Dt. of filing- 21/11/2017
Dt. of Judgement- 24/06/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by the complainants namely Ratan Nath and Tulsi Nath under Section 12 of the Consumer Protection Act, against the Opposite Parties namely M/s. Chowdhury Enterprise and Partha Chowdhury alleging deficiency in service on their part.
Case of the complainants in short is that they are the absolute owners of the schedule property and were in possession of the same. A Development agreement was executed by and between the complainants and the OPs which was registered on 26.05.2014. As per the terms of the agreement, construction was to be completed within 18 months from the date of execution of the agreement but the OP did not show any interest to develop the land. Complainants approached the OP seeking explanation as to why they were not getting the plan sanctioned but OP refused to answer and behaved rudely. Complainants by a letter dated 07.01.2017 requested the OPs to immediately start the process of developing land but almost 10 months had been passed, nothing has been done. A Demand Notice was also sent by the complainants on 17.11.2017 requesting the OPs to execute a former deed of cancellation of development agreement and to pay the compensation as agreed in the development agreement, but all in vain. OP also did not pay Rs.30,000/- in cash as agreed. So, present case has been filed by the complainants praying for directing the OPs to pay a sum of Rs. 4,20,000/- towards compensation as agreed, to pay further compensation of Rs. 2,50,000/- for mental agony and litigation cost of Rs. 30,000/-.
Complainants have annexed with the complaint petition, copy of the development agreement, copy of the deed of sale, copy of the letters dated 13.11.2017 sent by the complainants to the OPs.
OP No.2 has contested the case by filing a Written Version denying the material allegations made in the petition of complaint contending inter alia that he has paid advance of Rs. 30,000/- as agreed. It is further contended that despite being aware of defective title, complainants induced the OPs to enter into the agreement. Due to non-cooperation by the complainants in not providing the necessary documents, OPs could not get the plan sanctioned. OP has suffered loss of Rs. 15,00,000/- and has become the victim of circumstances. So, OP has prayed to dismiss the complaint petition.
During the course of the evidence, both parties adduced their respective evidence by filing affidavit-in-chief followed by filing questionnaire and reply thereto. Ultimately, argument has been advanced by both sides. So, the following points require to be determined.
- Whether there has been any deficiency in service on the part of the OPs?
- Whether complainants are entitled to relief as prayed for?
Decision with reasons
Point Nos. 1 & 2 : Both these points are taken up together for discussion for the sake of convenience and in order to avoid the repetition. It is an admitted fact that the development agreement dated 23.05.2014 was executed by and between the parties. By the said agreement, OP agreed to construct and complete a new building in the property as described in the schedule. On perusal of the agreement, it is evident that the OP agreed that he shall complete the building within 18 months from the date of sanction of the plan and/or from the date of getting peaceful vacant and khas property from the owner whichever is later. The only contention which has been raised by the OP is that due to the defective title and also as he was not handed over the proper up-dated tax bill and mutation papers, he could not get the plan sanctioned. The agreement was executed on 23.05.2014. But it is strange that the OP remained silent all along. He has not filed any document in order to substantiate his claim that he was not handed over the relevant documents to take step for getting the plan sanctioned. It is but natural that if no document was handed over, OP either would go for cancellation of development agreement or would ask for the documents required for sanction of the plan but he did not take any such step. No letter has been sent by the OP to the complainant at any time. On the contrary, complainants have stated that they sent a letter dated 07.01.2017 to the OP requesting to start the process of development but he failed to do so. Another letter dated 13.11.2017 sent by the complainant, stating that as OP failed to complete the construction within the limitation period of 18 months from the date of execution of agreement, he was liable to pay the compensation as agreed. It is also stated in the said letter dated 13.11.2017 that the complainants have approached him earlier also seeking explanation as to why he was not getting the plan sanction in order to develop the land. But inspite of getting the said letter, OP did not reply.
According to OP, he has suffered loss of 15,00,000/- because he had received advance/earnest money from the intending purchasers in respect of the flats to be constructed. But the same contradicts to the own claim of the OP that due to fault on the part of the complainants for not handing over the relevant documents he could not get the plan sanctioned. In this context, it may be pertinent to point out that a developer /builder has no authority to collect any money from an intending buyer without obtaining the sanctioned plan from the competent authority. In this case, as absolutely no document is forthcoming from the side of the OP that the complainants failed to deliver him necessary documents, he is liable to pay the compensation as per the terms of the agreement. It is categorically mentioned in the agreement between the parties that if the developer deliberately fails and neglects in completing the entire project and/or to handover the owner’s allocation within the stipulated period, the developer shall pay a sum of Rs. 10,000/-p.m. to the owner towards the compensation. So, on consideration of the same, OP is liable to pay the said compensation from January 2016, as there has been deficiency in service on his part. However, so far as the payment of Rs. 30,000/- by the developer to the owner as non-refundable consideration, admittedly the same has been paid by the developer. In their Affidavit-in-reply to the questionnaire put by the OP, complainants have admitted that they have received Rs.30,000/-. Regarding prayer for further compensation towards mental agony, we find no justification to allow the same in the given circumstances of this case.
These points are answered accordingly.
Hence,
Ordered
CC/664/2017 is allowed on contest. OPs are directed to pay compensation of Rs. 10,000, per month as agreed, from the month of January, 2016 to till this date within two months from the date of this order. They are further directed to pay litigation cost of Rs.10,000/- within the aforesaid period of two months failing which the entire sum shall carry interest @8% p.a. till its realisation.
