with the O.P no.1 ,the developer, for sale of a flat in the third floor being flat no.7 could not be enforced as there is no existence of the third floor. So, since O.P no.1 also has admitted that the construction work could not be done by him and according to O.P no.3 there is no such 3rd floor or flat no.7, there cannot be any direction to execute and register the deed of sale as prayed by the complainant. However, since the documents especially the receipts filed by the complainant supports her claim of payment of a sum of Rs.6 lac , she is entitled to the refund of the said sum as the O.P no.1 being the developer neither has handed over the flat for the reasons as highlighted above, nor has refunded the sum paid by the complainant. In the given situation of this case, complainant is also entitled to the compensation (in the form of interest) for the harassment and mental agony.
Hence,
ORDERED
That CC/517/2018 is allowed on contest against O.P no.1 and dismissed against O.P nos. 2 and 3.
O.P no.1 is directed to refund the sum of Rs.6 lac to the complainant along with interest @ 8% p.a on the said sum from the date of execution of the agreement to till this date within 2 months from this date.
O.P no.1 is further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of 2 months from this date.
In failure of the payment of the sum as directed above by the O.P no.1, the entire sum shall carry further interest @8% p.a till realization.
