SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts necessary for disposal of this case are that OP-1 is a building contractor who had entered into an Agreement with the OP-2 land owner of Premises No. 162, Netaji Nagar Colony, P.S. Tiljala, Kolkata-700100 for construction of a G+ 3 storied building in the said premises. Complainants entered into an Agreement for Sale dated 19.04.2014 with the OP-1 for purchase of a self contained flat measuring about 700 sq. ft. more or less super built up area on the 3rd floor of the proposed G+ 3 storied building at a total consideration of Rs. 12,25,000/-. Out of total consideration Complainants have already paid Rs. 10,20,000/- to the OP-1 by cheques as well as cash against acknowledgment/ money receipts. The OP-1 did not handover the possession of the subject flat to the Complainants though he assured to handover the possession, execution and registration of the flat to the Complainants within a short span after receiving the balance consideration amount. Finding no other alternative, the Complainants wrote a letter dated 03.02.2018 to the OPs requesting them to deliver possession, execution and registration of the Deed of Conveyance of the subject flat within three days from the date of receipt of the said letter. Such letter was unattended. The OPs deliberately adopting unfair trade practice and trying to deprive the Complainants from their lawful right. Hence, the Complainants have approached this Forum by way of consumer complaint seeking reliefs as prayed for.
The OP-2 has contested the case by filing Written Version challenging the maintainability of the case on various grounds. The specific case of the answering OP is that the Complainants entered into an Agreement for Sale dated 10.04.2014 with the OP-1 for purchase of the subject flat from the allocation of the Developer and made payment to the OP-1. The answering OP executed a Power of Attorney in favour of the OP-1 authorized and empowered him to act on his behalf in terms of Agreement for Construction dated 29.11.2013. Thus, the answering OP has no liability for non delivery of possession, execution and registration of the subject flat. The dispute in question is in between the Complainants and OP-1. There is no deficiency in service on the part of the answering OP. The OP-2 has prayed for dismissal of the Complaint. In this context, it is pertinent to mention here that after filing W.V. the OP-2 did not take part in the trial.
In spite of service of notice OP-1 did not turn up to contest the case. As such, the case has proceeded exparte against the OP-1.
Decision with Reasons
Complainants have tendered e-chief though affidavit. They have also filed Brief Notes of Argument. We have examined the entire material on record and also given a thoughtful consideration to the argument advanced by the Ld. Advocate for the Complainants.
Fact remains that OP-2 is the owner of Premises No. 162, Netaji Nagar Colony, P.S. Tiljala, Kolkata and he had entered in to an agreement dated 29.11.2013 with the OP-1 for construction of a G + 3 storied building in the said premises. Pursuant to the said agreement dated 29.11.2013 the OP-1 had entered into an Agreement for Sale dated 19.04.2014 with the Complainants for sale of a self contained flat measuring about 700 sq. ft. more or less super built up area on the 3rd floor of the proposed building together with all common facilities annexed with the Premises No. 162, Netaji Nagar Colony, Tiljala, Kolkata within the local limits of Ward No. 108 of the Kolkata Municipal Corporation at a total consideration of Rs. 12,25,000/-. It is not disputed that the Complainants had already paid Rs. 10,20,000/- on diverse dated to the OP-1 against acknowledgement/ receipts and a balance amount of Rs. 2,05,000/- is due and payable by the Complainants in favour of the OP-1. The Subject flat is the portion of Developer’s Allocation. The physical possession of the subject flat has not been given to the Complainants after receiving balance consideration amount. Even the OPs failed and neglected to execute and register Deed of Conveyance of the Subject flat to the Complainants though the OP-2/ land owner in his W.V. has claimed that he executed a Power of Attorney in favour of the OP-1/Developer authorized & empowered him to act on his behalf in terms of the Agreement for Sale dated 29.11.2013. The OP-2 did not file copy of the said power of Attorney to establish his claim.
On bare perusal of the Agreement for Sale dated 29.11.2013 we find that the agreement was executed between the Complainants and OP-1/ Developer in respect of the subject flat and the Complainants have already paid Rs. 10,20,000/- to the OP-1 against acknowledgement/ receipts out of total consideration of Rs. 12,25,000/-. It is obligatory duty of the OP-1 to fulfill the terms and conditions of the Agreement for Sale, he cannot be excused in this regard. In our opinion failure to deliver possession of the subject flat and to execute and register Deed of Conveyance in favour of the Complainants by the OP-1 tantamount to deficiency in service. The OP-2/ landowner also failed to produce copy of Power of Attorney to establish his case that he has empowered the OP-1 to act on his behalf in terms of the Agreement for Sale dated 29.11.2013. Therefore, the OP-2 cannot bypass his liability. In our opinion, there is deficiency in service on the part of the OP-2 also. Even the letter dated 03.02.2018 of the Complainants addressed to the OPs is also unattended. Had the OPs been seriously interested to handover possession, execute and register the subject flat in favour of the Complainants then it would not be for the Complainants to take Shelter of the Forum by taking trouble. Since, coming to the Forum is not a fashionable game for an individual rather every one tried to avoid legal complications by coming to a Court of Law, taking all hazards unless they are otherwise compelled to come to the Forum.
The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. This spirit of the benevolent legislation cannot be overlooked as its object is not to be frustrated. The Complainants have made payments of Rs. 10,20,000/- out of total consideration of Rs. 12,25,000/- to the OP-1 with hope to get possession of the subject flat in a reasonable period. The Act and Conduct of OP-1 is a clear case of deception, which resulted in the injury and loss of opportunity to the Complainants. Had the Complainants not invested their money with the OP-1, they would have invested the same elsewhere. The Complainants have suffered mental agony and harassment. It is settled principle of law that the compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The OP-1 being the Developer is bound to compensate for the loss and injury suffered by the Complainants for failure to deliver possession of the subject flat. So, it has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the Complainants have to wage a long drawn and tedious legal battle. In these circumstances, the Complainants are entitled to get relief as prayed for.
In the result, the case succeeds.
Hence,
ORDERED
That the Complaint case be and the same is allowed ex parte against the OP-1 with litigation cost of Rs. 5,000/- (Rupees Five thousand) only and allowed on contest against the OP-2 without any litigation cost.
The OP-1 is directed to hand over 700 sq. ft. more or less super build up area on the 3rd floor of the building situated at Premises No. 162, Netaji Nagar Colony, P.S. – Tiljala, Kolkata to the Complainants within 30 days from the date of this order and the OPs are further directed to execute and register Deed of Conveyance in favour of Complainants within 15 days from the date of delivery of possession. Complainants are directed to pay the balance consideration amount of Rs. 2,05,000/- to the OP-1 on the date of execution and registration of the Deed of Conveyance. We make it clear that the cost of such registration shall be borne by the Complainants. In default of the OPs, the Complainants are at liberty to take recourse of the machinery of the Forum for execution and registration of the Deed of Conveyance.
Alternatively the OP-1 being the Developer is directed to refund Rs. 10,20,000/- (Rupees Ten lacs Twenty thousand) only to the Complainants within 60 days from the date of this order along with litigation cost.
The OP-1 is further directed to pay Rs. 50,000/- (Rupees Fifty thousand) only for causing mental agony and harassment to the Complainants within the stipulated period.
Liberty be given to the Complainants to put the order in execution, if the OPs transgress to comply the order.
