HON’BLE SUDIP NIYOGI PRESIDENT FACTS In a nutshell the complaint case is that: - The Complainant in order to buy a residential flat, entered into an agreement for sale on 25.08.2004 with OP No.1 (Developer) one flat of 640 sq. ft. more or less on the second-floor south-west corner in the premises at 17/2 H, Dr. Suresh Chandra Banerjee Road (Beliaghata Main Road), P.S. & P.O – Beliaghata Ward No.34, Kolkata – 700010 at a consideration of Rs.7,04,000/-. She paid Rs.2,18,000/- by a cheque on 25.04.2004 drawn on SBI (Sealdah Branch) while Rs.1,60,000/- was paid in cash. Subsequently, the said flat was registered on 06.03.2006 on payment of the balance consideration of Rs.3,50,000/- by way of a cheque. In order to pay the consideration amount, Complainant had to take house building loan. The said premises is named as “DARPAN Apartment’ which is a G + 3 storied building. Thereafter, Complainant requested delivery of possession of her said second-floor flat from OP No.1 (Developer) to which the Developer told her to stay temporarily on the third floor of the said building for the time being, in order to enable him to complete the work of the Complainant’s flat. Accordingly, the Complainant was compelled to stay on the third floor of the said flat. Subsequently, the Complainant claimed to know her registered flat on the second- floor was handed over to one of the land-owners Shri Sailendra Nath Karmakar. Further case of the Complainant is that the said third floor of the building was an unauthorized one. That apart, no completion certificate was given to her in respect of the said premises. As OP No.1 (Developer) did not hand over the possession of her registered second-floor flat, one legal notice was sent to him and ultimately complainant filed this complaint with a prayer for a direction upon the Developer to hand over the second-floor south-west side flat in the said premises or alternatively refund the amount of consideration paid by her for the said flat along with interest, cost of litigation etc. OP No.1 & 2 contested this case by filing a separate written version and evidence. Both the OPs denied the allegations of the Complainant made in her petition of complaint. According to OP No.1, Complainant cannot get any relief in this case which is hopelessly barred by limitation. OP No.2 in his written version claimed that he obtained the second-floor southern portion flat in the said premises as land-owner from the Developer in accordance with the development agreement. Barring OP No.1 & 2, no other OPs namely OP No.3, 4, 5 (i) & (ii), 6 and 7 did not appear to contest this case. Now, the point for consideration is whether the Complainant is entitled to the relief(s) as prayed for. FINDING On going through the materials available on record it is found that Complainant and both OP No.1 & 2 filed their evidence. No questionnaire was filed on behalf of the OPs against the evidence of the Complainant. We further find that the Complainant filed questionnaire against the evidence of OP No.1 & 2, but no reply was given by OP No.1 while OP No.2 duly complied with his replies. Complainant and both OP No.1 & 2 also filed written argument. Complainant produced the copy of the agreement for sale entered into between the Complainant and OP No.1, who was the Developer and also the power of attorney holder of the land-owners and also the deed of conveyance dated 06.03.2006 and the development agreement was produced on behalf of OP No.2. On going through all these it is clear that in the development agreement entered into between OP No.1 and the land-owners where one G + 3 storied building was agreed to be constructed by OP No.1 and the specific allocations of the land owners and the developer allocation were mentioned in the said development agreement. As per said agreement, the second-floor southern portion flat along with other portions in the proposed building would be the land-owners’ allocation. But what we find, the agreement for sale of the flat of the Complainant which was made on 25.08.2004 with OP No.1, the schedule of flat was given in the said agreement was second-floor south-west side flat measuring about more or less 640 sq. ft. which was specifically mentioned in the schedule ‘B’ to the said agreement. Again, the deed of conveyance dated 06.03.2006 further reveals that the flat situated at second-floor south-west side measuring about more or less 640 sq. ft. with super built-up area etc. as mentioned in the ‘B’ schedule was transferred to the Complainant on payment of the entire consideration, though in the site plan of the third-floor of the said premises was mentioned which is found to be erroneously noted as it was not in compatible with the recitals of the deed. We find that in her questionnaire against the evidence of OP No.1, Complainant made queries in respect of the said flat which was executed and registered in favour of the Complainant following the agreement for sale dated 25/08/2004 and other matters. But, curiously OP No.1 (Developer) did not file any reply, though OP No.2 claimed that the second-floor southern side flat was given to the land-owners as per the development agreement by way of possession letter and thereafter OP No.1 is under occupation of the said flat on a settlement among the land-owners. It seems that OP No. 1 (Developer) preferred to find an escape route in not giving the replies to the queries of the complainant as he found to have no suitable answers with him. From this it is quite clear that OP No.1 knowing fully well that the second-floor southern side flat would be given to the land-owners following the development agreement which was made on an earlier date i.e. on 25.06.2004, then subsequently entering into an agreement with the Complainant thereby agreeing to sell the said southern side second floor flat to the Complainant is nothing but absolutely an unfair trade practice on his part, not to speak of practicing fraud upon both the complainant and the land owners. In this connection, it is to be noted that the Complainant claimed that as the work of her second-floor southern side flat was not completed, she was allowed to stay on the third floor for a temporary period by the OP No. 1 (Developer). But subsequently, the second-floor southern side flat was not handed over to the Complainant despite repeated requests. Apart from this, no possession letter and completion certificate of the building were also issued by the said Developer. There is no specific denial by OP No.1 in this regard. This apart, it has to be mentioned here that unless and until the physical possession was handed over and the completion certificate of the building is obtained and given to the parties, the purchaser has every right to agitate matter before the concerned Authority and for that reason the instant complaint cannot be said to have been barred by limitation. In fact, Complainant is found to have been cheated by the acts of OP No.1 (Developer), as by his acts of agreeing and subsequently executing the second-floor southern side flat to the Complainant while he knew very well that the said flat would be given to the land-owners. Therefore, having gone through the entire materials on record we find there are genuine grounds of the complainant to feel aggrieved by the acts and behaviour of OP No. 1 (Developer). During Argument, Complainant claimed that she wanted to get back the amount spent by her as consideration price for the flat along with interest and cost of litigation, though in her prayer she had also prayed for handing over the flat in the said premises by OP No.1. So, we are of the view that OP No.1 should be given a direction to refund the entire amount of Rs.7,04,000/- along with interest @10% p.a. since the date of registration i.e. on 06.03.2006. This apart, Complainant is also entitled to Rs.6,000/- for cost of litigation. Accordingly, it is ORDERED That the instant complaint be and the same is allowed on contest against OP No.1 & 2 and ex parte against the other OPs. i.e. OP No.3, 4, 5 (i) & (ii), 6 and 7. OP No.1 is hereby directed to refund the entire amount of the consideration price of Rs.7,04,000/- (Rupees Seven Lakh Four Thousand Only) along with interest @10% p.a. from the date of registration i.e. on 06.03.2006 to the complainant. It is made clear that OP No. 1 is liable to pay interest at a higher rate @12% p.a. until realization, if he fails to make the payment within the period as specified hereunder. OP No.1 is also to pay Rs.6,000/- (Rupees Six Thousand Only) to the Complainant towards cost of litigation. OP No.1 is directed to comply with this order within 60 days from the date of this order failing which the Complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me President | 
