JUDGEMENT

          Complainant by filing this complaint has submitted that op nos.1 to 7 are the owners of the premises No.12, Ratanbabu Road, P.S.-Cossipure, Kolkata – 700002 within Kolkata Municipal Corporation, Ward No.1, Assesse No. 110010500151 and total area of the land of the premises is 14 cottah, 7 chottack 31 sq. ft. more or less together with old dilapidated structure thereon and said owners to renovate the said dilapidated structure to construct a new building after removing the said old structure entered into a development agreement with op no.8 for construction of the said project and that joint development agreement was executed on 19.01.2006.  Subsequently sanctioned plan was taken by the op no.2 as developer and construct G+4 building on the said plot of land at her own cost within a period of 24 months on handing over the vacant possession of the said premises by the owners to the developer and after construction of building on the said plot of land, op no.8 will handover two self contained flat measuring 692 sq. ft. and 699 sq. ft. super built area to the owners and the rest of the constructed structure will be sold by the developer to the prospective purchasers to meet the expenses of the said multi-storied building and as per agreement op nos. 1 to 7 executed power of attorney in favour of the op no.8 to act on their behalf to comply and obey the terms and conditions which was duly registered in the office Additional Registrar of Assurances-III, Kolkata on 19.06.2006.

          Thereafter op no.8 invited the prospective purchasers for advancing towards prospective flats on the Schedule A land and the complainant being satisfied with all papers in respect of the property, entered into an agreement on 14.05.2006 with op no. 8 for purchasing a flat measuring 710 sq. ft. on North East Corner of Ground Floor of the building with proportionate land at premises no.12, Ratan Babu Road, P.S. Cossipore and as per agreement to sale total consideration was fixed Rs. 7,10,000/- and complainant paid advance Rs. 3,13,000/- at different stages and money receipts were issued by op no.8 and at the time of payment, complainant was satisfied that sanctioned building plan from KMC being Sanction No. 2008010039 on 30.07.2008 and valid up to 2013.

          Thereafter complainant made enquiries regarding the progress of the construction but ultimately she came to learn and also found that the construction work was stopped.  Thereafter one person named Amiya Biswas informed the complainant but subsequently complainant made call to Amiya Biswas at the said complex area and asked him why the construction work stopped at that time.  Complainant came to know that op no.8 handed over the entire constructional responsibility to the op no.9 M/s Sonali Construction and the said Amiya Biswas identified himself as one of the partners of the said M/s Sonali Construction.

          But truth is that complainant was never intimated of the said flat of transferring the responsibility of op no.8 to op no.9 before it.  Naturally complainant was perplexed and was in total darkness and in the above critical situation a letter was sent to op nos. 8 & 9 on 30.12.2011 and same were received by the said ops but op no.8 remained silent and did not respond.  But op no.9 vide a letter dated 05.01.2012 informed through their Ld. Advocate disputing the correctness of the allegation made by the complainant and in the said reply op no.9 made a false claim that a resolution of all purchasers of the said premises including the complainant dated 02.06.2011 was accepted and op no.9 would return the advance money to the complainant and was ready to pay the first installment after putting a no objection consent.  But the complainant states that he was never invited either to accept advance money after deduction as per resolution dated 02.06.2011 nothing was signed or no consent was given by the complainant.

          In fact op nos. 8 & 9 inconvenience with each other only to provide the complainant to get the flat has cocked up a story and tried to deceive the complainant from his rightful gain of the flat and considering such sort of unfair trade practices and deficient manner of service i.e. negligent and deficient manner of service complainant is compelled to file this complaint for redressal.

          On the other hand op no.9 by filing a written version has admitted that Rebeka Enterprise op no.8 executed development agreement with op no.1 to 7 and as per agreement op started construction and complainant entered into agreement for sale with op no.8 which is fact.  But it is alleged by the op no.9 that op no.8 left the work due to unavoidable circumstances and thereafter op nos. 1 to 7 revoked the power of attorney as executed in favour of the op no.8.  Thereafter op nos. 1 to 7 entered into a new development agreement with op no.9, Sonali Construction and op no.9 is one of the partner with the construction and op no.9 took all liability the company project as per sanctioned plan and took all liability for entering into agreement for sale with the intending purchasers of Rebeka Enterprise.

          Accordingly op no.9 informed all the intending purchasers of Rebeka Enterprise on 02.06.2011 and in a meeting it was agreed that the said intended purchasers shall have take back their money or shall have to purchase the flat as per new agreement with the op no.9 and as per said meeting Sonali Construction op no.9 started to distribute money to the interested purchasers of the flat and further entered into an agreement for sale with someother intended purchasers by executing fresh deed of agreement to sale and in this regard Labyana Seal, Sujit Bhattacherjee and other entered into a fresh agreement with op no.9. 

          It is further submitted that op no.9 through his Ld. Advocate requested the complainant to take back the money as per terms and conditions of resolution dated 07.06.2011 and complainant was aware of the fact but knowing fully well of the matter entered into an agreement and filed this case falsely.  But op No.9 is still creating to settle the dispute as some terms and conditions as executed by other intended purchasers.  But it is pertinent to mention that except complainant, other purchasers already settled the matter with Sonali Construction op no.9.  In the above circumstances, op no.9 has denied all allegations of the complainant and prayed for dismissal of this case.

          After thorough scrutiny of the record, it is found that notices were duly served upon all the ops but except op no.9 none appeared to contest this case and in the above situation the case against other op is heard exparte and we are now entering into final decision of the present consumer dispute.

                                                   Decision with reasons

          On in depth study of the complaint and written version as filed by the op no.9 and also considering the document produced by the op and complainant initially entered into an agreement to purchase a flat out of the present construction and that agreement was executed by and between the complainant and op nos. 1 to 7 and 8 because op no.8 was approached as developer and that agreement was executed on 14.05.2006.

          Truth is that complainant paid Rs. 3,13,000/- already out of total consideration of Rs. 7,10,000/-.  No doubt the receipt was issued by Rebeka Enterprise also proved that Rebeka Enterprise received that amount as developer for self and on behalf of other land owners.  It is also proved that at that time Rebeka Enterprise op no.5 executed agreement for sale being empowered by registered power of attorney executed by op nos. 1 to 7 and that power of attorney was executed on 19.01.2006.  But it is equally true that in the mean time op nos. 1 to 7 cancelled as power of attorney as executed in favour of op no.8 and they entered into further development agreement with op no.9.

          In this case on behalf of the op no.9 it was argued that op no.9 is willing to perform his part performance as per resolution dated 02.06.2011.  But considering the said resolution, it is found that the present complainant was not present.  But op no.9 has tried to say that father of the complainant signed the same but such person on behalf of op cannot be believed and in fact no agreement with the present complainant was at all executed or any proposal of the op no.9 was at all accepted by the complainant.

          But considering the defense of the op no.9 it is clear that op no.9 has admitted that he is still ready to settle the disputes as per terms and conditions as executed with other intending purchasers.  But his condition is that either complainant shall have to take back the deposited advance amount as paid to the op no.8 and/or entered into a fresh agreement with the op no.9 for purchasing that flat at present price.  Then it is clear that op no.9 after taking charge of completion of the said project from op no.8 trying to create a pressure upon the complainant to purchase the flat at higher rate and truth is that the agreement in between the op nos. 1 to 7, no tripartite agreement was executed in between the op nos. 1 to 9.  But a fresh agreement was executed in between the op nos. 1to & 9 passing aside op no.8.

          So, in the above circumstances op no.9 cannot impose any new condition for purchasing the flat and in reality and in the eye of law, op no.9 is bound to discharge his liability along with op nos. 1 to 7 as per agreement previously executed in between the op nos. 1 to 8 which was executed on 14.05.2006.  But after considering the argument of the Ld. Lawyer for the op no.9 and also the materials it is clear that op no.9 has adopted unfair trade practice and he has taken a very bad path to deceive the complainant to get the flat and he is claiming more amount than that of agreed amount as according to op nos. 1 to 8 and for the above reason it is clear that though there is no fresh agreement in between the op nos. 1 to 9 and op no.9 has been creating a pressure to get high rate which is no doubt unfair trade practice and at the same time op nos. 1 to 7 are creating pressure through op no.9 to the complainant for paying more amount. 

          But in the eye of law it is completely illegal and bad in law.  So, considering the above fact it is clear that complainant has proved the allegation and also the negative attitude of op nos. 1 to 9 in discharging their liabilities on the basis of the above agreement dated 14.05.2006.  Fact remains in respect of the said flat having an area of 710 sq. ft. situated at North East Corner of the Second Floor at Ratanbabu Road, P.S.-Cossipore, Kolkata – 700002 as described under Schedule ‘B’ of the agreement for sale dated 14.05.2006 is under attachment of this Forum which is confirmed by the Hon’ble State Commission also in SC Case No. RP/103/2003 dated 12.03.2014 and that order was passed in view of the fact that op no.9 tried to sell the same to some other third persons at a higher rate depriving the complainant.

          So, it is clear that op nos. 1 to 9 took a quireship method and to create the pressure upon the complainant for purchasing the flat at a higher rate against the existing agreement in which op nos. 1 to 7 are also equally liable and considering the above fact and circumstances and materials we are convinced to hold that complainant has proved the negligent and deficient manner of service and also act of adopting unfair trade practice by the ops and it is proved that op no.9 now is trying to throw out the complainant from the scene to sell the flat at higher rate.

In view of the above fact and circumstances the complaint succeeds.

Hence, it is

                                                     ORDERED

That the complaint be and the same is allowed on contest against op no.9 with cost of Rs.10,000/- and same is allowed exparte against op nos. 1 to 8 with cost of 10,000/-.

Op nos. 1 to 8 and particularly op no.9 are hereby directed to hand over possession of the flat as per Schedule ‘B’ of the agreement and as per Schedule of the complaint, ops shall have to hand over a flat along with completion certificate from the Kolkata Municipal Corporation to the complainant and to execute and register the deed of sale in favour of the complainant at the cost of op no.9 within 45 days from the date of this order failing which for each month delay, op nos. 1 to 9 shall have to pay jointly and severally a sum of Rs. 25,000/- per month as punitive damages till delivery of the said flat in favour of the complainant along with executed and finally register the deed of sale and this punitive damages is passed as per final order of Hon’ble National Commission passed in R.P. No. 4385/2012 passed on 29.05.2013 in connection with in Reference Case (Swapan Kr. Ghosh and another – Vs – Anjali Ghosh & 6 Ors. and that order was passed against the order dated 24.07.2012 in Appeal No. 312/2011 passed in State Commission, West Bengal).

Further causing mental pain and agony and also for losing huge interest since 2006 over the said amount of Rs.3,10,000/-, op nos. 1 to 9 jointly and severally particularly op no.9 shall have to pay compensation to the extent of Rs.1,00,000/- within 45 days otherwise it will carry interest @ 9% p.a..

The entire order shall be carried out by the op no.9 particularly and/or all the ops jointly and severally within 45 days from the date of this order failing which penal interest shall also be imposed.

Considering the unfair trade practice adopting by op no.9 and for deceiving the rightful purchaser in respect of the flat, op no.9 is imposed a penalty of Rs. 1,00,000/- for adopting unfair trade practice and to control the same this penalty has been imposed as damages and it shall be deposited to this Forum within 45 days.

Ops jointly and severally are hereby directed to comply the order and particularly op no.9 shall have to comply the same within the specified time in default penal action shall be started for which further penalty and fine shall be imposed.