JUDGEMENT
Complainant by filing this complaint has submitted that complainants were in need of a flat for dwelling purpose and for which they hired the service of the developer/op nos.2 & 3 for selling such flat who expressed their desire to sell the same flat and accordingly op nos.1, 2 & 3 entered into a memorandum of agreement on 31.05.2009 with complainants for purchase of the newely constructed flat at the ground floor for a consideration of Rs. 4,50,000/- in the premises No. 150D, Kalicharan Ghosh Road, Kolkata – 700050 with estimated covered area of 450 sq. ft. free from all encumbrances from the land and as per agreement possession shall be delivered after lapse of 6 months for a total consideration money of Rs. 4,50,000/-. Accordingly complainant paid Rs. 1,00,000/- at the time of execution of the agreement and thereafter paid Rs. 2,25,000/- vide money receipt dated 01.07.2009 issued by the op no.2 with his seal and signature. But inspite of such payment of 50percent of the total consideration amount to the developer, op did not finish the construction of the said flat as yet and has not completed the flat of the complainant for which op/developer was requested for early finishing of the flat with such agreement. But with false excuse on the ground of showing some problems with the land owners op did not comply the same and in fact for that reason complainants are staying at their residential house on payment of rent of Rs.3,500/- with electric charge and at the same time finding no other alternative, complainants issued letter dated 12.04.2010 to the op/developer registered on 17.04.2010 asking the op on which date he shall have to get the lawful possession of flat along with a completion certificate. But in spite of repeated representations and persuasions op did not bother to complete the flat and did not take any steps to hand over the flat to the complainant and in the above circumstances, complainants have prayed for relief. But it is admitted by the complainants that complainants already received back Rs. 40,000/- on 22.08.2011 and 08.05.2011 but said amount was paid under provision of para 5 of page no. 7 of the Agreement. But it was not a refund and in fact as per provision of para-5 of page-7 of Agreement, op is bound to pay 10percent p.a. over the total amount as paid and especially the non-fulfillment of the provision but they did not refund at all and in the result complainant prays for relief and redressal for adopting unfair trade practice by the op and also for negligent and deficient manner of service on the part of the ops.
On the other hand op no.2 by filing written statement submitted that the allegations are false and fabricated. But it is admitted by the op in para nos. 9 and 10 of this written version the op states that it is clearly stated in development agreement dated 31.05.2009 in para-5 of the Development Agreement that the developer will deliver the possession of the flat to the purchasers within 6 months from the date of execution of date of agreement after receiving the full payment of the consideration as made as per schedule-iii and the developer is also liable to pay interest for any delay of handing over the possession of the said flat at the rate of Rs. 10percent p.a. on the paid up value till handing over the date of the possession of the said flat to the complainants. It is further submitted that Advocate of the complainant Mrs. Mita Sengupta served a letter dated 08.11.2011 to return the paid up money i.e. a sum of Rs. 1,85,000/-only and as such their demand of Rs. 15,00,000/- does not arise at all and complainants are agreed to take the balance amount a sum of Rs. 1,85,000/- and complainants are greedy to earn the huge money for which this false complaint is made by the complainants and truth is that op already paid Rs. 40,000/- out of the total consideration amount as complainant was not interested to purchase the said garage and it was not a flat and balance amount shall be paid by the op after selling of the garage to 3rd party and then he would return the said balance amount and after 3 months op requested the complainants to receive Rs. 50,000/- but the complainants did not accept the said money.
Moreover it is submitted by the op that complainants were aware of the fact that there was no power of attorney as it was executed by the land owners. At the same time the land owners also filed cases before Consumer Disputes Redressal Forum and for which the present complaint is not maintainable and the case should be dismissed.
Decision with reasons
In the present case after studying the complaint and the written version, it is found that op no.2 no doubt has admitted that there is an existence of an agreement of sale dated 31.05.2009 executed by the ops and the complainant. Considering the said Memorandum of Agreement dated 31.05.2009 it is clear that on the basis of that agreement op received Rs. 2,25,000/- out of the total consideration of Rs. 4,25,000/- and as per agreement op agreed to sell the flat situated on the ground floor of the proposed building having super built up area about 440 sq. ft. along with two bed rooms, one kitchen, verandah situated in the premises No. 150D, Kalicharan Ghosh Road, Kolkata – 700050 but there is no agreement to sale of any garage to the complainant by the op. So the defense of the op in this regard that op intended to sell a garage and complainants agreed to purchase it on the basis of agreement is proved a false story and such sort of defence as taken by the op tantamount to unfair trade practice. Now we shall have to consider whether the complainant agreed to get refund of the entire amount? In this regard we have gone through the agreement to sale dated 31.05.2009 wherefrom it is found that op was bound to hand over the said flat to the complainant after 6 months from the date of execution of the said agreement to sale. So on calculation of the said date, it is clear that op is bound to handover the flat to the complainant positively by 30.11.2009. But op has admitted that the flat has not been completed and he has failed to give any such flat and it is admitted by the op that as per said agreement developer/op is bound to give 10percent interest p.a. on the paid up value till handover the flat to the purchasers after completion of 6 months from the date of execution of the agreement. So, considering that fact it is clear that op failed to give and hand over the possession of the flat on the end of 30.11.2009 for which he paid 14percent of the paid up value of Rs. 2,25,000/- which has been paid by the complainant to the op/developer. But it was not refund. Truth is that op has tried to say that he has no power of attorney but that is also false in view of the fact from the record it is found that power of attorney was given to the complainant by the land owners that is special power of attorney on 14.09.2006 and that has not been cancelled by the land owners as yet.
But fact remains that the said power of attorney is not registered one that is another thing but power of attorney is within the custody of the op/developer and op nos. 2 & 3 having no power of attorney executed the agreement. But admitted position is that as per development agreement amongst the ops, it is clear that on the ground floor from the flats and out of the total flats on ground floor allocations shall be made to the owners in respect of 1350 sq. ft. So, it is clear that ground floor is not a garage. Moreover op has not proved it by producing any evidence that there is no flat on the ground floor.
So, considering all the above fact and circumstances, it is clear that the defence of the op that on the ground floor there is no flat is completely false and fabricated and such a defence as taken by the developer is treated as false defence and such a defence as taken by the ops/developer no 2 & 3 is only for the purpose to deceive the complainant so that complainant cannot take the flat and at the same time it is also proved in the meantime that the market price has been increased. This agreement was executed on 31.05.2009, so op/developers are not willing to handover the flat only on the ground floor as he wants to sell it at a higher rate by deceiving the complainant and it is no doubt an unfair trade practice on the part of the op nos. 2 & 3.
Considering all the above fact including other matter also and the intention of the complainant we have gathered that anyhow several complications have already been copped up amongst land owners and the developer and truth is that landowners have also filed cases before the State Commission and same are pending and in such a situation and also considering the present complainants’ position we are allowing the relief to the complainant by directing the op nos. 2 & 3 to refund the entire amount of Rs. 2,25,000/- which has been accepted by the ops as advanced out of total consideration of Rs. 4,50,000/- and same shall be paid to the complainant along with 8percent interest p.a. over the said amount since the date of receiving the said amount from the complainant and till its full payment by the op to the complainant and further complainant is entitled to get such amount for harassment for causing mental pain and agony and also for losing the chance to get a flat and also for their financial loss because with such fund they shall not have to get a single room flat also in the present market.
Accordingly, the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the op nos. 2 & 3 and same is allowed exparte against the op no.1 but without any cost.
Op nos. 2 & 3 are hereby directed to refund the entire amount of Rs. 2,25,000/- to the complainant and also 8percent interest p.a. over the said amount since 01.07.2009 and till its full payment.
For causing harassment and mental pain and agony to the complainant and also for deceiving the complainant to get the flat in such a manner and further for investment of the said amount of Rs. 2,25,000/- by the op nos. 2 & 3 in the business and for getting such profit ops shall have to pay compensation of Rs. 25,000/- to the complainant.
For adopting unfair trade practice and deceiving the complainant in such a manner, op nos. 2 & 3 shall have to pay punitive damages to the extent of Rs. 25,000/- to this Forum and it is imposed for adopting unfair trade practice and for deceiving the complainant in such a manner and to check up such practice by the op nos. 2 & 3 this order is passed and if it is collected same shall be deposited to this Forum by the op nos. 2 & 3.
Op nos. 2 & 3 are hereby directed to comply the order very strictly within one month from the date of this order failing which for non compliance and disobeyance of Forum’s order penal proceeding u/s 27 of C.P. Act 1986 shall be started for which op shall be imposed further penaty and for non compliance of the order op nos. 2 & 3 shall have to pay penal interest at the rate of Rs. 200/- per day till its full satisfaction of the decree if it is collected same shall be deposited to this Forum.
