Sree Sree Partha Sarathi Developers & 4 Ors. vs Taniya Roy

Prem Narain, Presiding Member

This appeal has been filed by the appellant Sree Sree Partha Sarathi Developers and 4 Ors challenging the order dated 03.07.2017 passed by the West Bengal State Consumer Disputes Redressal commission Kolkata (in short the State Commission) in consumer complaint No. 10 of 2014.

Brief facts of the case are that the appellant No.1 is the developer and No.2 is the proprietor of the appellant No.1 and appellants 3-6 are the land owners. The developers and the landowners entered into a development agreement dated 7th March 2005. An agreement for sale was executed by all the appellants jointly with the respondent complainant for a self-contained flat admeasuring 904 square feet in the said premises on 4th December 2007. The total consideration for the flat was Rs.11,97,800/- but the complainant paid an amount of Rs.19,50,000/-. On 15th September 2009, the appellant No.1 authorized M/s Trinity Associates (its agent) to complete the construction of the building. As per the agreement for sale, the opposite parties were to give the possession of the flat by 30th April 2009. There was also provision in the agreement that for the late period the opposite parties shall compensate the complainant @Rs.3,500/- per month. The complainant has alleged in the complaint that the opposite parties failed to complete the construction and to hand over the possession in the promised time. It was also alleged that the developer enhanced the price to Rs.19,88,800/- on the ground of revision in the sanctioned plan thereby resulting in increase in super area. The complainant alleged that no revision of the sanctioned plan took place. The complainant requested for direction to the opposite parties to hand over the possession of the flat and to refund the excess amount paid to the developer as well as compensation for mental agony and cost of litigation. The State Commission allowed the complaint and directed the opposite parties to deliver the possession and to execute the sale deed in favor of the complainant on the receipt of the balance amount of Rs.38,000/- by the complainant. The State Commission further directed OP1 and 2 to pay Rs.1.00 lakh and OP 3 to 6 to pay Rs.1.00 lakh as compensation to the complainant. Similarly Rs.10,000/- was to be paid as cost by OP1 and 2 and Rs.10,000/- by OP 3 to 6.

Aggrieved by the order of the State Commission, the OPs have filed the present appeal.

Heard the learned counsel for the parties and perused record. The learned counsel for the appellants stated that even though there was no deficiency in service on the part of the opposite parties, the State Commission has ordered a compensation of Rs.2.00 lakhs along with interest @9% per annum and also the cost. It was argued that the complainant was a defaulter and did not pay the balance amount as per the agreement. As per paragraph six of the agreement, the possession can only be handed over when all the payments are complete. It was further stated that as per paragraph 9 of the agreement, if the amount is not paid, the developer can rescind the agreement. Thus, in no way, the complainant deserves any compensation as she herself was defaulter and did not deserve the possession of the flat as per the provisions of the agreement. The learned counsel further stated that Rs.3,30,750/- has been paid by the complainant to M/s Trinity Associates without any information to the opposite party one and two. The State Commission has not considered these aspects while deciding the consumer complaint.

On the other hand, the learned counsel for the respondent complainant stated that the complainant has paid more than the consideration of the flat to the opposite parties, however, the opposite parties have not delivered the possession to the complainant though all the appellants/opposite parties are party to the agreement to sell. The compensation for delay in handing over the possession could be much more, however, the State Commission has only awarded Rs.2.00/- lakhs as compensation which is quite reasonable. Similarly, a modest cost of litigation has only been awarded by the State Commission. M/s Trinity Associates is the agent of opposite party No.1 and 2 and therefore, there was no illegality if some amount was paid to them. The complainant had demanded refund of about Rs.7.00 lakhs which had been paid in excess of the consideration of the flat, however, the State Commission has not passed any order on this request of the complainant. Complainant is interested in getting the possession of the flat and therefore complainant has not filed any appeal against the order of the State Commission.

I have carefully considered the arguments advanced by both the sites and examined the record. The basic fact is that all the appellants/opposite parties entered into an agreement to sell with the respondent complainant in respect of a flat in the said building which was being developed by the developer and the landowners under the development agreement. Thus, no appellant can deny the agreement to sell. The complainant has also paid an amount of Rs.19,50,000/- to the opposite parties and therefore, as per the agreement to sell, the complainant is entitled to get the possession of the flat as well as some compensation for delay in possession. So far as paragraph 6 and paragraph 9 of the agreement are concerned, the State Commission has already ordered that complainant will pay the balance amount of Rs.38,000/- to the opposite parties. The only ground for consideration can be that this amount was required to be paid much earlier but has not been paid, therefore, the complainant is required to pay this amount along with interest at the rate 9% per annum from the date when it was due. Clearly, complainant is entitled to get compensation for delay in possession and therefore I do not find any illegality or abnormality in respect of the order of the State Commission awarding Rs.2.00 lakhs as compensation as also the cost of litigation.

Based on the above discussion, I do not find any force in the present appeal except that the complainant will pay the balance amount of Rs.38,000/- with interest at the rate of 9% per annum from the date when this amount was due as per the agreement. With this modification, the order of the State Commission is upheld. Appeal No. 1638 of 2017 stands disposed of.