Date of Filing             :    27 March, 2023.

Date of Judgement    :    30 January, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Smt. Sakhi Shaw, hereinafter called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against (1) Mr. Sanjib Koley, (2)  Sk. Shamsuddin and (3) Mr. Goutam Kumar Das, hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OP arising out of non-compliance of the Agreement for Sale dated 26/06/2020 by the OPs.

            The brief fact of the complaint, as stated in the complaint petition supported by annexed documents, is that, that the complainant entered into an Agreement for Sale on 26/06/2020 with the OP Nos. – 2 & 3 (emphasis provided), intending to purchase a flat measuring about 500 sq ft including super built up at the fifth floor of the proposed building constructed by the OPs at the premises at 177/1/1/2, Belilious Road, P. S. – Bantra, Howrah – 711 101, for a total consideration of ₹7,50,000/-.  According to the complaint she paid a total sum of ₹2,66,000/- to the OP Nos. – 1 & 2 and the OP Nos. – 1 & 2 signed while receiving the amounts on the agreement for sale.  Suddenly the OP Nos. – 1 & 2 stopped receiving the payment from the purchaser/complainant despite repeated requests of the complainant. Then she sent a notice to the OPs through her Ld. Lawyer on 03/01/2023 but the OPs did not respond to this notice nor did they return the sum of ₹2,66,000/- paid by her for purchasing the said flat. Finding no other alternative to resolve her problem she filed this instant complaint through her Ld. Lawyer praying: (a) to direct the OP Nos. 1 & 2 to deliver possession immediately of the said flat receiving the balance consideration  or to refund ₹2,66,000/- with interest till disposal of the case,  (b) to direct all the OPs to register the Deed of Sale in respect of the said flat,  (c) to direct the OPs to pay ₹2,00,000/- to the complainant for unfair trade practice, ₹1,00,000/- as compensation for her mental agony and harassment and ₹50,000/- as litigation cost in addition of ₹2,66,000/- paid by her and all other relief/reliefs as she be entitled to get according to law and fact.

            Complainant filed copy of the notarised Agreement for Sale executed on 26/06/2020 between the complainant and the OP Nos. – 1 & 2 as annexure to the complaint petition.

            Notices were served upon the OPs after admission to appear and contest the case by filing written version.  None of the three OPs appeared nor did they filed any written version for which the case proceeded ex parte against all the O.Ps. Complainant then filed her examination-in-chief. Ultimately argument was heard in full and the complainant filed a petition praying to treat her Evidence as her Brief Notes on Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper service to the complainant for which she entitled to get relief as prayed for.

DECISION WITH REASONS

           1.    let us first take the statement made in the complaint petition.  In this complaint complainant stated that she entered into an Agreement for Sale with the OP Nos. – 2 & 3, actually she executed this agreement with the OP Nos. 1 & 2 who are the developers in the instant case, on 28/06/2020.  According to this agreement she intended to purchase a 500 sq ft flat at the fifth floor in the proposed G+5 storied buing being constructed by the Developers, the OP Nos. – 1 & 2, at the premises at 177/1/1/2, Belilious Road, Bantra, Howrah – 711 101,  The OP No. 3 is the owner of this premises comprising of 4 Cottahs 12 Chittacks 27 sq ft area.  Total consideration for this 500 sq ft flat was settled at ₹7,50,000/- and, according to the statement of the complaint, she paid a total sum of ₹2,66,000/- on various dates to the OP Nos. 1& 2.  Afterwards when the OPs refused to receive further amount she sent a notice to the OPs through her Ld. Lawyer on 03/01/2023 reqesting the OPs to hand over the scheduled flat in her favour or refund the amount paid by her with interest.  But the OPs did not respond to her notice for which she filed this instant complaint. The complainant has not filed the copy of this notice as annexure to the complaint.   

            2.         Now, let take the Agreement for Sale dated 26/06/2020 excuted between the complainant as Purchaser and the OP Nos. 1 & 2, whom the complainant stated as OP Nos. 2 & 3, as the Developer/Confirming Party.  In this agreement we see that the land owner, the OP No. – 3 stated herein above, got possession through inheritance and Gift Deed of the premises situated at 177/1/1/2, Belilious Road, at present Aswani Kumar Mondal Road, Bantra, Howrah, comprising of 4 Cottahs 12 Chittacks 27 sq ft.  From this agreement we find that the owner, along with his brother, then alive, got a plan sanctioned by the authority for construction of a G+2 storied building, sanctioned vide no. BR-326/2008-09.  But the owners were able to construct a G+1 storied building.  Thereafter the present sole owner executed a development agreement with the Developers, the OP Nos. 1 & 2, together with the Power of Attorney which were registered before the DSR-II, Howrah, in 2018. On the strength of these development agreement and power of attorney the developers started construction of the building as per the building plan duly sanctioned by the authority vide 326/2015, and finally constructed a G+5 storied building in which the complainant intended to purchase a 500 sq ft flat the fifth floor for a total consideration of ₹7,50,000/-.  According to this sale agreement, as is written in Clause-5 in page-9, the Purchaser/Complainant have already paid ₹1,34,000/- by cash out of the total consideration of ₹7,50,000/-.  It was also settled through this sale agreement that the developers would hand over the scheduled mentioned flat to the purchaser within 6 months from the date of sighing this agreement.

            3.         According to the complainant, she has paid a total sum of ₹2,66,000/- on different dates and the OPs have received these amounts by signing on the agreement for sale.  When we go through such receipts we see that a total sum of ₹2,86,000/- has been received from 02/07/2020 till 18/09/2021 and she had already paid ₹1,34,000/- by cash as is written in the sale agreement.  Thus, she has paid a total sum of ₹4,20,000/- to the OP Nos. 1 & 2 but she claimed that she has paid ₹2,66,000/- to the OPs.

            4.         In Clause – 4 of this sale agreement, in page – 9, it was promised that the date of hand over of the flat would be 6 months from the date of signing of the agreement.  In Clause – 6 in page – 10 of this agreement it is written that the Developers agreed and undertook not to make any demand as escalation price.  So, why the OPs, in particular the OP Nos. 1 & 2, have refused to receive further payment from the intending purchaser/complainant is not clear.  As the OPs did not contest the case so, there is no contrary material to counter or rebut the allegations put forward by the complainant.

            All these above noted points clearly tell us that the complainant who intended to purchase a 500 sq ft flat at the fifth floor of the proposed building at the premises at 177/1/1/2, Belilious Road, at present Aswani Kumar Mondal Road, Bantra, Howrah – 711 101, being constructed by the OP Nos. 1 & 2 by executing a notarised Agreement for Sale dated 26/6/2020 for a total consideration of ₹7,50,000/- and she has paid some money, whether it is ₹2,66,000/- or ₹4,20,000/-, out of total consideration.  Afterwards the OP Nos. 1 & 2 refused to take further payment from the complainant, as is alleged, and the OPs failed to hand over the subject flat within the stipulated time, even till filing this complaint, and thereby this case arises.  Another point is to take note that, according to the sale agreement, the owner had sanctioned building plan for G+2 storied building vide sanction No. BR-326/2008-09 which was entended upto 18/04/2015 by the HMC authority.  It is also to be noted that, as is written in Page-6 of this agreement, the developers started the construction with the sanction plan vide 326/2015, whereas the Development Agreement was executed and registered in the year 2018.  This means that the OPs have not collected any sanctioned building plan after the development agreement and we do not know whether the sanctioned plan being no 326/2015 is meant for construction of a G+5 storied building or not.  The owner has a pre-sanctioned plan vide BR-326/2008-09 for a G+2 building.  However, it is a settled principle that this Commission can not go beyond and/or behind any agreement signed between two consenting parties.  We do believe that the OP Nos. 1 & 2 have a valid sanctioned plan for construction of a G+5 storied building where the complainant intended to purchase the 500 sq ft flat at the fifth floor.  So, according to the Consumer Protection Act, 2019 the complainant is a ‘Consumer’ as is defined in Section 2(7) who intended to avail ‘service’, as is defined in section 2(47) of the Act, of the OPs and the OPs are deficient in rendering service to the complainant as promised in the agreement for sale dated 26/6/2020.  The OP No. 3, the owner of the premises at which the complaint intended to purchase her flat, is also deficient in rendering the service as he has given the power to the O.P. nos. 1 & 2 to construct the building and sale the flats to the intending purchasers.  Thus, we come to our opinion that the complainant is entitled to get relief for the deficiency in service of the OPs and the OPs are liable for such deficiency.  We shall direct the OPs to hand over the subject flat to the purchaser/complainant receiving the balance consideration or, as the complainant prayed for, the OPs should refund the amount they received from the purchaser/complainant with interest.  The complainant is also entitled to get compensation together with litigation cost as she has been compelled to file this instant complaint to get her complaint be redressed.

            Hence, it is

ORDERED

            That the complaint Case No. CC/76/2023 be and the same is allowed ex parte against the Opposite Parties.

            1. The Opposite Parties are directed to hand over the scheduled flat to the Complainant after receiving the balance consideration and execute and register the flat in favour of the Complaint at her cost, obeying the agreement for sale dated 26/06/2020

            2.   Alternatively, if the Opposite Parties failed to hand over the scheduled flat then the O.P. nos. 1 & 2 are directed to refund the total amount paid by the Complainant together with 9% simple interest per annum with effect from the last payment till the date of this order.  The O.P. nos. 1 & 2 are also directed to pay ₹20,000/- to the Complainant as compensation.

            3.  The Opposite parties are also directed to pay ₹5,000/- to the Complainant as litigation cost.

            All these directions should be complied by the opposite parties within 45 days from the date of receipt of this order failing which they should pay ₹500/- per day to the Complainant till full and final compliance.

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

Dictated and corrected by me

            Member.