Date of hearing : 14th Day of September, 2015.
Date of judgment : Monday, the 28th day of September, 2015.
JUDGMENT
The instant appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the behest of O.P. No.1 to impeach the judgment/final order dated 24th December, 2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas at Barasat (in short, DCDRF) in consumer complaint No. 306 of 2013.
The respondent No.1 herein being the complainant initiated the complaint u/s 12 of the Act alleging that O.P. Nos. 2 to 4 being land owners have entered into an agreement with O.P. No.1/Developer on 25.4.2005 for development of a multi-storied building on a land measuring an area of 1 cottah 14 chittak 22 sq. ft. lying and situated at Mouza : Bagjola, South Dum Dum, Dist. North 24-Parganas. On the date of execution of such agreement O.P. Nos. 2 to 4 also executed a General Power of Attorney in favour of O.P. No.1. On 1.3.2007 the O.P. No. 1 obtained a sanctioned building plan from South Dum Dum Municipality for the purpose of constructing a multi-storied building in ‘A’ schedule property. On 23.3.2007 the O.P. No.1 had entered into an agreement with the complainant for selling out a self-contained flat measuring about 780 sq. ft. and a garage of 220 sq. ft. within “A’ schedule property at a consideration amount of Rs.9,50,000/- . The complainant on diverse dates has paid total amount of Rs.3,70,000/- including the amount of Rs.50,000/- paid by her on the date of agreement. It was stipulated that the flat will be delivered within 18 months from the date of agreement but since O.P. No.1/Developer could not construct the building, being frustrated the complainant sought for possession of the flat or in default to pay back the earnest money of Rs.3,70,000/- as paid by her. But since the O.P. No.1 has complied with the same the instant consumer complaint has been filed.
The O.P. Nos. 1 and 5 i.e., the developer and the son of Developer by jointly filing a written version has submitted that O.P. No.2 to 4 initially gave Power of Attorney but on account of death of one land-owner being O.P. No.2 the legal heirs of the deceased land owner refused to execute fresh Power of Attorney and as such they were prevented from further construction work and unable to proceed further.
Upon hearing Ld. Advocates for the respective parties and relying upon the materials placed before it, the Ld. DCDRF allowed the complaint with a direction upo O.P. No.1 to return the sum of Rs.3,70,000/- as paid by her and also directed to pay compensation of Rs.6,00,000/- for his failure to deliver the flat and execute and register the same in favour of the complainant. Being aggrieved and dissatisfied with the said order, the instant appeal has been preferred.
Now, the point arises for consideration in this appeal as to whether the Ld. DCDRF was justified in passing the order impugned in spite of absence of O.P. No.2 or his legal heirs in the proceeding.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it emerges that the O.P. Nos.2 to 4 being land owners had entered into an agreement for development of a piece of land measuring about 1 cottah 14 chittak 22 sq. ft. lying and situated at premises No.280, Dum Dum-Cossipore Road, Kolkata-700030. At the time of execution of the said development agreement O.P. Nos. 2 to 4 have also executed a General Power of Attorney in favour of O.P. No.1 empowering him to enter into agreement for sale with the intending purchasers and to do other work. According, the opposite party No.1 obtained a sanctioned building plan from the South Dum Dum Municipality on 01.03.2007 to construct a multi-storied building in the said property which has been described as Schedule ‘A’ Property in the petition of complaint. On 23.03.2007 the Developer had entered into an agreement for sale with the purchaser (complainant) in respect of a self-contained flat measuring about 780 sq. ft. on the 3rd floor of the ‘A’ schedule property at a consideration amount of Rs.9,50,000/-. On the date of the agreement an earnest money of Rs.50,000/- and subsequently on diverse dates the complainant had paid Rs.3,20,000/- aggregating total amount of Rs.3,70,000/- .
Now, the O.P. No.1/Developer was under obligation to complete the construction of the flat within 18 months from the date of execution of the agreement. In accordance with the said terms of agreement the Developer could not construct the building and the development work in the said building had been stalled. In such a situation the claim of the complainant for refund of Rs.3,70,000/- appears to be reasonable and justified. No doubt, in absence of O.P. No.2 or his legal heirs, it was quite difficult on the part of the O.P. No.1 being Developer, to execute any Deed of Conveyance in favour of the complainant but when the Ld. DCDRF did not pass any such order, rather passed an order directing the O.P. No.1 to refund the money it would not cause any prejudice to either of the parties. In other words a simple direction was given to O.P. No.1 (Developer) to return the amount of Rs.3,70,000/- which has been received by them. In that perspective, Ld. DCDRF was quite justified in passing the order impugned by directing the O.P. to return the amount of Rs.3,70,000/- .
However, the amount of compensation of Rs.6,00,000/- imposed by the Ld. DCDRF on the part of failure of O.P. No.1 to deliver, execute and register the Deed of Conveyance in favour of complainant appears to us excessive. It is true that complainant has made payment of Rs.50,000/- on 23.3.2007, Rs.1,00,000/- on 3.7.2007, Rs.70,000/- and finally Rs.1,50,000/- on 29.4.2008. It is equally true that complainant suffered a huge loss in both ways viz. – (a) the rate of residential flats has been increasing substantially like sky rocketing and (b) had the amount already paid by the complainant to O.P. No.1 been kept in any Term Deposit Scheme in any Nationalised Bank it would fetch substantial interest therefrom. Therefore, considering all the aspects of the matter, though we share the view of the Ld. DCDRF that the complainant is entitled to get compensation for harassment and mental agony, yet we cannot overlook the fact that Developer could not proceed further to construct the building owing to apathy on the part of legal heirs of O.P. No.2 to execute the Power of Attorney in favour of O.P. No.1/Developer. Accordingly, we think that under the facts and circumstances, a compensation of Rs.3,00,000/- in place of 6,00,000/- will meet the ends of justice.
In view of the above, we are constrained to interfere with the order impugned so far as the amount of payment of compensation is considered.
For the reasons aforesaid, appeal is allowed on contest in part with a modification of the order to the extent that the complainant would get Rs.3,00,000/- as compensation.
The judgment/final order dated 24.12.2013 passed by Ld. District Consumer Disputes Redressal Forum, North 24-Parganas at Barasat in consumer complainant No.306 of 2013 is hereby modified to the extent indicated hereinabove.
