Date of filing: 01/08/2019

Date of Judgement: 25/08/2023

Ashoka Guha Roy Bera, Hon’ble Member

The case revolves round on an issue of non delivery of possession and non registration of a flat as promised by an agreement dated 24/08/2017 by the OP developer in favour of the complainants herein abovementioned.

The brief fact of the case is that the complainants are the purchaser of Flat on the first floor ( 680 sq. ft. super built up area) at premises NO. 384, Jaigir Ghat Road, Kolkata – 700 063, P.S. –Thakurpukur, Ward No. 125 of the Kolkata Municipal Corporation, District 24 Parganas (South), together with all other common rights, over the common spaces, easement, quasi easement, benefits and facilities attached to the said flat as well as building at a total consideration money Rs. 13,25,000/- by an agreement dated 24/08/2017 the complainants namely Preeti Kumari Singh and Sri Rupesh Kumar Singh being the purchasers of the second part Sri Goutam Dhar, Vendor of the first part who was being represented by their lawful attorney by Sri Santunu Bhaduri and the developer Sri Santunu Bhaduri of the third party wherein the opposite party agreed to sell the said flat to the complainant within a period of three months from the date of agreement.  

That the complainants paid a total sum of Rs. 13,00,000/- to the opposite parties. The complainants paid Rs. 8,00,000/- up to the date of execution of agreement for sale dated 24^th day of August, 2017 and the remaining of Rs. 5,00,000/- have been paid in installment dated 05.12.2017, 27.02.2018 and 31.01.2018. The money receipts in respect thereof have duly been acknowledged by the OP developer Sri Santunu Bhaduri. The remaining consideration price of Rs. 25,000/- was required to be paid at the time of execution of the deed and handing over possession of the schedule flat. But the opposite parties turned a deaf ear to the request of the complainants till date they have neither delivered the possession of the schedule flat nor registered the deed of conveyance of the schedule flat. So finding no other alternative the complainant lodged a complaint against the opposite parties with the Thakurpukur Police Station. Thereafter the complainants issued a demand notice on 26.06.2019 to the said developer namely Sri Santunu Bhadury for execution and registration of the deed of conveyance. But that also yielded no fruitful result. Accordingly the complainants were compelled to file the instant case praying for relief or reliefs mentioned in the complaint and handing over of possession of the flat to them. Failing which a direction upon the OPs to pay the total consideration of Rs. 13,00,000/- together with interest @ 10% from 28.02.2018 till realization and to pay Rs. 80,000/- as compensation and further litigation cost of Rs. 50,000/- .

After admission of the instant complaint this commission ordered to issue notices upon all the three opposite parties. But in spite of receiving notice though several opportunities were given the opposite parties never contested the case by filing written version. Eventually vide order dated 17/03/2021 the case proceeded exparte against all the three OPs. On 09/02/2022 complainants filed their affidavit in chief.

In support of their case the complainants have filed the following documents along with the complaint petition.

1. Agreement for sale dated 24/08/2017 duly signed and executed by the parties.
2. Original receipts showing payment of Rs. 13,00,000/- duly acknowledged by the OPs.
3. FIR lodged with the Thakurpukur P.S.
4. Demand Notice dated 26/06/2019.  

Points for determination:

Whether the complainants are entitled to any relief in this case?

                                                                                          FINDINGS

On perusing the material on record it is found complainants produced a copy of notarized agreement for sale dated 24/08/2017 and the receipt of the payment amounting to Rs. 13,00,000/- duly acknowledged by the opposite party No. 2 / developer. Advocate’s letter and FIR lodged with the Thakurpukur P.S.  

On perusal of the agreement dated 24^th August, 2017 it appears that the said agreement for sale was duly executed by the venders / owner who were duly represented by Sri Santunu Bhaduri who is the developer in one part and purchasers being 2^nd part and the said Santunu Bhaduri being the 3^rd part / developer in respect of the flat in question. The complainant agreed to purchase one flat along with garage one of Developer’s allocations – 680 sq. ft. for a total consideration of Rs. 13,25,000/-. It was specifically mentioned in clause 6 at page 7 of sale agreement that flat under this agreement will be completed within 3 months from date of this agreement.

Further in clause 7 & 12 it is mentioned that the developer shall deliver peaceful possession of the said flat in useable condition by a possession letter duly signed by the developer upon making full payment and the developer shall execute and register the deed of conveyance relating to the flat hereby agreed to be conveyed in favour of the purchaser.

Contractual damages are usually awarded to compensate an injured party for a breach of contact for the loss of his or her bargain. The general principle for the assessment of damages is compensatory. This rule is more qualified when it comes to the real estate sector. If the seller wants to limit their liability for breach of contract, they have to portray that they have performed their obligation in a prudent manner. It may be noted that onus is on the seller to show his best efforts and bonafide in discharging the obligation.  Even in the absence of fraud, mere unwillingness to carry out duty could constitute bad faith sufficient for the home buyers to claim damages.

Moreover, in a plethora of decision it has been observed by the Hon’ble Supreme Court that a home buyer cannot be made to wait for an indefinite period for delay in possession. In the instant case there is an inordinate delay in handing over the possession of flat by the OP developer. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence the complainants in the present case have a legitimate right to claim for refund along with fair delay compensation / interest from the OP developer. 

Furthermore the un-rebutted as well as unchallenged evidence adduced by the complainants also proves the allegation made in the complaint petition.   The complainants have succeeded in establishing that they are consumer/s under the OPs who are ‘service providers’ being the developer and the OPs have failed as ‘service provider’ to perform the obligation as per the agreement despite receiving the entire consideration price of Rs. 13,00,000/-. As such deficiency and unfair trade practice as alleged against the OPs are clearly established and in our view the complaint deserves to be allowed.

In our humble view that complainants deserve refund of the amount of Rs. 13,00,000/- with interest so far as rate of interest is concerned, we are of the view that @9% interest from the date of assured possession i.e. 24.11.2017. Hence compensation in this case is allowed by way of interest, the present case found to have been filed by the complainants under compelling circumstances in order to realize the amount advance by them as per agreement. Therefore the instant case is found to be maintainable and the complainants are entitled to refund of the amount of Rs. 13,00,000/- and the compensation as claimed by the complainants is allowed in the form of interest @ 9% p.a. from the date of assured possession i.e. 24/11/2017. This apart the complainants are also entitled to Rs. 10,000/- towards the cost of litigation.

Hence

ORDERED

The instant complaint is allowed exparte against all the OPs with cost.  

Opposite party No. 2 / developer is directed to make payment of Rs. 13,00,000/- along with interest @ 9% p.a. from the date of assured possession i.e 24/11/2017 to the complainants.

Opposite party No. 2 / developer is further directed to pay Rs. 10,000/- to the complainant as cost of litigation.

The aforesaid payment shall be made by the opposite party / developer within 45 days from the date of this order, failing which the entire amount as aforesaid shall carry interest @ 12% p.a. until realization in full and the complainants shall be at liberty to realize the entire amount in accordance with the provision of law.