Debobrata Naskar vs Bidyut Addya & 8 Ors

M. Shreesha, J

Aggrieved by the order dated 30.11.2016 in Consumer Complaint No. 259 of 2015 passed by the West Bengal State Consumer Disputes Redressal Commission, New Delhi (in short "the State Commission"), the first Opposite Party namely, Debobrata Naskar and the second Opposite Party namely, Sayanti Dutta preferred First Appeal Nos. 685 of 2017 and 1127 of 2017 respectively. By the impugned order, the State Commission has allowed the Complaint in part directing first and second Opposite Parties to refund the amount of ₹12,50,000/-, pay compensation of ₹10,00,000/- and costs of ₹10,000/- within 30 days from the date of the order failing which the amount shall carry interest @ 12% p.a. from that date till its realization. The case against Opposite Parties No. 3 to 8 was dismissed.

Since both these Appeals are arising out of a common impugned order, they are being disposed of by this common order.

The facts in brief are that the Complainants entered into an Agreement with the Opposite Parties on 11.05.2011 for purchase of a flat admeasuring 739 sq. ft. on the second floor at premises No. 56, Jadavgarh, P.S.-Kasba, Kolkata for a total sale consideration of ₹12,25,640/- @ ₹1300 per sq. ft. It was averred that the Complainants paid an amount of ₹50,000/-by cash to the first and second Opposite Parties and subsequently in the month of October, 2011 the parties agreed to enhance the size of the flat and the rate from ₹1300 per sq. ft. to ₹1600 per sq. ft. the size of the flat was also agreed to be increased from 739 sq. ft. to 961 sq. ft. on the first floor for a total sale consideration of ₹20,37,120. It was stated that the advance amount of ₹12,75,000/- was paid to the first and second Opposite Parties on different dates. In the Agreement it was stated that the developer would hand over the subject flat within 12 months from the date of Agreement for sale. Despite repeated requests, the sale deed was not executed and therefore the Complainant approached the State Commission seeking direction to the Opposite Parties to execute the sale deed after receipt of the balance sale consideration or refund the amount of ₹12,75,000/- with interest @ 12% p.a., compensation of ₹10,00,000/- and costs of ₹50,000/-.

Despite service of notice, Opposite Parties No. 2 to 8 did not appear before the State Commission and they were set ex parte. The first Opposite Party presented their case stating that the construction of the flat in question has already been completed and they are ready to hand over the same on receipt of the balance sale consideration. Complainants filed their Affidavit by way of evidence in support of their case. The State Commission based on the evidence adduced allowed the Complaint in part with the aforenoted directions observing as follows:

"The evidence on record also suggests that complainants have already paid Rs. 12,50,000/- as part consideration amount out of total consideration of Rs. 20,37,120/-. In accordance with the terms of the agreement the developer could not hand over the subject flat within 12 months as mentioned in the agreement. It was also stipulated that the balance amount will be paid at the time of taking possession by the complainants and as such the complainants did not commit any fault to fulfil their part of the obligations. Unfortunately, the developers could not keep their commitment. In this regard, the complainants run from pillar to post for redressal of their grievances. The submission of the Ld. Advocate that the developer is ready to hand over the flat could not inspires us because the complaints have made several correspondences with the developer and ultimately prayed for return of money by their letters dated 25.03.2013 and 19.11.2013 but those remain unattended.

In the agreement, it was agreed that if the developer failed to hand over flat within the specified period, the developer will return the full amount which already paid.

Therefore, it is abundantly clearly that the developer was deficient in rendering service to the complainants in accordance with the provisions of Section 2 (1)(g) read with Section 2(1) (o) of the Act.

In a decision referred by the Ld. Advocate by the complainants reported in 2015 (2) CPR 540 ( M/s. Utopia Projects Pvt. Ltd. - vs. - Shahin B. Mulla ) the Hon'ble National Consumer Commission has held that if possession has not been given as per committed date, purchaser of flat has the right to demand refund of amount paid with interest and compensation."

Learned counsel appearing for the Appellant/ first Opposite Party in FA/685/2017 contended that the State Commission has not taken into consideration that the Complainants are not interested in taking the possession of the flat but only interested in taking the refund and compensation though the flat in question is ready for delivery. Despite making the repeated requests, the Complainant never came forward for taking the delivery of the said flat and therefore no deficiency of service can be attributed to them.

Learned counsel appearing for the Appellant/ second Opposite Party in First Appeal No. 1127 of 2017 vehemently contended that the Complainant did not pay the consideration as per the Agreement for sale and as such they are defaulters; the developer had completed the construction and handed over the possession to the land owners, who were arrayed as Opposite Party No. 3 to 8; no evidence has been filed by the Complainants to substantiate their contention that the building was incomplete and further the State Commission had grossly erred in arbitrarily awarding compensation of ₹10,00,000/- without any cogent reasons.

The facts not in dispute are that the Complainants entered into an Agreement for sale with the first and second Opposite Parties for 739 sq. ft., which size was later enhanced to 961 sq. ft. and rate of ₹1300 per sq. ft. was also enhanced to ₹1600 per sq. ft., the total sale consideration being ₹20,37,120/- as per subsequent Agreement entered into in October 2011. It is an admitted fact that the Opposite Parties No. 3 to 8 are co-owners, who entered into a development Agreement with the Developers on 01.12.2018 to raise four storied building.

Having examined the receipts, the State Commission was satisfied that an amount of ₹12,50,000/- was paid towards sale consideration out of the total amount of ₹20,37,120/-. A brief perusal of the terms of Agreement shows that the Developer ought to give the possession within 12 months from the date of Agreement which has since lapsed. It is clearly stated in the Agreement that the balance amount would be paid at the time of handing over of the said flat; that the deed of finance would be executed in favour of the purchaser after completion of the full payment by the purchaser; that if the Developer failed to hand over the flat in the specified time then he had to refund the entire amount already paid. Admittedly, the Developer could not complete the construction and hand over the possession by October 2012. The material on record depicts that the Complainant had written letters dated 25.03.2013 and 19.01.2013 seeking refund of the money paid, for which there was no response. In First Appeal No. 685 of 2017, preferred by Sri Debobrata Naskar, this Commission vide order dated 15.11.2017 directed the Appellant to deposit an amount of ₹12,50,000/- with the State Commission which will be kept in an FDR and stayed the operation of the impugned order. The office report states that the proof of deposit has not been filed. In First Appeal No. 1127 of 2017, preferred by Smt. Sayanti Dutta, this Commission vide order dated 28.07.2017 the operation of the impugned order was stayed subject to deposit of ₹12,50,000/- with the State Commission. It was clarified that the same has since been deposited.

Having regard to the fact that the Developer did not adhere to the terms of the Agreement with respect to completion of the subject flat on time and there is a specific condition that the balance amount shall be paid at the time of handing over of the flat, the Complainants cannot be construed to be defaulters for the simple reason that the flat had not yet been handed over to them, prior to the filing of the Complaint, therefore the contention of both the Appellants that the Complainants are defaulters does not hold any water. Hence, we do not find any reason to interfere with the findings of the State Commission with respect to deficiency of service on behalf of the Appellants in Both the Appeals and also with respect to refund of the amount deposited by the Complainants with the Appellants herein. However, we are of the view that instead of awarding a lump sum amount of ₹10,00,000/- towards compensation, simple interest @ 10% p.a. from the respective dates of deposit till the date of realization would meet the ends of justice. As interest is being awarded by way of damages, we do not find it a fit case to award additional compensation. Since there is a specific submission from the learned counsel for the second Opposite Party that an amount of ₹12,50,000/- was deposited before the State Commission, needless to add, this amount along with the accrued interest shall stand deducted from the decretal amount and the same shall be released to the Complainants. Since their liability is joint and several the balance amounts shall be paid within four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @ 12% p.a.

With the aforementioned modifications both these Appeals are disposed of. The costs awarded by the State Commission also stands confirmed. The statutory amount deposited in First Appeal No. 685 of 2017 stands transferred to Consumer Legal Aid Account and the statutory amount deposited in First Appeal No. 1127 of 2017 shall be released to the first Complainant.