Dt. of filing- 30/10/2018
Dt. of Judgement- 07/11/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by the complainant namely Surajit Khatai under Section 12 of the Consumer Protection Act, 1986 against Opposite Parties namely Syed Md. Arshed Ali and Amit Saha alleging deficiency in services on their part.
Case of the complainant in short is that OP No.2 being the owner and OP No.1 the developer entered into a development agreement on 12.09.2016 for development of the property described in the schedule of the said agreement and accordingly a Power of Attorney was executed by OP No.2 in favour of OP No.1. Complainant consequently with an intention to purchase a flat measuring an area of 450 sq.ft. entered into an agreement with the developer dated 20.01.2017 to purchase the flat at a total consideration of Rs. 15,75,000/- ( Rs.3,500/- per sq. ft.) Out of the said total consideration of Rs.15,75,000/-, Rs. 4,00,000/- has already been paid by the complainant to the developer. It was agreed that the complainant shall be delivered the flat within 18 months from the date of agreement. But inspite of the payment of the consideration amount of Rs.4,00,000/-, it has been noticed that the structures have not been completed so the complainant has neither been delivered the possession of the flat nor has been refunded the amount paid by him. A notice was sent by the complainant through his Ld. Advocate dated 27.09.2018 but the Ops paid no heed. Thus the present complaint has been filed by the complainant praying for directing the OPs to deliver the possession on receiving balance consideration price, to pay compensation of Rs.1,00,000/-, in alternatively to refund the consideration amount already paid by the complainant and the litigation cost of Rs. 10,000/-.
Complainant has annexed with complaint petition, Copy of the development agreement entered into between the OPs , copy of the Power of Attorney executed in favour of OP No.1 by OP No.2, the copy of the agreement for sale dated 20.01.2017 entered into between the parties and copy of the notice sent by the complainant through his Ld. Advocate to the OPs on 27.09.2018.
OP No.1 has contested the case by filing the written version admitting that the agreement was entered into between him and the OP No.2 to develop the property and further admitting agreement for sale entered between him and the complainant. However, it is contended by him that as he was not handed over full possession of the property for construction he could not complete the construction and thus could not deliver the possession. But he is willing to deliver the possession if the full possession of the property is given to him by the OP No.2.
OP No.2 inspite of the service of notice did not take any step and so the case proceeded exparte against OP No.2.
During the course of the trial, complainant filed a petition stating to treat the complaint petition as evidence. OP no.1 did not file any questionnaire and thus ultimately argument has been heard. Complainant has also filed Brief Notes of Argument and OP No.1 has also filed the Brief Notes of Argument.
So, the point require determination is :
- Whether there has been any deficiency in service on the part of the OP No.2 ?
- Whether the complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion. Complainant has claimed that he agreed to purchase a flat by an agreement for sale dated 20.01.2017and has paid an amount of Rs. 4,00,000/- out of the consideration of R. 15,75,000/-. But he has not been delivered the possession of the flat. In support of his said claim, the agreement for sale dated 20.01.2017 has been filed and also a copy of development agreement entered into between the OPs dated 12.01.2016 has been filed. Complainant has also filed copy of the Power of Attorney wherefrom it appears that OP No.2 executed the said Power of Attorney in favour of OP No.1, consequent to the development agreement.
So far as the claim of the complainant about agreeing to purchase a flat as described in the schedule of the agreement dated 20.01.2017 and that he paid Rs. 4,00,000/- to the developer has not been disputed and denied by OP No.1. Admittedly, possession of the flat has not been handed over to the complainant. It is admitted by the OP No.1 in the written version that he has not completed the construction of the building because he was not handed over the full possession of the property for construction. As per terms and conditions of the agreement dated 20.01.2017, OPs were liable to handover the possession of the flat to the complainant within 18 months from the date of agreement which admittedly has not been done. According to the complainant he has always been ready and willing to pay the balance consideration price. So, on consideration of the documents filed by the complainant and considering the admission by OP No.1 in the written version, complainant is entitled to the possession of the flat and for execution of the sale deed as per agreement dated 20.01.2017 on payment of the balance consideration price or in alternatively he is entitled to refund of the amount paid by him to the OP No.1 along with interest in the form of compensation.
Hence,
Ordered
CC/614/2018 is allowed on contest against Opposite Party No.1 and exparte against Opposite Party No.2. Opposite Parties are directed to deliver the possession of the flat as per agreement dated 20.01.2017 and to execute the deed of conveyance within three months from this date on payment of balance consideration price by the complainant. In alternatively, Opposite Party No.1 is directed to refund Rs. 4,00,000/- paid by the complainant within the aforesaid period of three months along with interest @18% p.a. from the date of last payment i.e. 12.12.2017 to till this date within the aforesaid period of three months in default sum shall carry interest @12% p.a. till realisation. Opposite Parties are further directed to pay Rs. 12,000/- as litigation cost within the aforesaid period of three months.
