Date of filing : 19.12.2017
Judgment : Dt.31.10.2018
Mrs. Balaka Chatterjee, Member.
This petition of complaint is filed U/s. 12 read with Section 13 of the Consumer Protection Act, 1986 by Smt. Mala Devi alleging deficiency in service on the part of the Opposite Parties ( referred as OP hereinafter ) namely (1) Smt. Lakshmi Chakraborty (2) Sri Pradip Saha of M/s. Sushovan Constriction.
Facts, in brief, are that the OP No.1 is the absolute owner of a piece of land being premisesNo.7A , Sodepur Road, P. S., formerly Thakurpukur, now – Haridevpur, Kolkata – 700 082, K.M.C. Ward No.122, District – South 24 – Parganas and being desirous to exploit the property commercially by constructing a G + 3 storied building thereon entered into a Registered Development Agreement on 16.08.2013 with the OP No.2 , sole proprietor of OP No.3 and accordingly executed a General Power of Attorney in favour of the OPNo.2. The complainant has stated that being informed that a flat measuring about 750 sq.ft. consisting of two bed rooms one dinning space, one kitchen , two toilet was ready for sale she approached the OP /Developer and an Agreement for Sale was executed on 15.02.2014 in respect of the flat in question at an agreed consideration amount of Rs. 14,50,000/- and the complainant paid an amount of Rs. 13,50,000/- towards earnest money. The complainant has further stated that as per Agreement for Sale dt. 15.02.2014 the developer was to handover the flat in question on or before within March ,2015 but the OPNo.2 failed and neglected to handover possession of the said flat and execute registration of the Deed of Conveyance and finding no other alternative the complainant made several request to the OP No.2 for relief and lastly on 22.06.2017 sent a legal notice through her Ld. Advocate and, further, husband of the complainant lodged a written complaint with Haridevpur P. S. but that too went in vein which led the complainant to approach the Asstt. Director, Central Consumer Grievance Redressal Cell but grievance had not been resolved due to non-cooperation of the OP No.2. It is further stated by the complainant that she had her flat measured by an LBS namely Sri Debashish Guha and came to know that covered area of the said flat was only 495 sq\.ft along with 63 sq.ft. stair case and 20% super built up area which come to 670 sq.ft. 80 s.ft. less than 750 sq.ft. Being aggrieved the complainant by filing the instant consumer complaint prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the complainant on receiving balance consideration amount, to pay Rs. 1,00,000/- towards compensation and Rs. 50,000/- towards cost of litigation and to pay back brokerage amount of Rs. 30,000/- which was paid to the broker Shyamal Das.
The complainant annexed photocopies of Development Agreement dt. 16.08.2013 . General Power of Attorney dt. 16.08.2013, Letter dt. 26.07.2017 issued by the complainant to the Asstt. Director, Central Grievance Redressal Cell , Agreement for Sale dt.15.02.2014, Money receipts dt.15.02.2014, copy of complaint lodged by the husband of the complainant with Haridevpur P. S. Advocate’s letter dt. 22.06.2017, Photocopy of prescription dt. 24.03.2017, Site Plan.
Notices were served but the OPs did not turn up so the case was fixed for ex-parte hearing vide order no.5 dt.23.02.2018.
The complainant adduced evidence and reiterated the facts mentioned in the petition of complaint.
Decision with reasons
The Complainant claimed to have entered into an Agreement for Sale with OP No.2 in respect of a flat and paid Rs. 13,50,000/- towards consideration out of total consideration of Rs. 14,50,000/-. In support of such claim the complainant has filed copy of Agreement for Sale and Money receipts dt. 15.02.2014 wherefrom it appears that an Agreement for Sale dt. 15.02.2014 was executed by and between the complainant and the OP No.3 through OP No.2, the Sole Proprietor of OP No.3 in respect of a flat mentioned under the Schedule ‘B’ of the said agreement at a consideration of Rs. 14,50,000/- . It further appears from memo of consideration and Money receipt dt.15.02.2014 that the complainant paid an amount of Rs. 13,50,000/-.
The complainant has claimed that she through her Ld. Advocate requested the OP Nos.2 & 3 to perform his contractual obligation. Advocate’s letter dt. 22.06.2017 supports such contention of the OP.
On perusal of documents on record it appears that a registered Development Agreement was executed by and between the OP No.1 and OP No.3 being represented by its Sole proprietor OP No.2 by virtue of which the OP No.2 & 3 were entitled to construct a multi – storied building and to dispose of Developer’s allocation. It further appears from the Development Agreement that the Owner’s will get 50% of constructed area i.e. entire 2nd floor and another one flat on the third floor back side and 50% car parking space on the ground floor of the proposed building and balance 50 % of constructed area belongs to Developer’s allocation. It is, therefore, clear that the flat in question which is on the first floor of the proposed building has been allocated to the Developer and by virtue of General Power of Attorney dt.16.08.2013 the Developer is empowered to dispose of his allocated portion.
On perusal of Agreement for Sale dt. 15.02.2014 it appears that the flat in question was to have been delivered to the complainant within March’ 15 but the OP Developer failed to deliver the same which amounts to deficiency in service and therefore, the complainant is entitled to get relief.
The complainant has prayed for direction upon OPs to execute and register the Deed of Conveyance in favour of her. Since the complainant paid Rs.13,50,000/- towards consideration amount to the OP Developer and entered into an Agreement for Sale therefore there is no ground to disallow such prayer.
The complainant prayed for compensation. It is evident that the flat in question was to have been delivered by March 2015 but inspite of receiving request from the end of the complainant the OP did not do anything which caused harassment to the complainant.
In our view, it will be just and proper if Rs. 50,000/- is allowed towards compensation.
The OPs compelled the complainant to file the instant case so they are liable to pay litigation cost.
Regarding prayer d we think there is no ground to allow such prayer for direction to pay back brokerage amount. Since no documents have been annexed in this respect by the complainant. Moreover, no such clause has been mentioned in the Agreement for Sale and the broker Shyamal Das has not been made a party to this case.
In the result, the consumer complaint succeeds in part.
Hence,
ORDERED
That CC/703/2017 is allowed in part ex-parte.
The OPs are directed to execute and register the Deed of Conveyance in favour of the complainant within three months from the date of communication of this Order to them on receiving balance consideration amount of Rs.1,00,000/- to be paid by the complainant.
The OPs are further directed to pay Rs.50,000/- towards compensation and Rs.10,000/- towards cost of litigation within the aforesaid period failing which the entire amount shall carry interest @ 7% p.a till realisation in full.
