Hon’ble Mr. Ajeya Matilal, Presiding Member

          This is an application u/s 17 of the C.P. Act, 1986.

          The fact of the case is in short like that the complainant came to know that the proposed building mentioned in schedule A of the complaint was going to be constructed by one Durga Pada Bhattacharjee, proprietor MANJURI, he approached him for purchasing the B schedule flat along with one car parking space in the new Building to be constructed in Mouza Tetul Beria appertaining to R.S. Daag no. 865, L.R. daag no. 825 under Khatian No. 41, Touzi No. 271, J.L no. 44 under Rajpur, Sonarpur Municipality Ward No. 5, P.S. Sonarpur, Dist South 24 Pgs. The OP no. 4 was the sole and absolute owner of A schedule land. The landowner intending to develop the said land for construction a building thereon comprising of several self contained flats engaged the said Durga Pada Bhattacharjee. The said Durga Pada Bhattacharjee expired and the present OP no. 1, 2 & 3 are his legal heirs. The land owner exected a registered general power of attorney in favour of the said Durga Pada Bhattacharjee on 05.06.2014 which was registered in the office of A.D.S.R south 24 Pgs and duly recorded in book no. 1, CD Vol 11 page from 2788 to 2798 bearing serial no. 05587 for the year 2014. The development agreement dt. 05.06.2014 and the General Power of Attorney dt. 05.06.2014 are annexed as A and A1 respectively. On 24.12.2014 an agreement for sale was executed between the developer and the purchaser being the present complainant for purchasing the B schedule flat measuring about 800 sq. ft and one car parking space in the ground floor on the proposed new building. As per agreement for sale total consideration was Rs. 18,30,000/- including the price of flat and the car parking space. As per the aforesaid agreement for  sale the developer shall handover the possession of the flat in question within 15 months from the date of agreement for sale. In this context the complainant paid Rs. 10,00,000/- to the developer  on the date of execution of agreement for sale and the balance amount of Rs. 8,30,000/- would be payment on the date of registration of the deed of conveyance. The copy of agreement for sale dt. 24.12.2014 is enclosed as annexure B and the money receipts in this context are enclosed in annexure B1 series. But the developer could not complete the construction of the flat concerned and deliver the possession of the same. So the complainant served 4 legal notices dt. 29.08.2016, 04.10.2016, 16.02.2018 and 26.02.2018.

The cause of action of the case arose on 24.12.2014 and subsequently on the dates of sending notices to the developers. So, the complainant filed the instant case with a prayer for direction upon the OPs to deliver the flat in habitable condition and also prayed for execution and registration of the deed of conveyance. Alternatively, the complainant prayed for refund of the amount advanced by the complainant along with compensation and litigation cost. The Ld. Advocate for the complainant prayed for allowing the alternative prayer.

The owner has given consent to the developer for transferring the property in question.

The OP nos. 1, 2 & 3 initially contested the case by filing W.V. But they did not adduce any evidence.  The complainant adduced evidence on affidavit in support of his case. The OP nos. 1 to 3 filed questionnaires and the complainant also gave replies to those questionnaires.

The complainant adduced some documentary evidence. The development agreement and Power of Attorney are A and A1. The agreement for sale dt. 24.12.2014  is enclosed as annexure B. The money receipts are enclosed as annexure B1 series in the running page 64. The notices sent are enclosed in annexure C, D, E & F.

It appears that within the stipulated period the OPs failed to deliver the possession of the flat in question. So as part of the consideration money has been paid, the complainant is a consumer and there is also deficiency in service on the part of the OPs.

Although the landowner was not a confirming party but he is in the category of the OP no. 4 in connection with this case. In support of her contention, the Ld. Advocate for the complainant referred to a decision of this Bench dt. 06.06.2018  in FA no. A/126/2015 wherein it was observed “Whatever dispute be there between landowners and the developer, the same can be settled in an independent proceeding. As per agreement, the landowners had given consent to the developer to transfer the property falling to its share. Therefore, the rights of a bonafide purchaser cannot be defeated only on the ground that the landowners were not a party to the Agreement for Sale executed between the developer and the buyer.”

So, the complainant is entitled to relief as prayed for.

Accordingly, CC/258/2018 is allowed ex parte against the OPs with litigation cost of Rs. 10,000/-. The OP nos. 1, 2, 3 & 4 are directed to refund Rs. 10,00,000/- to the complainant along with compensation @ 10% p.a. from the date of payments within 3 months from the date of this order, failing which the complainant will  be at liberty to put the order into execution.

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