Dt. of filing- 22/01/2019

Dt. of Judgement- 16/07/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is filed by the complainant namely Shri Kaushik Chakraborty  under Section 12 of  the Consumer Protection Act against the  Opposite Parties   namely Shri Amit Sapui and Smt. Labanya Dey alleging deficiency  in service on their part.

          Case of the complainant in short is that  OP No.2  being the sole owner of the land  measuring  an area 1 cottaha  4 chittaks and 33 sq.ft  being the part  or portion of  SP No.40, C.S. Plot No. 356(P), 357(P) of Mouza – Roypur also known as  Premises No. 18, Khanpur Sahidnagar Colony,  entered into  an agreement  on 13.07.2015 with OP No.1 for development  of the said land by raising  multi-storied  building. OP No.2  also executed and registered  General Power of Attorney  on 09.07.2015 in favour of OP No.1. Thereafter,  OP No.1  by an Agreement  for Sale  dated 18.06.2017 agreed to sell  one  1 BHK flat described in the schedule at a consideration  price  of Rs.1,600/- per sq.ft. i.e. total consideration price  of Rs. 5,60,000/-. Complainant paid  Rs.60,000/- in total  as Earnest Money. It is specifically agreed in the said agreement dated 18.06.2017 that the balance amount of consideration shall be paid by the  complainant to the developer/ OP No.1 within the period of five years as per mutual understanding   of the parties. As per the terms of the agreement, possession of the flat would be delivered within 10.11.2017 upon receipt of Rs. 50,000/- only and the Deed of Conveyance will be executed in respect of the said flat upon  receiving the balance amount of consideration. But the OP No.1  have avoided  to deliver  the possession of the flat on one or other pretext. Complainant on several occasions including by letter  dated 19.09.2018  ask for delivery of   possession. But OP did not pay any heed. So, the present complaint has been filed praying  for directing  the OPs to deliver the  possession of the subject flat to the  complainant  in terms of the Agreement  for Sale dated 18.06.2017, to pay the compensation  of Rs. 1,50,000/-  and litigation cost of Rs. 20,000/-.

          Complainant has  annexed with the complaint petition, copy of the development agreement dated 13.07.2015 entered into between the OP No.1 and OP No.2, copy of agreement for sale entered into between the parties on 18.06.2017 and a copy of the letter dated 24.12.2018 sent by the Consumer Grievance Cell to the complainant.

          On perusal of the record it appears that   inspite of service of notice, OPs did not take any step, so vide letter dated 19.03.2019, the case came up for exparte hearing.

          So, only point requires determination is :-

          Whether the complainant is entitled to the relief as prayed for?

Decision with reasons

          In order to substantiate his claim that the development agreement was entered into between the OP No.2  the owner and OP No.1  the developer on 13.07.2015, complainant  has filed the copy of the said agreement. It appears  that consequent  to the said development agreement, OP No.1  entered into an agreement to sell  the flat as described in the  schedule, to the complainant by an Agreement for Sale dated 18.06.2017 at a consideration price  of Rs. 1,600/- only per square feet. According to the  complainant,  he has paid Rs.60,000/- which is  substantiated from the Memo of Consideration in the agreement for sale dated 18.06.2017 wherein OP No.1 who also acted  as Constituted Attorney  of OP No.2, acknowledged to  have  received Rs.60,000/-  till the date of execution  of agreement from the  complainant.

          In this case, complainant has only prayed for direction upon the OPs for delivery of possession of the flat and not for execution and registration of deed, which appears to be due to the  terms and conditions appearing in the agreement for sale  entered  between the complainant and the OP No.1 on 18.06.2017 The relevant recital of the said agreement is as follows:

          “ That on execution of this Agreement for Sale the purchaser  has paid an amount of Rs. 50,000/- only to the developer/Confirming Party  out of total consideration  ( yet to be  calculated  after final measurement  which will be taken place  after completing the  construction  of the said flat ) as an earnest money and the balance amount  shall be paid by the purchaser to the developer/Confirming Party within  five years as per mutual understanding of both the parties ”. It is further stated in the said agreement that  “ It is  also agreed  that the developer  shall deliver peaceful vacant possession  of the said flat in favour of  the purchaser upon completion of construction of the said flat within 10.11.2017   and at the same time final measurement  of the flat  will be completed  by both the parties  to assess  the total consideration  value.  On the  date of possession, both the parties  shall enter into  a supplementary agreement   to determine the exact  measurement and total consideration  of the flat ”.

          So, as per the terms  of the agreement as referred to above  possession  was to be delivered  within November, 2017 and at that  time  the final measurement   of the flat was to be assessed to determine the total consideration value. However, complainant has to pay Rs. 50,000/-  to OP No.1 at the time of delivery of possession as per the said agreement.

          Apparently, possession has not been delivered to the complainant. So,  as  per the  terms  of the agreement, complainant  is entitled to the possession  of the flat subject to payment of further amount of Rs.50,000/- . It is already highlighted above that this case has been heard exparte and so there is absolutely no material to counter or rebut the claim of the complainant. However,  in  the  given facts and situation  of this case, as major amount  towards   the consideration is yet to be paid  by the complainant, due to the terms of the agreement, we do not  intend to pass any order as to compensation  as prayed.

Hence,

                                           Ordered

          CC/41/2019 is allowed exparte. Opposite Parties  are directed to deliver the possession  of the flat  as agreed in terms of the  Agreement for Sale dated 18.06.2017 within  three months from the date of this order subject to payment of Rs.50,000/- by the complainant to OP No.1. Opposite Parties are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of three months.