For the Complainants                         - Mr. Debashis Bhandari, Advocate.

For the OPs 2 to 7                              - Mr. Asutosh Das,Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

            This is an application u/s.12 of the C.P. Act, 1986

Brief facts of the case are that OPs 2 to 7 are the owners’ of KMC Premises No.105, Bir Nagar, PS : Patuli, Kolkata – 700 086 and they entrusted the OP – 1 to construct a three storied building in their land measuring about 2 Kottahs, 10 Chitaks, 02 Sq. ft  under RS Plot No. 495,  E.P. No. 12, Ward No. 101 of Kolkata Municipal Corporation by executing Development Agreement dated 04.06.2015. Complainants had entered into an Agreement for Sale with the OP-1 for purchasing a Flat measuring about 350 Sq. ft. (Super built up area) consisting of one bedroom, dinning-cum-kitchen and bathroom on the 1^st floor of the said three storied building at a total consideration of Rs.7,00,000/-. The complainants paid Rs.2,00,000/- to the OP -1 against money receipt dated 20.05.2016. In terms of Agreement for Sale dated 09.03.2016, the OP-1 is liable to handover the subject flat to the complainants within 08 months. Complainants are ready and willing to pay the balance consideration amount of the subject flat to the OP-1 but the OP-1 failed to handover possession of the flat to the complainants. Ultimately, the OP-1 promised to refund the consideration of Rs.2,00,000/- within two months by executing an undertaking dated 07.05.2017 but failed to fulfill his commitment. Having no other alternative, the complainants wrote a letter to the OP-1 with a request to refund the consideration amount. Such letter was unattended. There is deficiency in service and unfair trade practice on the part of the OP-1. Hence, the complainants have filed the instant consumer case praying for direction upon the OP-1 to handover the subject flat and / or refund the consideration amount of Rs.2,00,000/- with 10% interest till payment including compensation of Rs.50,000/- and litigation cost of Rs.5,000/-.

OP-1 was duly served of the complaint. However, despite service of notice upon him, no WV is filed. Thus, the case has proceeded ex parte against OP-1.

Despite service of notice, the OP-1 did not turn up to contest the case. Thus, the case has proceeded ex parte against the OP-1.

The complaint has been resisted by the OPs 2 to 7 by filing a joint Written Version contending inter alia that the case is bad for mis-joinder of necessary parties and barred by law of limitation. The specific case of the answering OPs is that the alleged Agreement for Sale was executed between the complainants and OP-1. As such, the complainants cannot entitle to any relief or reliefs against the answering OPs.  The answering OPs had entered into a Development Agreement dated 03.06.2014 with the OP-1 for construction of a three storied building on their land being KMC Premises No.105, Bir Nagar, Kolkata-700 086 and also executed a registered power of attorney in favour of the OP-1. In terms of the Development Agreement, the OP-1 did not complete the three storied building and deliver their allocation. The answering OPs have no liabilities towards the complainants. The Consumer Forum have no jurisdiction to decide the dispute alleged by the complainants and the Civil Court is the proper authority to decide the dispute. There is no deficiency of service and / unfair trade practice on their part. Accordingly, the answering OPs have prayed for dismissal of the complaint with cost.  

Decision with Reasons

            Both parties led evidence through affidavit in support of their case. They have also given reply against the questionnaire set forth by their adversaries. Beside the same, both parties have relied upon several documents in support of their respective cases. In course of final hearing both parties have filed BNAs.

            We have heard the Ld. Advocates of the parties and have gone through the evidence and record of the case carefully.

            Facts remains that OP-2 to 7 are the owners’ of land measuring about 2 Kottahs, 10 Chitaks, 02 Sq. ft  under RS Plot No. 495,  E.P. No. 12, Ward No. 101 of Kolkata Municipal Corporation which known as Premises No. 105, Bir Nagar, PS : Patuli, Kolkata – 700 086. It is also true that the OPs 2 to 7 had entered into a Development Agreement with the OP-1 to construct a three storied building in the said premises with a certain terms and conditions. There is no dispute that the complainants had entered into an Agreement for Sale with the OP-1 / Developer for purchase of a flat measuring about 350 Sq. ft. (Super built up area) consisting of one bedroom, dinning-cum-kitchen and bathroom on the 1^st floor of the said three storied building at a total consideration of Rs.7,00,000/-. We have scrutinized the Agreement for Sale and the memo annexed thereto and find that the OP-1 received Rs.2,00,000/- from the complainants as booking money of the flat. It is admitted that the OP-1 failed to construct three storied building in the land of the OPs 2 to 7 in terms of the Development Agreement though the OP-1 already received consideration amount of Rs.2,00,000/- from the complainants against the subject flat. The OP-1 also executed an undertaking to the effect that he will refund the booking money to the complainants within two months from 07.05.2017 but failed to fulfill his commitment. Even the OP-1 did not reply the request letter of the complainants regarding refund of Rs.2,00,000/-. Needless to say, the parties are bound by the agreement. The complainants and the OP-1 have full knowledge and understanding about of the contents of the Sale Agreement. The OP-1 did not turn up to deny the allegation of the complainants that no such Agreement for Sale was executed between themselves in respect of the subject flat and no booking money was received by him. The complainants being the consumer cannot wait for an indefinite period for getting possession, execution and registration of the Deed of Conveyance in respect of the subject flat. The OP-1 did not reply the letter of the complainants regarding refund of booking money even he failed to fulfill his commitment dated 07.05.2017. It would be manifestly unreasonable to construct the contract the contract between the party as requiring the buyer to wait indefinitely for possession. Nearby four years has elapsed from the date of Agreement for Sale. A buyer can be expected to wait for possession of a reasonable period. A period of four years is beyond what is reasonable. Thus, the aggrieved complainants cannot be suffered any more without any fault on their part. In our opinion, there is deficiency in service and unfair trade practice on the part of the OP-1/Developer.  As such, the OP-1 is liable to refund the consideration amount along with compensation and litigation cost.

            The OPs 2 to 7 have no role regarding non hand over possession of the subject flat to the complainants and there was also no contract between the complainants and the OPs 2 to 7 in this regard. Therefore, there is no deficiency in service and / or unfair trade practice on the part of the OPs 2 to 7. Thus, the case should be dismissed against the OPs 2 to 7.

            In view of the above discussion, the consumer complaint is allowed ex parte against the OP1/Developer and also dismissed on contest against the OPs 2 to 7 with the following directions:

1. The OP-1 is directed to refund Rs.2,00,000/- (Rupees two lacs) only to the complainants,
2. The OP-1 is directed to pay Rs.20,000/- (Rupees twenty thousand) only to the complainants as compensation,
3. The OP-1 is also directed to pay Rs.5,000/- (Rupees five thousand) only to the complainants as cost of litigation,
4. The OP-1 is also directed to comply the above directions within 45 days from the date of the order, failing which the complainants may put the order in execution according to Consumer Protection Act, 1986.