Final Order / Judgement

Date of Filing             :    05 January, 2023.

Date of Judgement    :    16 January, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case has arisen when Complainant filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against the Opposite Party or OP, alleging deficiency in service occurred from the part of the OP arising out of non-execution of the sale agreement and non-delivery the flat purchased by complainant within stipulated time.

            The complaint, along with the annexed documents, tells us, if brief, that the complainant entered into an Agreement for Sale with the OP, the developer, on 19/02/2020 intending to purchase a residential flat of area 300 sq ft including super built-up area at the second floor in a multi-storied building going to be constructed by the OP/developer in the premises at 28/2, Kanta Pukur Lane, P.S.- Bantra, Howrah-711 101, comprising of area of 1 Cottah 13 Chittak 05 sq ft, for a total consideration of ₹7,80,000/-. According to this sale agreement the developer, Santosh Kumar Jha, promised to deliver the second floor 300 sq ft residential flat within 18 months from the date of signing this agreement.  Complainant alleged that the developer could not construct the building beyond G+2 floor, even it was incomplete.  He has paid ₹3,18,000/- to the OP/Developer as an earnest money, but the OP failed and neglected to deliver the possession of the scheduled flat to the complainant.  He repeatedly requested the OP to hand over possession of his purchased flat as early as possible but his requests went unfulfilled and ultimately the OP refused to deliver his desired flat.  He then sent a notice through his learned lawyer to the OP on 26/12/2022 requesting the OP to hand possession of his flat within 7 days from receipt of the notice, but this time also this notice yielded no fruitful result. Ultimately, finding no other alternative, complainant filed this instant complaint before this Commission praying to direct the OP to: (i) hand over the scheduled flat of 300 sq ft to the complainant with document of possession, (ii) either to deliver the flat or to refund the earnest money of ₹3,18,000/- paid by him with interest, (iii) an award of a compensation of ₹8,00,000/- for causing mental pain and agony by the OP, (iv) to pay the interest on decreetal amount till recovery, (v) litigation cost and any other relief/reliefs to which the complainant may be found entitled to.

            Complainant filed copies of (i) the undated Agreement for sale executed in August, 2019 which was notarised on 19/02/2020, (ii) two Money Receipts issued by one M/s. Shubham Realtors on 04/09/2019 & 13/11/2020 for payment of ₹3,18,000/- & ₹1,00,000/- respectively and (iii) the lawyer’s notice dated 26/12/2022 issued on behalf of the complainant as annexure to the complaint petition.

            Notice was served upon the OP after admission to appear and contest the case by filing written version.  OP appeared through his learned lawyer and filed a petition praying time for filing the written version, but afterwards failed to file any written version within the stipulated time period for which the case proceeded ex parte.  Then the complainant filed his Evidence on Affidavit. Ultimately argument was heard in full and the complainant filed his Brief Notes on Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OP is deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.

DECISION WITH REASONS

           1.    When we go through the statement of the complaint petition we find that the complainant stated that by virtue of a registered development agreement executed between the land owners and the developer/OP on 05/09/2019 for construction of a multi-storied building in the premises at 28/2, Kanta Pukur Lane, Bantra, Howrah-711 101, the OP was going to construct a G+4 storied building. The complainant then entered into an undated Agreement for Sale in August, 2019 which was notarised on 19/02/2020 with the OP/developer intending to purchase a 300 sq ft flat including super build-up area at the second floor.  The consideration for such purchase had been fixed at ₹7,80,000/-.  

            2.         In Paragraph-4 (Para-4) of the complaint the complainant stated that: “the opposite party (developer/OP) undertook to make construction of a G+4 storied building but there was sanction of G+1 or two storied building ….. ”.  In Para-5 complainant stated that: “the opposite party has already commenced the work of construction before the commencement of Covid-19 and the opposite party has already started work of construction in the month of May/June, 2019 ….” (Emphasis provided). But the development agreement was executed on 28/10/2015 as is written in the second page of the agreement for sale, whereas the developer/OP has started construction where building plan was sanctioned for a G+1 storied building vide Plan No. BR-167/B-VII/2018-19 (Page-3 of the sale agreement) and the complaint stated that the OP was entrusted to construct a G+4 storied building thereon.

            3.         In Para- 6 the complainant stated that as the subject/suit property “was the complainant’s residential unit they are to vacate their residential unit ……  while it was agreed by the opposite party that he will bear all the expenses for shifting  ….   and the opposite party will pay all expenses to the complainant till they are reinstated within the newly constructed premises.” (Emphasis provided)

            4.         Complainant stated that he has paid ₹3,18,000/- as earnest money out of total consideration of ₹7,80,000/-.  He has annexed two Money Receipts issued by one M/s. Shubham Realtors to the complainant.  We cannot find any relation of this realtor with the present complaint except it that these receipts have been issued after receiving payments in respect of the subject flat.  One receipt was issued on 04/09/2019 for payment of ₹3,18,000/-  paid through cheques bearing Nos. 71311 & 71312 (dates not mentioned).  Another receipt was issued on the date which at first was overwritten and strike-out and then written as 13/11/2020.  This receipt was issued after receiving ₹1,00,000/- through cash.  But the complainant has not mentioned in the complaint, nor did his learned lawyer.

            5.         When we go through the undated Agreement for Sale, which was notarised on 19/02/2020, we see that in Page – 2 it is written as: “WHEREAS by virtue of a registered Development Agreement dated 28/10/2015 ………  and executed by and between the First Party and the Land Owners, namely Sunit Kumar Sarkar & Sujit Kumar Sarkar,  …..”, whereas in Page – 3 of this agreement it is written as: “AND WHEREAS the Purchaser herein being one of the above mentioned owner…..”  (emphasis provided). These statements tell us that the Complainant is the land owner who intended to purchase a 300 sq fr flat at the second floor in the building which was being constructed by the OP.  The complainant has never mentioned in his complaint petition that he is the land owner of the subject premises, but mentioned that he was the resident at the premises.  The complainant has not annexed copies of the Development Agreements dated 28/10/2015 & 05/09/2019 though he is one of the land owners who was a part of execution of these development agreements.

            6.         At this point we take note of the fact that the complainant has filed another consumer complaint jointly with Sri Sujit Kumar Sarkar, being the joint land owners, which was registered in this Commission as CC/6/2023 and this complaint has been dismissed ex parte with no cost. 

            Under such circumstances as discussed herein above it is evident that the complainant is a ‘consumer’, as defined under Section 2(7) of the C. P. Act, 2019, who availed the ‘service’, as defined under Section 2(47) of the Act, of the OP.  The OP is the service provider, who failed to provide the promised service as is written in the undated Agreement for Sale of August, 2019.  As the OP did not contest the case we have no contrary material to counter or rebut the complaint. Complainant prayed to direct the OP to hand over the scheduled flat of 300 sq ft to the complainant with document of possession, but has not mentioned that he should have to pay the balance consideration during delivery or registration of the flat. At this point we think, considering the fate of the Consumer Complaint being No. CC/6/2023 as stated herein above, we have no alternative but to direct the OP to refund the amount paid by the complainant, whether it is ₹3,18,000/- or ₹4,18,000/-,  together with interest at the rate of 10% per annum with effect from the date of receipt till realisation which will serve as compensation.  Complainant is entitled to get ₹5,000/- as litigation cost as he is compelled to knock at the door of this Commission to get his complaint redressed.

            Hence, it is

ORDERED

            That the complaint Case No. CC/7/2023 be and the same is partly allowed ex parte.

            The Opposite Party is directed to refund to the complainant the entire consideration paid by the complainant together with a simple interest @10% per annum from dates of receipts till the date of this order.  The Opposite Party is also directed to pay ₹5,000/- as litigation cost to the complainant.

            The above directives should be complied by the Opposite Party within 45 days from the date of this order failing which the entire sum shall carry 10% interest till full and final realisation.

            Let a copy of this order be issued to both the parties free of cost.

Dictated and corrected by me

            Member.