JUDGEMENT

          Complainant by filing this complaint has submitted that he intended to purchase a self contained flat on the ground floor of the super built-up area of 500 sq. ft. more or less containing 2 bed rooms, one kitchen, one toilet and one W.C. lying and situated at Premises No.2C/1A, Kundu Lane, Kolkata-700037 under Police Station-Ultadanga together with the common areas and facilities available in the building together with the proportionate share of land on which the building is erected and total valuation of the flat was fixed at Rs.7,00,000/- and op no.1 being the Developer entered into an agreement with the complainant on 14.08.2011 and at the time of execution of the said agreement for sale, op no.1 received a sum of Rs.4,50,000/- out of total amount of Rs.7,00,000/- from the complainant and it was agreed that finally delivery of possession of the flat to the complainant within 12 months from the date of execution and agreement and would register and execute the Deed of Conveyance in respect of the suit premises after receipt of the balance consideration money.

          But surprisingly even after receiving more than half of the total consideration price of the suit premises, the op did not take any initiative to construct the portion allotted and started developing and constructing the rest portion of the building and when the complainant met with the op for completion of the allotted portion, the ops demanded further consideration amount i.e. balance consideration of Rs.2,50,000/-.  But the op should start the construction of the case flat in the portion allotted to the complainant what was the version of the complainant.  But even after completion of the 12 months from the date of execution of the said agreement to sell, nothing was done and that period was expired on 14.03.2012 yet the ops failed to provide their services in completing the construction of the suit premises.

          Fact remains that complainant filed one complaint before Ultadanga Police Station on 04.05.2012 and it was registered as P.S. Case No.171 dated 19.06.2012 u/s 120B/420 of the Indian Penal Code because complainant was always ready and willing to pay the balance amount but ops after adopting unfair trade practice blatantly refused to deliver possession of the suit premises and to execute and register the Deed of Conveyance and no doubt for such sort of deficiency and negligence on the part of the ops and also for adopting unfair trade practice complainant has filed this case.  In the above circumstances, complainant has prayed for relief and alternatively prayed for refund of the earnest money of Rs.4,50,000/- along with 18% interest per annum till full satisfaction and compensation for harassment and mental agony etc.

          Fact remains in this case ops filed a petition challenging the maintainability of this case and that was decided by this Forum after contested hearing vide Order No.06 dated 27.09.2013.  But op no.2 Miss Bharati Adak by filing written statement on 20.09.2013 submitted that she never entered into any agreement with the complainant and op no.1 only party to the said agreement for sell with the complainant but not on behalf of op no.2 as her constituted attorney.

          Further it has been submitted that complainant claimed that he entered into an agreement for purchase of the flat on the ground floor of the suit premises knowing fully well that there is no existence of flat on the ground floor as per construction of building plan sanctioned by the Kolkata Municipal Corporation on 29.05.2009.  so, the said agreement for sell is void and has no legal effect and it is not binding upon the op no.2 and complainant’s entire allegations are false and fabricated and complainant had his no right to sell and execute the Deed of Conveyance in favour of the complainant in respect of the ground floor which is car parking space or garages.  So it is completely breach of contract and so for which the present complaint should be dismissed against the op no.2 and if complainant has paid any money to op no.1, then it is the liability to op no.1 to refund it.  But op no.2 is no way related with the above agreement to sale as alleged.

          But anyhow op no.1 appeared before this Forum and filed the maintainability petition on 09.09.2013 that has been dismissed on contest as already mentioned in the previous paras and he appeared by filing Vokalatnama through his Ld. Lawyer and after rejection of his maintainability petition on contest practically op no.1 did not file any written version.  But landlord of the entire premises has contested this case by filing written statement as already referred.  So accordingly the case is heard finally after accepting the evidence of the complainant and op no.2 including accepting the documents filed on behalf of both the parties.

                                                        Decision with reasons

          After hearing the Ld. Lawyers of both the parties and also considering the evidences on record of both the parties including the documents and particularly the sanctioned plan, it is found that in the case premises there is ground floor and in the entire ground floor previously there was a structure but at the time of construction the ground floor is kept only for car parking space, pump room, stair case and for other purpose, safety tank etc.  But as per sanctioned plan, it is G+3 and ground floor is kept open and as per sanctioned plan there was no question of any construction there.  So, apparently it is proved that there is no question of any existence of flat on the ground floor.

          But fact remains as per agreement in between the complainant and op no.1 the Developer, it is fact that Developer received Rs.4,50,000/- from the complainant after executing the agreement to sale on 14.08.2011 and in the said agreement to sell Bharati Adak also signed and op no.1 also signed in the said agreement to sell and Swapan Saha is shown as seller of the property and no doubt Swapan Saha son of Smt Smriti Konar Saha is the Developer who is the op of this case and no doubt complainant paid Rs.4,50,000/- by cash and it was received by Swapan Saha.

          So, apparently considering the agreement, it is clear that Swapan Saha received Rs.4,50,000/- in cash from the complainant and executed the agreement to sell for selling one self-contained flat on the ground floor.  But as per sanctioned plan as produced by the landowner op no.2, it is clear that there is no question of construction of flat on the ground floor and ground floor is kept completely for other purpose i.e. car parking space, guard house, electricity room and staircase and considering that fact, it is clear that Swapan Saha as Developer and executor of the agreement to sell dated 14.08.2011 deceived the complainant and no doubt there is no scope on the part of the Swapan Saha to sell that flat because there is or was no scope to construct any flat on the ground floor and truth is that even after that op no.1 received of Rs.4,50,000/- from the complainant but the op no.1 Swapan Saha , did not construct ground floor flat.

          So, it is clear that complainant has been harassed by op no.1 and op no.1 deceived the complainant in so many manners and practically Swapan Saha adopted unfair trade practice and for which complainant suffered financially and also suffered mental pain and agony and is not able to get the flat.  But truth is that on the ground floor there is no flat but Swapan Saha adopting unfair trade practice and deceiving the complainant received that amount of Rs.4,50,000/- on 14.08.2011 and invested it for the purpose of its developmental work and sell other flat to other consumers/persons at high rate and made huge profit. The loss is caused to the complainant in so many manner by the op no.1

          So, in the above circumstances, there is no scope of the complainant to get the ground floor under any circumstances.  But no doubt op no.1 is not willing to refund Rs.4,50,000/- along with interest @ 12% p.a over the same starting from 14.08.2011 and till its full payment by the op to the complainant.

          For adopting unfair trade practice and for causing mental agony and pain and sufferings op no.1 shall have to pay damages to the extent of Rs.1,00,000/- to the complainant.  But anyhow the complainant has failed to prove any liability of the op no.2 by any means as per agreement which was not executed in between op no.2 and complainant or op no.1 did not sign as Power of Attorney holder of op no.2 and for which in this case this complainant fails against op no.2.

          In this case it is to be mentioned that this op no.1 or 2 never applied for registration of his name for the landowner in respect of the present premises or building under construction.  So, the provision of West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters Act 1993) is not applicable and there is no certificate of registration under the Act possessed by the ops.  So, under any circumstances the said Act is not applicable in the present case and for which already it is decided that this complaint is maintainable in the eye of law and not barred u/s 12A of WB Building (Regulation of Promotion of Construction and Transfer by Promoters Act 1993) and said Act is not applicable and in the particular case, it is not at all applicable in view of the fact that there is no existence of such flat as per sanctioned plan in the said premises.

          So, invariably complainant is entitled to get refund of the entire amount of Rs.4,50,000/- as paid on 14.08.2011 and for which complainant is also entitled to get interest as already observed and further other damages when op no.1 as Developer adopted unfair trade practice and deceived the complainant in so many manner causing mental pain, agony and financial loss.      

Thus the complaint succeeds against the op no.1 but same fails against the op no.2.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the op no.1 and same is dismissed against the op no.2 but without any cost.

          Op no.1 Swapan Saha is hereby directed to refund Rs.4,50,000/- as received by the op no.1 from the complainant on 14.08.2011 along with 12 % interest per annum over the said amount w.e.f 14.08.2011 and till its full satisfaction and also to pay a sum of Rs.1,00,000/- as damages for causing mental pain and agony and also for deceiving the complainant in so many manner by executing a fake agreement to sell in respect of non-existence flat.

          Op no.1 is hereby directed to clear the entire above part of the decree within one month from the date of this order failing which for each day’s delay he shall have to pay punitive damages @ Rs.500/- per day till full satisfaction of the decree.

          As Developer for adopting unfair trade practice op no.1 is imposed further punitive damages to the extent of Rs.50,000/- and it is imposed to check and control the unfair trade practice of the op no.1 and it shall be deposited to this Forum within one month from the date of this order by the op no.1.  If op fails to comply the order within the stipulated period in that case penal action shall be taken against him and further fine and penalty shall be imposed for which op no.1 shall be prosecuted and may be sent to jail for non-compliance and violation of the Forum’s order.