Date of Filing: 17.04.2018
Date of Judgment: 28.06.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Sarmistha Mandal, under section 12 of the C.P Act, 1986 against the Opposite Parties ( referred to as O.Ps hereinafter) namely 1) Sri Sandip Dey, 2) Sri Anil Mondal and 3) Sri Debasish Naskar, alleging deficiency in service on the part of the O.P.
The case of the complainant in short is that O.P no.1 is the developer, O.P no.2 is the land owner and the O.P no.3 is a contractor appointed by O.P nos.1 and 2. The complainant was in search of a flat and being allured by the proposal of O.P no.1 entered into an agreement for purchasing the entire first floor from the O.P no.1’s allocation measuring 600 sq.ft super built up area at a total consideration of Rs. 10 lac. Complainant paid Rs.3 lac on 16.8.2014 out of the said consideration price of Rs.10 lac. Thereafter complainant has paid further sum and in total Rs. 7,05,000/- has been paid. O.P no.1 was to hand over the flat to the complainant within 31st December, 2014 as per terms of the agreement. Several times complainant requested the O.P no.1 to hand over the possession of the flat but she has not been handed over the same. In the meantime O.P no.1 engaged O.P no.3 to complete the construction who also on request did not hand over the possession. Complainant filed a complaint before the Garfa P.S . She had also filed a case being CC/546/2017 but had withdrawn the same under forced circumstances. So, the present complaint has been filed by the complainant for directing the O.P to deliver the physical possession of the flat as per agreement , an order of permanent injunction, for directing the O.Ps to execute and register the deed of conveyance , to pay compensation of Rs.5 lac and litigation cost of Rs.50,000/-.
The case is contested by the O.P no.1 by filing the written version denying and disputing the allegations contending inter alia that the land owner ,O.P no.2, subsequently entrusted the O.P no.3 to complete the remaining construction work of his property by way of Memorandum of Joint Venture Agreement dated 4.10.2016 by violating the Memorandum of Joint Venture Agreement dated 29.6.2013 executed between the O.P no.1 and the owner Anil Mondal. O.P no.1 desired to hand over and deliver peaceful and vacant possession of the schedule flat to the complainant as per terms and conditions of the agreement dated 16.8.2014 but suddenly he became ill and was admitted in rehabilitation center and was discharged only on 7.12.2016. It is further contended that the O.P nos. 2 and 3 have transferred and conveyed the schedule mentioned flat to a third party already. It is also stated that O.P no.1 has invested huge capital in the said building and completed more than 80% of the construction work but the O.P no.2 has entered into joint venture agreement with the O.P no.3. So, he could not hand over the possession of the flat to the complainant. Thus, O.P no.1 has prayed for dismissal of the case against him.
O.P no.2 has also contested the case by filing written version contending inter alia that he entered into an agreement to develop the property with the O.P no.1 by a Development Agreement dated 29.6.2013. As per terms of the agreement , Developer , O.P no.1, was to complete the work of the proposed 3 storied building within a period of 18 months from the date of signing of the agreement. But as he failed to comply the said condition the said agreement automatically stood cancelled by efflux of time. So, O.P no.2 entered into a Joint Venture Agreement with the O.P no.3 who started the construction work and completed the project. O.P no.3 then executed and registered a deed of conveyance in respect of the flat in question in favour of one Smt. Ruma Kundu on 4.8.2017 from his allocation and O.P no.2 also signed in the said deed as the owner /vendor. Knowing fully well about the transfer of the flat in favour of the said Ruma Kundu, the complainant has not made her as a party. It is stated that complainant also filed a case being CC/546/2017 earlier and said Ruma Kundu was a party there. O.P no.2 is not liable to hand over the flat to the complainant and thus he has prayed for dismissal of the case.
O.P no.3 has also filed written version contending inter alia that he has no knowledge about the purported agreement between the complainant and the O.P no.1. He had no transaction with the complainant and thus he has also prayed for dismissal of the case.
During the course of the trial, parties have filed their affidavit-in-chief followed by filing questionnaire and reply thereof and ultimately argument has been advanced. BNA has also been filed by the parties.
So, the following points require determination:
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Both the points are taken up together for discussion in order to avoid repetation.
At the outset it may be pertinent to point out that it is an admitted fact that the present complainant had filed a complaint previously which was registered as CC/546/2017 on 18.9.2017 against O.P nos. 1,2 and 3 and also one Ruma Kundu which was subsequently withdrawn. According to the specific case of the O.P no.2 as well as O.P no.3 the flat in question has already been transferred by the subsequent developer namely O.P no.3 in favour of Smt. Ruma Kundu and a deed of sale has already been executed and registered in her favour. The fact was very much within the knowledge of the complainant that the said Ruma Kundu is in possession of the property and deed of conveyance has also been executed and registered in her favour but the reasons best known to the complainant, she has not been made a party in this case. There cannot be any denial or dispute that the said Ruma Kundu is a necessary party in the present case. Since the complainant was very much aware about the flat being transferred in the name of the said Ruma Kundu but inspite of the same she has not been made a party, in her absence, there cannot be any direction to hand over possession or execution of deed in respect of the subject flat especially when deed of sale has already been executed in her favour.
However since admittedly, an agreement for sale was executed between the complainant and the O.P no.1 on 16.8.2014 whereby the O.P no.1 who was then a developer by way of joint venture agreement, agreed to sell the flat in favour of the complainant, it is to be considered whether complainant is entitled to refund of sum allegedly paid by him. It is an admitted fact that O.P no.1 could not complete the construction work in terms of the joint venture agreement and according to him only 80% of the work could be completed by him. It is the specific case of the O.P no.2 that since O.P no.1 could not complete the construction work of the building, he entered into a joint venture agreement to develop the property with the O.P no.3. It also appears that O.P no.1 remained admitted at Rehabilitation center and was discharged only on 7.1.2016. So, the contention of the O.P no.2 that as the terms and conditions of the joint venture agreement between O.P no.1 and O.P no.2, was not complied with by the O.P no.1, he had entered into the agreement with O.P no.3 and O.P no.3 subsequently on completion of the project sold the subject flat to Ruma Kundu as mentioned above also finds support from the own case of the O.P no.1 in his written version that he could not complete the construction of the building.
If that be so, then the complainant is only entitled to the sum paid by her to the O.P no.1.
On a careful scrutiny of the written version filed by the O.P no.1, it appears that he has not denied and disputed about the payment of Rs. 7 lac by the complainant. However, he has only denied about receiving Rs.5000/- on 19.1.2017 . But it is evident from the acknowledgement in the backside of the agreement entered into between the O.P no.1 and the complainant, it bears the signature of the O.P no.1 acknowledging receiving of a sum of Rs.5000/- also. The said signature has not been challenged by the O.P no.1. So, as the payment of consideration of Rs.7 lac and also Rs.5000/- as referred to above remains undisputed, complainant is entitled to refund of the said sum paid by him along with interest on the said sum in the form of compensation.
Hence,
Ordered
That CC/208/2018 is allowed on contest against O.P no.1 but dismissed on contest against O.P nos. 2 and 3.
O.P no.1 is directed to refund sum of Rs.7,05,000/- to the complainant along with interest on the said sum @8% p.a from the date of its payment to till this date within 2 months from this date.
The O.P no.1 is further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of 2 months, in default of payment, the entire sum shall carry further interest @8% p.a till realization.
