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Santosh Kumar Shaw v/s Basera Construction & Others

    Complaint Case No. 447 of 2017
    Decided On, 24 May 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    For the Complainant: Barun Prasad, Subrata Mondal, Sovanlal Bera, Advocates. For the Opp. Parties: Sk.Zafar, Debesh halder, Advocate.

Judgment Text
Dipa Sen (Maity), Presidng Member

The instant complaint case filed by the complainant against the OPs. The complainant has stated that the complainant was a tenant of the OP Nos. 4 to 7 (landowners) at premises No. 8, Gopal Doctor Road, Khidirpur Road, Kolkata- 700023. The OP Nos. 4 to 7 being the original landowners has approached to the OP Nos. 1 to 3 (developers) who are partner of the partnership firm namely Basera Construction and expressed their intention to construct a multi-storied building over their land and accordingly entered into a Registered Development Agreement on 09.01.2015 and notarised a general Power of Attorney in favour of the OP developers for construction of a proposed multi-storied building and for sanction of building plan, and to sell the developer’s allocation to the intending purchasers.

The present complainant being an intending purchaser approached the OP No. 1 to 3 (developer) and after being satisfied decided to purchase two flats from the said project of the OP Nos. 1 to 3 for the residence purpose of family members viz. one flat measuring about 599 sq. ft carpet area on the first floor, Southern side at a total consideration amount of Rs. 8,85,000/- and another flat for his old aged mother in ground floor measuring about 259 sq. ft carpet area in North Western Side at a total consideration amount of Rs. 4,14,000/-. Two separate registered agreement for sale dt. 01.07.2015 have been executed between the parties. The complainant has make payment of Rs. 84,800/- and 41,440/- as booking amount for the said above mentioned flat. Subsequently, he has paid amount of Rs. 2,13,800/- against those two flats. As per the said agreement dt. 01.07.2015 the said two flats was supposed to handover within 18 months from the date of agreement i.e. 1st January, 2017 after receiving of the balance consideration amount from the complainant. But the developer delayed the matter with different pre text being frustrated the complainant issued two separate letter to the OP Nos. 1 to 3 for delivery of possession after receiving balance consideration amount but the OP/developer did not consider the request and not deliver the possession or register the said two flats in the name of the complainant. Without getting any other way the complainant compelled to approach before this Commission for redressal of his grievances with several prayers i.e. delivery and registration of the flats along with compensation and cost of litigation.

On behalf of OP No. 1 to 3 (developers) one W/V has been filed whereby they have denied and disputed every allegations made against them. They have stated categorically that the complainant/petitioner was not a tenant under OP Nos. 4 to 7 in respect of any portion of premises No. 8 Gopal Doctor Road, The brother of the present complainant namely Manaj Kumar Shaw was a tenant in respect of above premises and earnest money paid by the petitioner/complainant through cheque to the OP Nos. 1 to 3 were dishonoured. The present complainant did not vacated the tenanted portion and accordingly the development work could not be proceeded with and taking advantage of the situation the complainant/petitioner compelled them to sale the above two flats at below the cost price. The complainant with malafide intention filed complaint to central consumer grievances redressal sale of the Consumer Affairs Dept. with false allegation. The proposed building was constructed within the stipulated period of time and the complainant was informed but the complainant failed and neglected to purchase the said flat on payment of balance consideration amount. Subsequently, on cancellation of agreement for sale this OPs sold and transferred the 1st floor flat and delivered possession to a prospective purchaser Lata Saha on 17.11.2017 at a marketable price. Since the OP has already sold the above flat to a different purchaser the claim of the complainant to purchase the said flat has become redundant and at best the complainant can claim refund of earnest money to which this OP have no objection. The OP has no knowledge regarding the interim order passed by this commission earlier before and not even about the present complaint case. The OP was informed only through the Advocate’s letter /legal notice dt. 01.12.2017 send by the Advocate Subrata Mondal. The OP has denied that the complainant has suffered any monetary loss and are not liable to get compensation in that respect. The flat of the ground floor is in their possession and they are ready to handover the possession of the same to the present complainant. They are not liable for any deficiency of service. No W/V has been filed by OP Nos. 4 to 7 landowner and the case was fixed for ex parte hearing against OP No. 4 to 7.

It appears from the record that one evidence on affidavit has been filed by OP No. 2 and on behalf of OP Nos. 1 and 2 reply to the questionnaire of the complainant also been filed. But at the time of hearing none present on behalf of OP Nos. 1 and 2 as such the case is taken up for hearing in absence of any of the OPs.

The Ld. Advocate for the complainant files BNA and submits that as per the registered agreement dt. 01.07.2015, the OPs were promised to handover the possession of the flat within 18 months from the date of agreement i.e. 1st January, 2017. This is an admitted position that the OP has received 2,13,800/- as an advance consideration amount against the said two flats but as the OP did not consider their request of delivery of the two flats after taking balance consideration amount the complainant compelled to appear before this Commission. One add interim order restraining the OPs from selling alienating or creating any third party interest till 30.08.2017 but the OPs even after knowledge of the said injunction order sold the first floor flat on 17.11.2017 and ground floor flat on 23.08.2017 but the OP Nos. 1 to 3 suppressed sale of ground floor flat in their W.V rather stated that the ground floor flat was unsold. The OPs has violated the injunction order without cancelling the register sale agreement with the complainant and deficiency in service as they did not handover the possession of flats within due period of time in spite of showing willingness of the complainant to make payment of the balance consideration amount and holding the amount paid by him.

The Ld. Advocate for the Complainant submits that as per the observation of Hon’ble Apex Court in India they are entitled to get the present market value of both the flats as the complainant has been deprived by the OPs to get flats. In support of his statement the Ld. Advocate for complainant has referred two cases: (i) 2019 (1) CPR 816 NCDRC (ii) 2018 (2) CRIMS 353 Supreme Court of India.

Heard the Ld. Advocate for Complainant. Perused all documents.

It appears from the record that admittedly one agreement for sale was executed in between the parties on 01.07.2015 and one interim injunction was passed on 22nd June, 2017 thereby restraining the OPs from creating any third party interest in respect of the properties as mentioned in the schedule of agreement dt. 01.07.2015 and on 7th August, 2018 Ld. Advocate for OP Nos. 1 to 3 (developer) has submitted that OPs have sold away the flat as mentioned in schedule ‘A’ by way of deed of conveyance dt. 19.11.2017.

It also appears from the objection filed by the OP(developer) against the IA /386/2018 that they have expressed their desire and willingness to refund the earnest money to the complainant. On scrutiny of records we do not find any whispering of subsequent payment of Rs. 88,000/- by the complainant and in evidence filed by the complainant there is no such averment. As such we cannot consider the subsequent payment of Rs. 88,000/-. From the above all discussion the fact remains that the developer could not able to handover the possession of the flat within the stipulated period of 18 months from the date of agreement i.e. January, 2017 and the offer letter for taking possession of the said flat was not sent to the complainant by that time. The same was informed by the OPs to the complainant through a letter dt. 26.10.2017. Moreover, the OPs did not refund the part consideration amount paid by the complainant and unethically holding the said amount till date. In a case reported in 2018 (2) Crimes 353 (SC) the Hon’ble Supreme Court has already observed that the contractual damage are usually awarded to compensate an injured party to a breach of contract and in that case compensation can be given. If after allotment is made there has been cancellation of scheme without any justifiable cost.

As such we can come to the conclusion that the construction work of the said two flats were not completed and not ready to deliver to the complainant within due stipulated period as per the agreement. Even more, the flats were sold to the 3rd party after unilateral cancellation of the agreement without refunding the consideration amount taken from the complainant and violating the injunction order of this Commission which we consider as a gross deficiency in service u/s 2 (1) (g) of the C.P. Act 1986 in a case reported in 2018 (2) Crimes 353 (SC) that “ there was deficiency in service on the part of the appellants, when they, instead of showing their inability to transfer the property to the respondent, transferred the property to the third party without any explanation.”

On evaluation of materials on record it transpires that the complainant being ‘consumer’ as defined u/s 2 (1) (d) of the C.P. Act 1986 as he has hired the service of the developer after making payment of part consideration amount of Rs. 1,26,200/- in relation to housing construction but the developers failed to fulfil their part of obligations and thereby deficient in rendering service towards that complainant within the meaning of Section

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2 (1)(g) read with section 2 (1)(o). Therefore the complainant is entitled to get some relief. In view of the above discussion and considering the fact of the case the complaint case is allowed on contest against OP Nos. 1 to 3 and dismissed against OP Nos. 4 to 7. Considering the fact of the case (i) The OP (developer) are directed to deliver the physical possession of the flat as per agreement dt. 01.07.2015 and register deed of execution in the name of the complainant within 60 days. Alternatively, the OP has directed to refund of Rs. 1,26,200/- to the complainant within 60 days from the date of judgment; (ii) The OP (developer) are further directed to pay Rs. 7,00,000/- as compensation along with litigation cost of Rs. 25,000/- within 60 days from the date of judgment; The aforesaid amount is required to be paid within 60 days from the date of this order i.d. it shall carry interest @9% p.a. from the date of this order till the date of actual payment. Accordingly, IA/386/2018 is also disposed of as infructuous at this stage.