IMPORTANT POINT
Service Provider cannot avoid their contractual obligation towards the complainants on account of their inability to acquire such right, title and interest.

ORDER

V.K. Jain, Presiding Member

The complainant/respondent no.1 & 2 alongwith Late Ms. Mohini K. Pursnani, entered into an agreement with respondent no.3 M/s Shubham Builders & Developers, where-under a bungalow in a project namely ‘Serene County’ which respondent no.3 was to construct, was to be constructed and sold to them for a consideration of Rs.48,96,000/-. An agreement between the above referred persons was executed in this regard on 13.03.2009. Since the bungalow was not constructed in terms of the said agreement, the appellant and respondent no.4 came into picture and executed an MOU on 29.06.2013, whereby they undertook to execute the work and complete the construction at their cost, in accordance with the sanctioned plan, within six months from the date of commencement certificate to be obtained and/or from the date of construction. The MOU was executed between the complainants and Ms. Mohini K. Pursnani acting through their Attorney Sh. Ashok Chotrani as the first party and the appellant and Mr. Bharat Babulal Jain as the second party. Ms. Mohini Pursnani had died before the said MOU came to be executed. Therefore, the Power of Attorney in favour of Mr. Ashok Chotrani was valid only to the extent he was authorized to act on behalf of the complainants. Clause 6, 9 & 12 of the MOU to the extent they are relevant, read as under:

6. The Party of the Second Part hereby agree and undertake to execute, carry out and complete the construction work of the existing respective Row Hoses/Twin Bungalows is to be provided to them at the entire cost of the Party of the Second Part in accordance with the plan as may be approved and sanctioned by concerned Authorities within 6 (six) months from the date of commencement certificate to be obtained and/or from the date of Construction.

It is agreed by the Developers that the project should be completed within 6 months from the date of commencement certificate to be obtained and/or from the date of Construction and acquiring all the rights, title and interest of said partnership firm i.e. M/s Shubham Builders and Developers.

9. The Party of the Second Part is hereby expressly agreed, declared and confirmed that the Party of the Second Part is entitled to enter into agreement with the other purchaser for the sale in respect of the unsold and balance Row Hoses/Twin Bungalows/Units (whose name is not in the list at Exhibit – A hereof) to be constructed by the Party of the Second Part in the said property as per the terms and conditions between them.

12. The Party of the Second Part is hereby expressly agreed, declared and confirmed that they shall pay the Escalation Charges of Rs.250/- per sq. ft. i.e. amount of Rs.6,40,000/- to the Party of the Second Part on execution of these presents.

Admittedly, a sum of Rs.6,40,000/- over and above the amount paid to M/s Shubham Builders & Developers was paid to respondent no.4 Mr. Bharat Babulal Jain. The said payment is stated to have been made from the joint account of complainant no.2 Ms. Bharti Pursnani and Late Ms. Mohini Pursnani. The construction of the bungalow having not been completed, the complainants approached the concerned State Commission by way of a Consumer Complaint, impleading the appellant, Mr. Bharat Babulal Jain, M/s Shubham Builders & Developers and its partners as the OPs in the complaint, and seeking completion of the construction and refund of the amount of Rs.6,40,000/- alongwith compensation etc.

2. The complaint was resisted by the appellant as well as by OPs No.6 to 8 in the original complaint.

3. The State Commission, vide its order dated 16.08.2018, directed as under:

2. It is hereby declared that the opponents are guilty of deficiency in service and unfair trade practice.

3. Opponents are hereby directed to complete the construction of unit /bungalow no.28 (I) booked by the complainants having carpet area 1920 sq.ft. constructed in project named “SERENE COUNTY” on a plot of land bearing Gat no.113/2 admeasu