FINAL ORDER / JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 12 of the CP Act, 1986.
The fact of the case in brief is that the complainant has entered into an Agreement for Sale with the OPs on 30.04.2017 in respect of the subject shop room measuring more or less 150 sq. ft. on the ground floor north side with common bath cum privy at municipal premises no. 348, Uttar Panchannagram, P.S.-Anandapur (Tiljala) Kolkata-700100 with the limits of KMC under Ward No. 180, District – South 24-Parganas and handed over the entire consideration money of Rs.10,00,000/- for the subject shop room the OPs.
It is stated by the complainant in her petition of complaint that the OP-1 being the absolute owner of the subject land executed a power of attorney in favour of the OP-2 to 4 developer of the said property. The photocopy of the agreement for same dated 30.04.2017 is annexed as Annexure-A.
It is alleged by the complainant that even after expiry of promised period as per Agreement for Sale the OPs did not handed over the possession of the subject shop room to the complainant as per agreement. Then the complainant requested the OPs to refund the entire consideration money paid by him to the OPs for the subject shop room but the OPs did not pay any heed to her request. Lastly, on 16.08.2019 having no other alternative she serve a legal notice dated 25.09.2019 upon the OPs through conducting advocate. The copy of the said along with postal slip and track report letter is annexed as Annexure-B
The complainant repeatedly requested the OPs to refund the entire consideration money of Rs.10,00,000/- as they failed to hand over the possession of the subject shop room to her within the promised period as per agreement dated 30.04.2017. The OPs harassed the complainant and neglected to give her service as the service provider. So such conduct of the OPs is nothing but the deficiency in service on their part.
Being aggrieved and dissatisfied with the act of the OPs and having no other alternative the complainant has filed this case before this Commission / Forum with a prayer to give direction to the OPs to refund the amount of Rs.10,00,000/- to the complainant along with interest @ 18% p.a. from the date of receipt of the money till realization.
The complainant further prayed for giving direction to the OPs to pay compensation of Rs.50,000/- for harassment mental pain and agony along with litigation cost of Rs.30,000/-.
All the OPs i.e. OPs-1 to 4 have contested the case by filing several WV denying all the material allegations leveled against them.
The OP-1 has denied the allegation of the complainant made in the petition of complaint and stated that the petition of complaint is baseless. It is misconceived one, frivolous in nature and motivated and it is devoid of any cause of action. The OP-1 being the land owner has stated that she appointed the OPs-2 and 3 as developer of the subject premises and entered into a development agreement with them for making construction and developed a G+4 building upon the subject land property with some terms and condition as per agreement and the said construction was done in conformity with the sanctioned plan to be issued by KMC in respect of the subject land.
It is further stated by the OP-1 that as per the said agreement the OP-1/developer had been allocated with 40% of the construction comprising of ground floor, second floor and third floor along with owners allocation in order to effect the said agreement she also allowing the OPs-2 and 3 to deal with the third party for the sale of the developers developer’s flats and / shops. Accordingly OPs executed a Power of Attorney duly registered in the office of D.S.R.-III, South 24-Parganas and the same is recorded in Book No. IV CD, Volume-I, Page No. 786 to 799 being Deed No. 00267 for the year 2014 by the said power of attorney the OP-2 an 3 also empowered to execute and register the sale / transferred in respect of the subject property belong to the developers allocation. It is admitted by the OP-1 that as per the Agreement for Sale the possession of the shop room in question has to be delivered within 2 months from the date of the said agreement.
It is further stated by the OP-1 that she is in no way connected with the OPs-2 and 3 if they failed to handover the possession of the subject property within the stipulated period and she is in no way connected with any transaction took place between the complainant and the OP-3. The OP-1 denied that he along with other OPs have tried to misappropriate the subject property in question. The OP-1 further stated that he never benefited with consideration amount from the complainant at any point of time. The OP-1 is prayed for expunging his name from the cause title of the petition of complaint and alleged that the petition of complaint is baseless and thus is liable to be dismissed.
The OP-2 in his WV stated that the petition of complaint is, misconceived and harassive as well as is not maintainable in the eye of law. He further stated that the complainant has no cause of action to file this case. The OP-2 further stated that he is running his business in the name and style of “Abdullah Dream Land” (a proprietorship concern). He is running his business in good reputation in interior field. Being satisfied with his performance the OP-1 being the landowner of the premises No. 348, Uttar Panchannagram, P.S.-Anandapur (Tiljala) Kolkata-700100 has expressed her intension to construct a G+4 building in her plot of land. It is further stated by the OP-2 that one Debasish Nath is the son of the complainant is a promoter developer. The OP-2 after getting the proposal of the development work in the subject plot from the complainant informed Debaisish Nath, thereafter Debasish Nath visited the said plot and stated that he will not directly involved in the said construction work but he can provide fund to complete the said construction work and he will arrange building materials on credit. One Jitendar Kumar Singh is a dealer and building material supplier and he is carrying his business in the name and style of “JK Builder”, one of the common friend of Debasish Nath and OP-2 who used to supply building materials on credit. The OP-2 used to purchase materials from the Jitendar Kumar Singh on credit. It is further stated by Debasish Nath the son of the complainant that the OP-2 executed two Sale Agreements duly executed on 21.04.2017 and 30.04.2017 and he got one agreement in favour of his mother Dipu Nath and another in favour of his wife Sonali Nath. It is alleged by the OP-2 that said Debasish Nath told him to adjust the money against the consideration money against the said shop room. So the complainant not paid a single furthering on account of consideration amount of the subject shop room. As the OP-2 unable to refund the amount invested by Debasish Nath then OP-2 offered to deliver the possession to the complainant. But the complainant did not accept the offer as a result without having any other alternative the OP-2 sold out the said shop room and refund a sum or Rs.28,00,000/- to Debaish Nath and his wife, the son and the daughter in law of the complainant. Debasish Nath received the said money in the name of “M/s. Deb construction”. The payment was made in cash. The statement of A/c showing transactions are annexed as Annexure-B. Subsequently in the month of September, 2019 the son of the complainant sent three letters bearing same dates on behalf of the complainant. In one of the notice he claim a sum of Rs.8,00,000/- with 8% interest where he made that he received a sum of Rs.18,00,000/- out of Rs.35,00,000/- and he also disclosed that he got another Sale Agreement executed on 27.02.2016 form the OP-2. A copy of the legal notice dated 25.09.2019 is annexed herewith as Annexure-C. The OP-2 alleged that the son of the complainant has invested a sum of Rs.29,00,000/- and in order to secure the return of his investment he got two Sale Agreement one is executed in the name of his mother and another in the name of his wife. Both the agreement was executed on 21.04.2017 and 30.04.2017 wherein Debasish Nath the son of the complainant is stood as witness. So the petition of complaint, as filed by the complainant is false frivolous and without any basis thus the same is rejected.
The OP-3 has contested the claim application by filing a separate WV denying all the material allegation leveled against him. It is stated by the OP-3 that the petition of complaint is not maintainable for misjoinder of necessary parties. The complainant has no cause of action and the case is liable to be dismissed.
The OP-3 submitted that the agreement attached with the petition of complaint is / was a manufactured one and it is created for the purpose of this case. The OP-3 further stated that the complainant never claimed the possession of the subject shop room rather she has claimed the refund of the money and it is also denied and disputed that the complainant is entitled to get the rest amount of Rs.10,00,000/- from the OP-3 or the other OPs and the OP-3 has no connection with the alleged transaction thus the petition of complaint is baseless and liable to be dismissed.
The OP-4 has also contested the claim application by filing a separate WV denying all the material allegation leveled against him. It is alleged by the OP-4 that no agreement was made in between the complainant and the OP-4 and the OP-4 did not know about anything of the alleged monetary transaction which is stated by the complainant and other OPs. The OP-4 further stated that he did not receive any lawyer’s letter sent by the complainant.
It is the case of the OP-4 that there was a verbal agreement to develop building upon the subject premises in which the OP-4 invested a sum of Rs.4,00,000/- but subsequently the difference of opinion took place between the developer and landlord of the subject premises for which the OP-4 kept aside from the business and took away a sum of Rs.3,00,000/- from the other developers and the rest amount of Rs.1,00,000/- was due and in the earlier stage of alleged agreement between the developer and landlord the OP-4 removed himself from the responsibility of the development work so, he is not responsible for the case and the case is liable to be dismissed.
In view of the facts as stated by the complainant it has to be considered by this Commission:
1. Whether the case is maintainable or not?
2. Has the complainant any cause of action to file this case?
3. Is the complainant consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Is the complainant entitled to get the relief as prayed for?
Decision with reasons
All the points of considerations are taken up together for convenience of discussions and to avoid unnecessary repetition.
On a close scrutiny of the materials on record, facts and circumstances, and position of law it is found that the case is well maintainable in the eye of law and the Commission has got ample jurisdiction to try this case in all respect.
It is the case of the complainant that she entered into an Agreement for Sale for the purpose of purchase of the subject shop room measuring about 150 sq. ft. in ground floor, northern side with common bath cum privy of the subject premises at a consideration of Rs.10,00,000/- in premises no. 348, Uttar Panchannagram, P.S.-Anandapur (Tiljala) Kolkata-700100 with the limits of KMC under Ward No. 180, District – South 24-Parganas and the Agreement for Sale was executed on 30.04.2017. It was agreed that the developer i.e. OP-1, 2 3, and 4 will handed over the subject shop room to the complainant.
It is alleged by the complainant in her petition of complaint as well as in the evidence and written argument that even after expiry of stipulated period the OPs did not hand over the possession of the subject shop room to the complainant so she served a legal notice upon the OPs on 25.09.2019 (Annexure-B) and due to inaction of the OPs the complainant compelled to knock the door of this Commission for getting relief.
She claimed the refund of the consideration money along with interest. The OP-1 to 4 in their WV, evidence and argument denied the claim of the complainant rather they admitted that the Agreement for Sale was executed in between the complainant and themselves on 30.04.2017 and it was also admitted fact that the OPs did not handover the possession of the subject shop room to the complainant. Admittedly the OP-1 being the landowner entered into a development agreement with the OPs-2, 3 and 4 for development and construction of a G+4 building in the subject premises as mentioned above. Subsequently, the OP-2 and 3 entered into an Agreement for Sale with the complainant for selling the subject shop room measuring about 150 sq. ft. at a consideration amount of Rs.,10,00,000/-.
From the evidence on record as well as WV submitted by the OP-1 it is found that the OP-1 denied her nexus in respect of the consideration money between the complainant and the OP-2 and 3. The OP-2 being the developer tried to make a third story that one Debasish Nath is the son of the complainant who is running his construction and development business in the name of “M/S Deb Construction” he invested money in the project in question, and for security purpose he made agreement in respect of two shop room one in the name of his mother/complainant and another in the name of his wife and said Debasish Nath invested a sum of Rs.29,00,000/- from time to time in the development work of the premises in question. It is allege by the OP-2 that the complainant did not pay even a farthing so she is not entitled to get the refund of the consideration money. This third story of the subject matter of the case has no basis at all. Moreover the OPs failed to prove their case that the complainant did not pay any consideration amount at the time execution of Agreement for Sale dated 30.04.2017. The OP-1 failed to prove that he has no nexus with the alleged transaction of the consideration money of Rs.10,00,000/- in between the complainant and the OPs by adducing cogent evidence and any court of law cannot act on the basis of the cock and bull story narrated by any of the parties like the OPs of this case.
Form the evidence on record it is palpably clear that the Agreement for Sale is executed in between the complainant and the OPs-2, 3 and 4 on 30.04.2017 in respect of the subject shop room with common bath cum privy measuring about 150 sq.ft. at a consideration amount of Rs.10,00,000/-. It is also admitted fact that the OPs did not handover the possession of the subject shop room as per terms and conditions for Agreement for Sale dated 30.04.2017 till this date.
As and when the complainant and the OP-2, 3 and 4 entered into an Agreement for Sale on 30.04.2017 for the purpose of purchase of subject shop room measuring about 150 sq.ft. in the ground floor of the subject premises at a consideration of Rs.10,00,000/- since then the complainant is a consumer within the ambit of CP Act, 1986 and the OPs are the service provider.
Though the OP-1 tired to evade from her responsibilities by submitting that she appointed the OP-2, 3 and 4 as developer of the premises in question or construction of a G+ 4 building but she has no nexus in the alleged transaction made between the complainant and the OP-2, 3 and 4 but admittedly the OP-2 to 4 have appointed by the OP-1 as developers of this subject premises so the OP-1 to 4 are on same footing in the eye of law and in case of discharge of their duties and responsibility to the intending purchasers like the present complainant.
In view of the discussions made above, it is opined by the forum that all the four OPs are the service providers and even after receipt of entire consideration money of Rs.10,00,000/- they failed to handover the subject shop room with common bath cum privy as mentioned in the petition of complaint to the complainant even on repeated request made by her, by their conduct and inaction they neglected the claim of the complainant and harassed her which caused mental paid and agony and such conduct of the OPs is nothing but deficiency in service on their part for which they are liable to pay compensation to the complainant.
The complainant on several occasions requested the OPs to handover the possession of the shop room subsequently when they failed to handover the possession of the subject shop room to the complainant, the complainant demanded the refund of the consideration money and she communicated the OPs on several occasions both verbally and in writing lastly on 16.08.2019 and 25.09.2019.
The OPs alleged that the complainant has no cause of action to file this case but the settled principle of law that cause of action is bundle of facts. In the instant case also when the complainant did not get the possession of the subject shop room even after expiry of stipulated period as mentioned in the Agreement for Sale dated 30.04.2017 and demanded the consideration money from the OPs on several occasion till 25.09.2019 either verbally or in writing all these are the cause of actions of the complainant to file the case before this Forum. When it is admitted fact that till the date of filing of the case the OPs did not handover the possession of the subject shop room or did not refund of the consideration money of Rs.10,00,000/- to the complainant then undoubtedly it is proved beyond all reasonably doubt that the complainant has / had sufficient cause of action to file the case and she did it.
Hence in view of the discussions made above, it is held by the Forum that the complainant being a consumer could be able to prove her case beyond all reasonable doubt against the OPs. The OPs being the service providers are failed to give service to the complainant which is amounting to deficiency in service on their part for which they are liable to give compensation to the complainant
All the points of consideration are considered and decided in favour of the complainant.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed on contest against the OPs-1 to 4 with cost of Rs.5,000/-.
The OPs are directed to refund the consideration money of Rs.10,00,000/- only to the complainant as paid by her along with interest @ 6% p.a. on the same amount from the date of filing of this case till realization either jointly or severally within 45 days from the date of this order.
The OPs are further directed to pay compensation of Rs.20,000/- to the complainant for harassment, mental and pain and agony along with litigation cost of Rs.10,000/- either jointly and or severally within 45 days from the date of this order, i/d the complainant will be at liberty to execute the same as per law.
Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.
