HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Consumer Complaint u/s 17 of the Consumer Protection Act, 1986 (For short, “the Act”) is at the instance of the intending purchasers against the Developer and the Landowners on the allegation of deficiency in services on the part of them in providing a proposed flat measuring a super built-up area of 800 sq. ft. to 1200 sq. ft. more or less on the second floor of the premises to be constructed at Premises No. 35A & 35B, Gurupada Halder Road and 1A, Sadananda Road, Kolkata-700026.
Succinctly put, Complainants’ case is that being in need of an accommodation for residential purpose they entered into an Agreement for Sale with the OP No. 1-Developer on 8.6.2009, to purchase a flat as mentioned above @ Rs. 3,000/- per sq. ft. along with a covered car-parking space at a consideration of Rs. 2,25,000/-. The Complainants paid a total consideration of Rs. 10,00,000/- on diverse dates. It was stipulated that the possession of the flat and the cover car-parking space would be delivered within 36 months from the date of sanction of the plan, but the OP No.1-Developer has failed and neglected to handover the possession of the flat and the car-parking space within the time-frame. In this regard, all the persuasions of the Complainants including a Legal Notice through their Ld. Advocate dated 5.10.2012 yielded no result. Hence, the Complainants have approached this Commission with prayer for certain reliefs, viz. – (a) to direct the OPs to handover the physical possession of the flat and the car-parking space as per measurement specified in the Agreement for Sale; (b) to direct the OP No. 1 to take the balance consideration amount and to execute and register the Sale Deed @ Rs. 3,000/- per sq. ft. as per terms of the Agreement; (c) to pay compensation of Rs. 14,00,000/- for causing physical and mental harassment; (d) to pay litigation cost of Rs. 20,000/-, etc.
The OP No. 1-Developer by filing a Written Version did not deny about receipt of Rs. 10,00,000/- in accordance with the terms of the Agreement, but stated that due to the situation beyond their control they could not fulfil their part of obligation in accordance with the terms of the Agreement.
The OP No. 4, i.e. one of the Landowners, Shri Indrajit Chakrabarty, by filing a Written Version has submitted that the Complaint should be dismissed in limini against them.
During hearing of the case, Smt. Ruby Chakrabarty, the Complainant No. 2, has filed evidence on affidavit. Similarly, the OP No. 4 has also filed evidence on affidavit. The evidence of Complainant No. 2 and OP No. 4 were subjected to questionnaire by their adversaries and replies thereto by the parties. The OP No. 1-Developer did not file evidence on affidavit and ultimately abstained from contesting the case at the time of final hearing of the case.
On the basis of the contentions of the parties the following points are emerged for consideration :
- Are the Complainants Consumers as defined in Section 2(1)(d) of the Act?
- Is there any deficiency on the part of the OPs as service providers?
- Are Complainants entitled to reliefs, as prayed for?
DECISION WITH REASONS
POINT NOS. 1 & 3 :-
All the points are taken up together for the sake of convenience and to skip reiteration.
The materials on record indicate that the OP No. 1 is the Developer and sole proprietor of M/s. Orion Constructions. The OP Nos. 2 to 6 are the Landowners who appointed the OP No. 1-Developer as their Constituted Attorney for commencing amalgamation of entire plot of land owned by the OP Nos. 2 to 6 to one plot and after obtaining necessary sanction shall erect and construct the building and flats thereon. Being emboldened with such authority the OP No. 1-Developer has entered into an Agreement for Sale with the Complainants on 8.6.2009. By virtue of the said Agreement the OP No. 1 agreed to sell one proposed flat measuring super built-up area of 800 sq. ft. to 1200 sq. ft. more or less facing south on the second floor at Premises No. 35A & 35B, Gurupada Halder Road and 1A, Sadananda Road, Kolkata-700026, to the Complainants. The price of the flat was settled at Rs. 3,000/- per sq. ft. and the rate of covered car-parking space was settled at Rs. 2,25,000/-.
In the Written Version the OP No. 1-Developer has admitted the receipt of the payment of Rs. 10,00,000/- made by the Complainants as part consideration amount.
The Agreement also makes it clear that the Developer will construct the building within 36 months from the date of sanction of the plan provided the vendor is not prevented from doing construction by any order of Court, Municipal Corporation and reasons beyond his control. In the Written Version the OP No. 1-Developer did not spell out any reason whatsoever which prevented him to fulfil his part of obligation in accordance with the terms of the Agreement dated 8.6.2009. Needless to say, the parties are bound by the Agreement and there is hardly any scope to add or subtract anything and as such, the contents of the Agreement towers above the rest.
Therefore, when it is quite apparent that the OP-Developer could not keep his commitment in accordance with the terms of Agreement being a Builder/Developer, certainly the Complainants, being Consumers within the meaning of Section 2(1)(d) of the Act, have suffered much on account of deficiency in services on the part of the OP No. 1-Developer to act in terms of the Agreement. Therefore, the Complainants are entitled to reliefs as prayed for.
It is well-settled that if a Builder or Promoter fails to handover the possession of the flat within the time-frame as per Agreement, the purchaser of flat has the right to demand refund of the amount paid with interest and compensation. Therefore, the decision of the Hon’ble National Commission reported in 2015 (2) CPR 540 (NC) – [M/s. Utopia Projects Private Limited Vs. Shahin Bi Mulla) and the factual matrix of the case clearly indicate that the instant Consumer Complaint should be allowed against the OP No. 1-Developer and liable to be dismissed against the rest.
In our view, besides an award of refund of Rs. 10,00,000/- the Complainants are entitled to compensation. From the record it reveals that the Complainants have paid Rs. 5,00,000/- on the date of Agreement, i.e. on 8.6.2009, and subsequently they have paid Rs. 2,00,000/- and Rs. 3,00,000/- on 26.3.2010 and 17.5.2010 respectively. Within this long span of 6-7 years the OP-Developer used the said money for the construction purpose and on the other hand, the Complainants being the purchasers had to suffer huge mental agony and harassment and as such, we think a compensation of Rs. 10,00,000/- in the facts and circumstances of the case would meet the ends of justice. Besides the same, the Complainants are also entitled to litigation cost, which we quantify as Rs. 10,000/-, from the OP No. 1-Developer.
Therefore, all the above three issues are decided in favour of the Complainants and disposed of accordingly.
In the result, the Complaint succeeds in part.
It is accordingly ordered that the instant Complaint is allowed on contest in part against the OP No. 1-Developer with cost of Rs. 10,000/- with a direction upon the OP No. 1 to refund Rs. 10,00,000/- and to pay compensation amount of Rs. 10,00,000/- to the Complainants within 30 days from the date. The Complaint is dismissed against the rest of the OPs without any order as to costs.
The OP No. 1-Developer is directed to make the entire payment of Rs. 20,10,000/- to the Complainants within one month from this date, otherwise the amount shall carry interest @ 12% per annum from today till its full realization.
The Registrar of this Commission is directed to send a copy of this judgment to the OP No. 1 forthwith for information and compliance.
