The binding nature of the signed document and the obligation of the developer to comply with the terms of the agreement.

ORDER :

Samaresh Prasad Chowdhury, Presiding Member

The instant Complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, “the Act”) is at the instance of an intending purchaser against the Developer/Builder (Opposite party No. 1) and the land owners (Opposite party Nos. 2 to 8) and the subsequent purchaser (OP No. 9) on the allegation on deficiency in service, primarily on the part of OP No. 1/developer in a consumer dispute of housing construction.

2. Cut short of details, Complainant’s case is that on 24.7.2011 he entered into an agreement with the OP No. 1 to purchase of a self-contained flat measuring about 900 sq. ft. super built up area on the top floor or premises No. 3, Doctor Lane, P.S.-Taltala, Kolkata-700014 at a total consideration of Rs. 37,80,000. In terms of the said agreement, the complainant has paid a sum of Rs. 10,00,00 to OP No. 1 as part consideration amount. The complainant has stated that he could not make payment of second instalment in due time on account of his fund crunch. When the complainant narrated the same to OP No. 1. OP No. 1 disclosed that he sold out the subject flat to someone else and assured the complainant to sell the flat in the next project but the said assurance was nothing but a hoax. Finding no other alternative, the complainant requested the OP to refund the amount sometimes in the month of January 2014 but the same turned a deaf ear. Hence the complaint with prayer for following reliefs viz.—(a) to direct the OP No. 1 to handover the flat mentioned in the Schedule ‘B’ of the agreement dated 24the July, 2011, in default, to direct the OP No. 1 to return the amount of Rs. 10,00,000 (Rupees ten lakh) only paid in advance for purchasing the flat with 10% interest from 24.7.2011 till payment of above money, (b) to direct the OP to pay compensation of Rs. 5,00,000 (Rupees five lakhs) only for mental and physical trouble/harassment, (c) to pay litigation cost of Rs. 20,000 (Rupees twenty thousand) only, (d) to pass such order/order as deem fit and proper

3. The OP No. 1 by filing a written version has stated that the complainant has failed to abide by the Clause Nos. 5 and 6 of the agreement for sale and as such the Clauses No. 11(b) will be applicable in the facts of the case and the complainants is ready to refund the amount after deduction of 25% from the amount of Rs. 10,00,000.

4. OP Nos. 5 to 8 being land owners by filing a separate written version have stated that they were unaware about the agreement for sale between the complainant and OP No. 1 and as such the complainant should be dismissed against them.

5. During hearing of the case, on behalf of complainant, OP No. 1 and OP Nos. 5 to 8 evidence on affidavit have been filed. They have also given reply against the questionnaire set forth by their adversaries. Besides the same, the parties have relied upon some documents including the agreement for sale dated 24.7.2011.

6. Undisputedly, OP Nos. 5 to 8 were the owners of a piece of land measuring about 3 Cottahs and 12 Chittaks and 25 sq. ft. together with the building standing thereon lying and situated at premises No. 31, Doctor Lane, P.S.- Taltala, Kolkata-700014 within the local limits of Kolkata Municipal Corporation. In order to construct one G+4 building thereon on 20.11.2006, the land owners had entered into a development agreement with OP No. 1, who is proprietor of M/s. WREAK INTERNATIONAL. Accordingly, on 15.12.2006 the land owners also executed one general power of attorney in favour of OP No. 1.

7. Pursuant to the power conferred upon her, OP No. 1 had entered into an agreement for sale with the complainant on 24.7.2011 to sell one self-contained flat measuring about 900 sq. ft. on the top floor in the said premises at a total consideration of Rs. 37,80,000. Admittedly, the complainant has paid a sum of Rs. 10,00,000 on 24.7.2011 as an earnest money or part consideration amount towards the said total considerati