Date of judgment : 23.06.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Rupa Bhattacharjee alleging deficiency in service on the part of the Opposite Parties – (1) Smt. Basanti Bhattacharjee, (2) Sri Ashsoke Bhattacharjee, (3) Sri Keshab Bhattaharjee, (4) Sri Debraj Bhattacharjee, (5) Sri Ashim Bhattacharjee, (6) Smt. Madhushree Dhar, (7) Smt. Santwana Bhattacharjee, (8) Sri Chandan Rakshit and (9) Sri Bhola Chakraborty.

            Case of the Complainant, in brief is that the Complainant entered into a tripartite agreement for sale on 24.10.2010 with the Opposite Party (OP) Nos.1 to 7 being the land-owners in respect of a piece of land at Mouza – Purba Barisha, R.S.-Khatian No.651, Dag Nos.1620/5016, 1620/5017, J.L.No.23, R.S.No.43, Touzi No.1-6, 8-10, 12-16, Pargana – Khaspur, KMC Premises No.196/165, Vidya Sagar Sarani, Mailing address 2, Purbapara Road (Near James Long Sarani crossing), P.O.- Thakurpukur, P.S.-Haridevpur, Kolkata-700 063. Dist.- South 24Parganas and their constituted attorney the OP No.8, who is also developer in respect of the said property by virtue of a Development agreement dt.20.9.2010, executed by and between OP Nos.1-7 and OP No.8, in respect of a flat to be constructed at the ground floor of a proposed multi-storied building at the said premises at a consideration of Rs.13,65,000/-. It is stated by the Complainant that she had paid Rs.1,00,000/- towards earnest money to the OP No.8 who duly acknowledged the same in the said agreement for sale. It is further stated by the Complainant that after lapse of a considerable spell of time she requested the OP Nos.1-8 for completing the construction as well as delivery of possession of the said flat to her but they all turned deaf ear to the request. It is further stated by the Complainant that the land owners revoked the power of attorney and cancelled the Development agreement since the OP No.8 failed to construct the building and subsequently executed another agreement for development with the OP No.9 and the Complainant in presence of OP No.8 requested the OP No.9 to hand over possession of the said flat and register the same in favour of the Complainant after receiving the balance amount of consideration in respect of which the OP No.9 told her that she would have to pay a sum of Rs.36,47,000/- towards the entire amount of consideration. The Complainant further stated that she has informed the entire incident to Haridevpur P.S. by a letter dt.20.8.2016 and thereafter she requested all OPs by letter dt.22.8.2016 through her Ld. Advocate Sri Bhaskar Paul to hand over the said flat after receiving the total consideration amount of Rs.13,65,000/- as per terms of agreement for sale dt.24.10.2010 in respect of which the OP No.9 by a letter dt.26.8.2016 through his Ld. Advocate Sri Siddhartha Shankar Ghosh refused the Complainant’s claim. Having No. other alternative, the Complainant filed this case praying for a direction upon the OPs to handover the aforesaid flat and to execute and register the Deed of Conveyance receiving the balance amount as per terms of the agreement for sale dt.24.10.2010, an award of compensation of Rs.5,00,000/- to be paid by the OP No.1-8, a further award of a sum of Rs.1,00,000/- to be paid by the OP Nos.1-8 and cost for litigation.

            The OP Nos.1-7 contested the case and filed written version denying and disputing all material allegations save and except which are on record starting, inter alia, that as per provision of Clause 12.6 of the Development Agreement executed by and between the OP Nos.1-7 and OP No.8, it is clear that the money collected by the developer from the purchaser/ purchasers shall not in any way fasten the owners with any liability nor shall it create any change upon the said premises or any part thereof and, therefore, by virtue of the said clause of the development agreement no liability may be fixed upon the OP Nos. 1 to 7. Contesting parties adduced evidence on affidavit followed by cross examination by questionnaire and reply thereto.

            Now, the moot point to be decided is that whether the Complainant is entitled to get relief as prayed for.

Decision with reasons

            The Complainant claimed to have entered into a tripartite agreement for sale on 24.10.2010 in respect of a flat at ground floor of a proposed building to be constructed at the piece of land lying and situated at Mouza – Purba Barisha, R.S.-Khatian No.651, Dag Nos.1620/5016, 1620/5017, J.L.No.23, R.S.No.43, Touzi No.1-6, 8-10, 12-16, Pargana – Khaspur, KMC Premises No.196/165, Vidya Sagar Sarani, Mailing address 2, Purbapara Road (Near James Long Sarani crossing), P.O.- Thakurpukur, P.S.-Haridevpur, Kolkata-700 063. Dist.- South 24Parganas at a consideration of Rs.13,65,000/- out of which she had paid Rs.1,00,000/- to the OP No.8.

            The Photostat copy of Agreement for Sale dt.24.10.2010 shows that the Complainant entered into the Sale Agreement and paid Rs.1,00,000/- out of Rs.13,65,000/- as the total amount of consideration at the time of execution of the Agreement for Sale. However, thereafter, the Complainant paid nothing towards consideration.

            It appears from the Clause 12.6 of the Development Agreement dt. 20.09.2010 that no liability would be fastened upon the land-owners in relation of any payment received by the OP. Developer (OP No.8) from any intending purchaser. In the instant case, the Complainant paid an amount of Rs.1,00,000/- to the OP No.8 on or before 24.10.2010. Subsequently, the land-owners revoked the power of attorney and the OP No.8 has nothing to do with delivery of possession or to execute and register the Deed of Conveyance in respect of the flat in question.

            It is further observed that an amount of Rs.1,00,000/- has been deposited with the OP No.8 since long and the Complainant has lost the opportunity to invest such amount to roll the same.

            In such view of the matter, we are of opinion that the OP No.8 is liable to refund the amount of Rs.1,00,000/- along with interest @ 10% p.a. to be calculated on and from 24.10.2010 till realization.

            We are further inclined to hold that the OP No.8 is liable to pay cost of litigation to the Complainant since he did not refund the said amount of Rs.1,00,000/- to the Complainant after being intimated of the revocation of power of attorney by the land-owners and as per our assessment the Complainant is entitled to get Rs.10,000/- towards cost of litigation.

            In the result, the Consumer Complaint succeeds.

            Hence,

ordered

            That the Consumer Complaint being No.CC/426 of 2016 is allowed in part ex-parte against the OP No.8 with cost and dismissed on contest against the OP Nos.1-7 without cost and dismissed ex-parte against the OP No.9 without cost.

            The OP No.8 is directed to refund Rs.1,00,000/- to the Complainant along with interest @ 10% p.a. to be calculated from 24.10.2010 till realization in full and to pay Rs.10,000/- towards cost of the litigation to the Complainant within one month from the date of communication of this order failing which the entire amount shall carry further interest @ 12% p.a. for defaulted period.