Dt. of filing – 30/01/2018
Dt. of Judgement – 05/08/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Smt. Ruma Ghosh (Hajra) under Section 12 of the Consumer Protection Act, 1986 against the Opposite Party namely The Graphs alleging deficiency in service on its part.
Case of the Complainant in short is that Opposite Party with intent to develop the land comprising in Khatian No.76, Dag No.95 under Sonarpur Police Station entered into an agreement for sale with the owner of the said plot namely Naren Pramanick and also obtained one General Power of Attorney for raising multi-storeied building containing several flats. During the period of construction of the said building by the Opposite Party/developer, he entered into an agreement for sale with the Complainant on 4/10/1995 in respect of one self contained flat on the 2nd floor described in the schedule at a total consideration price of Rs.1,35.000/- and development cost of Rs.5,000/- totalling an amount of Rs.1,40,000/-. Complainant has paid Rs.1,20,880/- out of said total amount of Rs.1,40,000/-.It was agreed that the flat in question would be handed over to the Complainant after 177 months from the date of execution of the agreement which expired in the month of July, 2009 but Opposite Party neither started the construction work nor replied anything in response to the query of the Complainant. So, a notice has been sent dated 20/9/2016 by the Complainant to the Opposite Party and in reply to the said notice Opposite Party denied his obligation to complete the construction job. So the present complaint has been filed by the Complainant praying for directing the Opposite Party to provide same size of flat in the said locality or to refund the amount of Rs.1,20,880/- and also to pay escalation amount of the same size flat as per present market value tentatively at Rs.14,03,500/-, to pay compensation of Rs.3,00,000/- and litigation cost of Rs.50,000/-.
Complainant has annexed with the complaint petition, copy of the agreement, receipts of notice sent by the Complainant and reply by the Opposite Party.
Opposite Party has contested the case by filing written version denying and disputing allegations. It is contended by the Opposite Party that the case is bad for mis-joinder and non-joinder of necessary party. It is the specific case of the Opposite Party that the construction of the flat was raised upto plinth level but it could not be carried out any further due to sudden notification by East Kolkata Wetlands Development Authority. Opposite Party was compelled to stop the work which was beyond his control. A discussion was held with the intending purchaser of the said building including the Complainant and her father and after detailed discussions the flat owners had decided to sell out their flat to third party. Complainant has been aware of the entire facts but has come forward with this claim after 22 years. Prior to September, 2016, Complainant never approached the Opposite Party. So, Opposite Party has prayed for dismissal of the case.
During the course of evidence, parties adduced their evidence followed by filing of questionnaire and reply thereto. Ultimately argument has been advanced. Ld. Advocate appearing for Opposite Party has contended that the owner of the land namely Naren Pramanick is a necessary party but he has not been made as a party in this case. On the other hand, Ld. Advocate appearing for the Complainant has argued that admittedly the flat has not been constructed neither he has refunded the money and so if the Complainant intends to buy any flat now, as per the present market value he will have to pay huge amount. So, the Complainant is entitled to the said amount towards escalation of market value.
In the back drop of the argument advanced and the case of both the parties as agitated, following points require determination:-
- Whether the complaint is maintainable in its present form?
- Whether there has been any deficiency in service on the part of the Opposite Party?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1
It has been argued by the Ld. Advocate for the Opposite Party that the complaint is not maintainable due to non-joinder of the owner of the land namely Naren Pramanick as party in this case. On perusal of the agreement for sale entered into between Complainant and the Opposite Party on 4/10/1995 it appears that on the basis of Power of Attorney executed by the owner in favour of Opposite Party, he entered into an agreement for sale with the Complainant. The said owner is neither a party nor a signatory in the said agreement for sale. Apart from this, it is apparent that the payment of the amount as claimed by the Complainant has been made to the Opposite Party. In this case Complainant has prayed for refund of the amount and for directing upon the Opposite Party to pay the escalation amount for the same size flat. On consideration of the relief sought for and the agreement in question, in the given facts and situation of this case, said Naren Pramanick cannot be said to be a necessary party and thus the contention of the Opposite Party that the complaint is bad for non-joinder of necessary party cannot be accepted.
This point is thus answered accordingly.
Point No.2 & 3
Both these points are taken up for a comprehensive discussion.
It is the claim of the Complainant that by an agreement for sale dated 4/10/1995 he agreed to purchase one self contained flat at a total consideration of Rs.1,40,000/-. Out of the said consideration he has already paid Rs.1,20,880/-. So far as execution of the agreement, there is no dispute. In order to substantiate her claim of payment of Rs.1,20,880/-, Complainant has filed several receipts showing payment to Opposite Party. Apart from this in response to the notice sent by the Complainant, Opposite Party in the reply, did not deny payment of the said amount as claimed by the Complainant. Even though in the reply it was stated by the Opposite Party that the construction was to be stopped due to sudden notice by East Kolkata Wetlands Development Authority. So, on consideration of the receipts filed by the Complainant and the reply by the Opposite Party dated 29/9/2016, it is established that the Complainant has paid an amount of Rs.1,20,880/-. It is an admitted fact that the construction of the building has not been completed and so the flat has not been handed over to the Complainant. If that be so, then as there has been deficiency in service on the part of the Opposite Party, Complainant is entitled to refund of the said amount. However, so far as the claim of the Complainant about escalation amount for the same size of flat, Complainant has nowhere explained as to why she remained silent for so many years as according to her period for construction and for delivery of possession expired in July, 2009. Complainant for the first time sent notice only on 20/9/2016. If she had taken steps at earliest when she had noticed that the construction was not started, there would not have escalation of market value to the extent as agitated in the complaint. Complainant has also not filed any document to show the present market value of the same size flat in the said locality. In such a situation, Complainant is not entitled to escalation amount as claimed by her. So we find it would be justified if the Opposite Party is directed to refund Rs.1,20,880/- along with interest in the form of compensation on the said amount @ 12% p.a. Since interest is allowed, we do not find any justification to allow the compensation.
Hence,
ORDERED
CC/42/2018 is allowed on contest. Opposite Party is directed to refund Rs.1,20,880/- to the Complainant along with interest @ 12% p.a on the said amount from the date of payment to till this date within 2(Two) months from the date of passing of this order. Opposite Party is further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of 2(Two) months in default entire sum shall carry interest @ 12% p.a till realisation.
