SRI SHYAMAL KUMAR GHOSH,  MEMBER

1. The instant consumer case under section 17 of the Consumer Protection Act 1986 has been filed by the complainant against the opposite parties praying for delivery of possession of the flats as per schedule, execution and registration of the deed of conveyance, delivery of completion certificate, compensation and costs.
2. The fact reveals in short that the opposite party no-1 is a land owner. With an intention to construct of a multi-storied building, the opposite party no -1/land owner has appointed the opposite party no – 2, a Partnership Firm represented by the ops no – 3 and 4 (developers) by way of executing one development agreement dated 22/01/2015.
3. The complainant has decided to purchase two flat. One is situated at the first floor measuring area about 830 sft and other is situated at the ground floor measuring area about 415 sft. The total consideration amount of Rs.22,40,000/- (twenty two lakhs forty thousand only) has been fixed and to that effect an agreement for sale has been executed by and  between the complainant and the opposite parties on 24/01/2015.
4. It is the case of the complainant that for execution and registration of the deed of conveyance, the opposite parties have demanded agreement for sale in original for the purpose of drafting of the deed of conveyance. Subsequently, the complainant has delivered the same on good faith to the ops 2 to 4 without keeping any Xerox copy of the said agreement for sale and as such the complainant have failed to file the same before the Commission.
5. On the different dates the complainant has paid the consideration amount of Rs22,40,000/- to the opposite parties wherein the opposite party no – 4 has issued one final money receipt dated 02/04/2016 in favour of the complainant.
6. By filing the petition of complaint, the complainant has stated that due to joint family members, the sufficient accommodation is highly required for their shelter under the same roof and for the said reason, the complainant has booked two flats so that the family members can be able to reside safely  and peacefully under the same roof. Accordingly, it cannot be treated as an investment/commercial transaction.
7. The flats in question are almost in complete stage. The opposite parties 2 to 4 have already prepared the deed of conveyance and they have also obtained the signature upon the said deed of conveyance. The date of registration has been fixed on 27/04/2016 but none was communicated.
8. On several occasion the complainant has requested the ops 2 to 4 to return back the original agreement for sale dated 24/01/2015 but they did not pay any heed.
9. It is very unfortunate that after realization of the consideration amount of Rs.22,40,000/-, the execution and registration of the deed of conveyance is still pending. No possession has been delivered to the complainant till date. No completion certificate has also been delivered to the complainant causing clear gross negligence and deficiency in service on the part of the ops. Accordingly, the complainant has knocked at the door of the Commission for getting proper reliefs as prayed for against the opposite parties.
10. The opposite party no -1 has contested this case by filing written version stating inter alia that no substantial allegation is made out against the opposite party no -1. The opposite party no – 1 is a landowner who has already executed a power of attorney in favour of the ops 3 and 4 and has also entered into a development agreement with the ops 2, 3 and 4. The op no – 2 has been represented by the ops no-3 and 4 who are supposed to execute the development work ie construction work upon the schedule land after demolition of the existing structure. By filing written version, the op no – 1 has clearly stated that the ops 2 to 4 would be authorised to convey, sell etc the newly constructed flats to the complainant/complainants from their allotment. The op  no – 1 cannot be held liable or responsible in any way for doing or committing any wrong on the part of the ops 2 to 4 as the op  no – 1 has already executed power of attorney upon the ops 2 to 4 herein. Accordingly, the op no – 1 being a landowner has no fault or negligence and as such the op no – 1 has prayed for dismissal of the petition of complaint with exemplary costs.
11. The order no-6 dated 20/09/2018 clearly reveals that a date i.e. 20/09/2018 has been fixed for filing written version by the opposite parties no – 2 and 4 as a last chance. But no written version has been filed by them and as such the case has been fixed for ex-parte against the op nos. 2, 3 and 4.
12. Whether the complainant comes well within the purview of the definition of the consumer or not as per Consumer Protection Act 1986 that should be decided at first. It appears from the receipt dated 02/04/2016 issued by the Shivam Construction ie op no – 1 herein that the developer viz Md. Murtuza, ie the op no – 4 herein has received Rs.22,40,000/- (twenty two lakh forty thousand) only from the complainant viz. Soni Devi in respect of ground floor 415 sft and first floor 830 sft. By filing the said receipt, the complainant proves that in respect of aforesaid two flat, she has already paid the consideration amount of Rs. 22,40,000/- to the op no-1 and the same has been acknowledged by the op  no -4. Thus being the situation, there is no hesitation to hold that the complainant comes well within the purview  of the definition of the consumer in pursuant to the provision of the Consumer Protection Act, 1986. Thus, the aforesaid point is decided as per above observations.
13. It is admitted that one development agreement dated 22/01/2015 has been executed between the opposite party no -1/land owner and the other ops 2 to 4/developers wherefrom it appears to us that Sri Sambhu Charan Ghosh/land owner has mutated his name in the record of concerned Municipality and in the office of BL&LRO. Being an absolute owner, the aforesaid landowner has intended to construct a new building on the proposed land but due to lack of experience in construction work as well as his financial hardship, he has approached to the other ops 2 to 4 herein for construction of multi-storied building upon the said proposed land. Now the landowner herein has entrusted the ops no -  2 to 4 to raise new construction upon the proposed land. The aforesaid agreement further reveals that from the date of starting of the construction work, the entire liabilities and responsibilities as regards construction work would lie upon the ops 2 to 4 and to that effect the landowner shall have no liability and responsibility.
14. Now, we have carefully perused the Power of Attorney executed and registered on 22/01/2015 at the office of Additional Registrar of Assurance-III, Kolkata, wherefrom it appears to us that Sri Sambhu Charan Ghosh, the op no – 1 herein do hereby nominate and appoint Sri Bijay Shankar Yadav, the op no – 3 herein and  Md. Murtuza, the op no - 4 herein both partners of Shivam Construction, the opposite party no – 1 herein to do various activities such as raising multi-storied building upon the proposed land, making construction, selling their allocated portion of flats, taking consideration amount from the intended purchaser/purchasers etc.
15. It has been pleaded in the petition of complaint that an agreement for sale has been executed between the parties on 24/01/2015 and for the purpose of execution of Deed of Conveyance in favour of the complainant, the ops 2 to 4 have demanded the original copy of agreement for sale. Subsequently, the complainant has submitted the same to the ops without keeping any Xerox copy of the said agreement. In this respect we have carefully perused the deed of conveyance which is still pending for registration. From the said document it appears to us that the deed of conveyance has already been prepared and the said document clearly reveals that in terms of agreement dated 24/01/2015 the developer/Firm has almost completed the proposed building along with all available facilities, amenities and has also delivered owner’s allocated portion. In terms of said registered development agreement, the ‘B’ schedule flat has been allotted in favour of the developer/Firm and the partners of the said firm have every right to sale/transfer the same in favour of any third party on the strength of attorneys of the owner. From the aforesaid fact, it is admitted and proved that one agreement for sale dated 24/01/2015 has already been executed between the parties though said agreement has not been filed by the complainant at the time of institution of the instant case.     
16. From the foregoing discussion, it is crystal clear to us that after making payment of Rs. 22,40,000/- to the ops/developers, the complainant has failed to get possession of the aforesaid flat in question. The execution and registration of the deed of conveyance in favour of the complainant is still pending.
17. At the time of final hearing, ld counsel appearing for the complainant has submitted that the performance of the ops is not satisfactory. There is no chance to get the flat in question as such the complainant has prayed for refund of the consideration amount with interest. At this juncture, we think that the order of refund in favour of the complainant should be passed in order to provide proper justice to the complainant. Be it mentioned here that the said C.P. Act has been enacted exclusively for the benefit of the consumer/consumers.
18. Be it mentioned here that no written version has been filed by the developers/ops 2 to 4 and as such the matter has been fixed for ex-parte. As a result the petition of complaint remains unchallenged and un-rebutted.  There is no reason to disbelieve the testimonies of the petition of complaint due to silence on the part of the OPs No. 2 to 4.
19. Thus being the situation, we can safely rely upon the following citations which are discussed as follows:-

In Sanjoy Kr Gupta vs Kebal Kisahan Baran and others reported in 2014 (3) CPR 236 (NC) wherein the Hon’ble NCDRC has been pleased to hold that Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds.

In Smt V Kamala and others vs K. Rajib represented by his General Power of Attorney holder, K. V. Babji and others reported in 2014 (3) CPR 91 (NC) wherein the Hon’ble NCDRC has been pleased to hold that an inter se dispute between the owners and builder cannot be permitted to be used as a ploy to wriggle out of obligation under agreements and leave buyers in lurch.

In Fortune Infrastructure and another vs Trevor D’lima and others reported in (2018) 5 SCC 442 wherein the Hon’ble Apex Court has been pleased to hold that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him along with compensation.

Considering all aspects from all angles and keeping in mind the present position of law and regard being had to the submissions of the ld advocate and citations of the Hon’ble Apex Court and Hon’ble NCDRC we are constrained to hold that there is a clear fault or negligence on the part of the ops 2 to 4 developers and as such the instant CC case is allowed ex-parte against the ops 2 to 4/ developers with costs and the same is dismissed on contest against the op no – 1 land owner without any order as to costs. Accordingly

It is

                                             Ordered

That the opposite parties/developers 2 to 4 are directed to make the refund of Rs.22,40,000/- (Rupees twenty two lakh forty thousand) only to the complainant within 45 days from the date of this order along with interest @ 8% pa from the date of each payment till full realization in the form of compensation.

That the ops/developers 2 to 4 are further directed to pay litigation cost of Rs.20,000/- (Rupees twenty thousand) only to the complainant within the aforesaid stipulated period of time in default the awarded amount shall carry interest @ 8% pa till full realization.

No order is passed against the op no – 1 / land owner since by virtue of aforesaid Power of Attorney, all responsibilities have already been vested upon the ops 2 to 4 / developers to do various lawful activities which are clearly enumerated in this particular instrument.

In case of non-compliance of order from the end of ops 2 to 4/developers, the complainant is at liberty to put the said order in execution in order to get proper relief as prayed for.

The instant CC case stands disposed of.

Note accordingly.