Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant complaint U/s. 17 of the C. P. Act, 1986 has been filed at the behest of intending purchasers Sri Sushanta Das Gupta and his wife Smt. Sudipta Das Gupta against the Opposite Parties alleging deficiency in service relating to housing construction.

The case of the Complainant in short is that the Opposite Party No.1 M/s. Neo Construction being represented by its partners Opposite Party No.2 Sri Nirmal Kumar Das and Opposite Party No.3 Sri Indranil Chatterjee entered into Development Agreement with Opposite Party/Land owners of the property lying and situated at the Kolkata Municipal Corporation premises No.133/1 Usha Pally, P.S-Bansdroni, Kolkata-70084 within the limits of the K.M.C, Ward No.111.  Subsequently, an agreement for sale was executed on 29-10-2014 between the Complainant and the Opposite Party Nos.1 to 3 Developers in respect of a self-contained north-east-south (front) facing flat vide No.T/1 on the 3^rd floor having 900 sq. ft. super built up area with marble floor along with one car parking space of 120 sq. ft. on the ground floor together with undivided proportionate share of the land with a total consideration amount of Rs.24,50,000/- (Rupees Twenty four lakhs fifty thousand) only.  As per the terms and conditions of the agreement for sale the Complainant paid Rs17,69,500/- (Rupees Seventeen lakhs sixty nine thousand & five hundred) only out of total consideration of Rs.24,50,000/- (Rupees Twenty four lakhs fifty thousand) in different dates of the year from 2014 to 2017.  It was decided as per the agreement between the parties that the Opposite Party Nos. 1 to 3 will deliver possession and registered the sale Deed in favour of Complainants within the stipulated period of 24 months and the tentative date to handover the flat was decided on 31^st January, 2016.  But even after receiving about 72% of the total consideration amount the Opposite Party Nos.1, 2 & 3 neither complete the construction work nor even deliver the possession of the property in favour of the Complainants.  In spite of several requests the Opposite Parties avoided the Complainants showing different excuses to them.  Without finding any other alternative the Complainants sent legal notice to the Opposite Parties on 25-01-2019. But ultimately without getting any fruitful results Complainants compelled to appear before this Commission for Redressal of grievances with the prayer for a direction upon the Opposite Parties to deliver possession and to execute sale Deed in favour of the Complainants along with cost and compensation. 

It appears from materials on record that in spite of proper service of notice Opposite Party Nos.1, 2 & 3/Developers did not enter appearance to contest the case.  Opposite Parties/Land owners have entered appearance and contested the case by filing W/V, questionnaire and evidence on affidavit.  Complainants also filed evidence on affidavit, questionnaire and replies in respect of the case.

On the other hand by filing W/V the Opposite Party Nos.4, 5, 6, 8, 9 10, 11 & 12 have categorically denied and disputed all allegations made against them.  They have stated that the complaint case is not maintainable as the same has been filed against a dead person O.P No.7 Sri Sanjay Das.  Being the owner of the land they have made a Development Agreement on 07-02-2012 with the Developers/Promoters namely M/s. Neo Construction represented by Nirmal Kumar Das Opposite Party No.2 and Opposite Party No.3 Indranil Chatterjee.  As per the terms and conditions of the said agreement that owner shall get 4 flats with two bed rooms each measuring 400 sq. ft. carpet area in the back side respectively in ground floor, 1^st floor, 2^nd floor and 3^rd floor along with undivided proportionate share or interest of land underneath.  Apart from that it was also decided that the owners shall receipt of some of Rs.75,000/- (Rupees Seventy five thousand) only as forfeit money and the developers shall complete the said building within 24 months from the date of sanctioned plan with an extended period of 6 months.  The present Opposite Parties being the owners of the land also executed a registered power of attorney in favour of the Developers.  But the Developers did not handover the owner’s allocation as mentioned in the Development Agreement to the O.Ps even after expiry of 7 years.  The Developers have received the entire agreement as consideration amount from the purchaser and the owners have no liabilities to execute any Deed in question in favour of the purchasers being the Complainant’s herein as because all the liabilities and the duties were entrusted upon the Developers/Promoters after execution of the power of attorney.  The complaint is barred by limitation and the present application is liable to be rejected with an exemplery cost. 

The case is taken up for hearing in presence of both parties.

Having heard both parties and on perusal of materials on record it appears that by dint of the Development Agreement dated 07-02-2012 the Opposite Parties/Land owners have entrusted the Opposite Party Nos.1, 2 & 3/Developers for construction of a new building.  It also appears that subsequently one registered power of attorney was executed by the land owners on 08-02-2012 in favour of the Developers/Promoters.  On the basis of power of attorney the Developers shall have the right to execute, enter into any agreement for sale of the proposed said flats with them in respect of the Developers allocation and to receive earnest money and/or any part payment thereof and on the basis of that power of attorney, an agreement for sale was executed in between the Complainants and Opposite Party Nos. 1 to 3/Developers on 29-10-2014.  As per the said agreement Complainants make payment of Rs.17,69,500/- (Rupees Seventeen lakhs sixty nine thousand & five hundred) only out of total consideration of Rs.24,50,000/-(Rupees Twenty four lakhs fifty thousand).  Complainants have expressed willingness to make further due of the consideration amount.  But in spite of making such an entire huge amount and expiry of stipulated period of time 24 months and up to till date the said flat was not handed over to the Complainants.  Furthermore, the construction work of the subject flat remained incomplete state and the Developers are absconded from the project and the landlords are not allowing Complainants to enter into the project.  Ld. Counsel for the Opposite Parties/Land Owners submitted that the Developers have received the entire amount of Rs.17,69,500/- (Rupees Seventeen lakhs sixty nine thousand & five hundred) only out of total consideration of Rs.24,50,000/-(Rupees Twenty four lakhs fifty thousand) as consideration from the purchaser and the owners have no liabilities to execute any Deed in question in favour of the present Complainants as because all the liabilities and the duties were entrusted upon the Developers/Promoters after execution of the power of attorney.  Moreover, one of the Landowners/Opposite No.7 has already passed away.

Furthermore, the Developers did not even handed over their allocation and not completed the construction work of the subject project and not even paid monthly rent amount to them and the owners have preferred a case being NO. CC/367/2017 before DCDRF, 24 Pgs(S), Alipore alleging deficiency in service against the present Developers.  However, the same was dismissed and another Appeal case being No. A/554/2018 preferred before this Commission and the same was allowed and contested against Opposite Party/Land owners and ex-parte against Opposite Party Nos.1, 2 & 3.  The execution case being No.EA/29/2019 is still continuing. 

It also appears from the scrutiny of materials on record that the Complainants have filed one amended petition of complaint after substitution of the name of deceased Opposite Party and the same was received and accepted by the Commission on 3^rd Nov, 2021.

In a case, 2022 (1) C.P.J, 23 (NC) between Kamal Malhotra Vrs. Parsvnath Developer Ltd. the Hon’ble NCDRC has already decided that the Opposite Party is duty bound to complete the construction within due period of time as per agreement and the Complainant cannot be made wait indefinitely for possession of the flat as the construction is not completed. 

In another decision reported in 2014(3) C.P .R 91 [Smt. V. Kamala & Ors. Vs. K. Rajiv] the Hon’ble National Commission has observed that an internal dispute between the Owner and the builder cannot be considered as a ploy to wriggle out of obligation under agreement and leave the buyer in lurch.  

On evaluation of materials on record it clearly appears to us that Complainants are consumers as defined U/s. 2(1)(d) of C.P Act, 1986 as Complainants hired services relating to housing construction from the Opposite Parties/Developers after making payment of Rs.17,69,500/- (Rupees Seventeen lakhs sixty nine thousand & five hundred) only out of total consideration of Rs.24,50,000/- (Rupees Twenty four lakhs fifty thousand). 

In a case, Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II(2015) CPJ 568 NC] the Hon’ble NCDRC has already decided that “it is the discretion of the Complainant whether he wants to accept of the offer of possession, if any or seek, refund of the amounts paid with reasonable interest, it is held, that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation”.  In the present case the Complainant has prayed for a direction upon the Opposite Parties for delivery of possession of the subject flat and to execute the Deed of Registration of the said flat. 

Moreover, when there is no imminent possibility for construction of the subject flat and there are disputes     prevailing between the Landowners and Developers and Owners have preferred the case the only option remain is to direct the Opposite Parties for an alternative order of refund of amount along with delay compensation.

Since Complainants have established their claim that the Opposite Party Nos. 1, 2 & 3/Developers did not hand over the possession or executed the subject flat even after receiving huge amount of Rs.17,69,500/- (Rupees Seventeen lakhs sixty nine thousand & five hundred) only after expiry of so many years and not even completed the construction of the said subject flat and did not refund the hard earn money of the consumer, we are of the considered view that Complainants may be  allowed with alternative prayer for refund of the entire amount paid by them. 

In view of the above discussion we therefore come to the conclusion that the complaint case No.CC/180/2019 is hereby allowed on contest with the following directions:-

1. Opposite Parties are directed to hand over the possession of the subject flat as per the agreement in habitable condition and to execute the Deed of Conveyance in respect of the same within 60 days from the date of communication of this order.

Alternatively, Opposite Party Nos.1, 2 & 3/Developers are directed to refund Rs.17,69,500/-(Rupees Seventeen lakhs sixty nine thousand & five hundred) only to the Complainants along with delay compensation @9% interest p.a. from the date of actual payment till its realization within 60 days from the date of communication of this order i.d. the amount shall carry interest 12% p.a. from the date of this order till its actual realization.

2. Opposite Party Nos.1, 2 & 3/Developers are further directed to pay Rs.25,000/-(Rupees Twenty five thousand) only as litigation cost.

The Complainants have given liberty to file execution case for non-compliance of the above order.

Let a copy of the Judgment be handed over the parties free of cost.