Non-fulfillment of contractual obligations by the developer absolves the landowner from liability for possession failure.

1. The present appeal has been directed by the Appellant / OP No. 1 (hereinafter referred of as ‘OP No. 1’) against the final order / judgement dated 08.02.2019 in CC No. 496/2017 passed by erstwhile Ld. DCDRF, Kolkata Unit - II.

2. Facts of the case in brief are that the OP No. 1 / the owner of the land entered into a development agreement with the OP No. 2 / developer for construction of a multi storied building as per sanctioned plan. When the construction was going on the present Respondent No. 1 / Complainant (hereinafter referred to as ‘complainant’) approached the OP No. 1 and OP No. 2 for purchasing a flat in the said building and OPs agreed to the proposal and stated that they can provide a flat in the ground floor and the complainant accepted the proposal . Accordingly, a agreement for sale was executed by and between the complainant and OP No. 1 on 28.4.2013 for a flat in the southeast side of the ground floor measuring about 600 sq.ft. super built up area at Premises No. 164/3/1C, Swinhoe Lane, Kolkata - 700 042 for a consideration of Rs. 10,000,00 / in presence of OP No. 2. As per agreement complainant paid Rs. 50,000 only as earnest money and it was agreed that the balance amount of Rs. 9,50,000 shall be paid at the time of execution of the deed of conveyance. It was also agreed that OP No. 1 will handover the possession upon receipt of completion certificate within 31.12.2013 saver and except the force majeure clause. After completion of construction the complainant approached the OP No. 1 to handover the possession of the flat after receiving the balance amount and to execute and register the deed of conveyance but the OPs did not take any initiative. After a long wait complainant sent a notice to OP No. 1 for handing over the possession of the flat and to execute and register the deed of conveyance but OP No. 1 did not pay any heed. Ultimately complainant sent a letter on 16.12.2016 requesting the OPs to take steps to handover the possession of the flat and to execute and register the deed of conveyance . Since OP No. 1 did not take any initiative, finding no other alternative the complainant filed the instant complaint before the erstwhile District Forum praying for handover the possession of the suit property as per schedule mentioned in the petition of the complaint after receiving the balance consideration along with direction upon OPs to execute and register the deed of conveyance within a stipulated period of time, in default, the same be done through the machinery of the learned Forum along with compensation of Rs. 2,00,000 for causing harassment and mental agony and Rs. 50,000 for litigation cost.

3. OP No. 1 filed the written version . In the written version OP No. 1 has stated that OP No. 1 is supposed to give the possession of the said flat to the complainant after 6(six) months from the issuance of the completion certificate from KMC. But OP No. 2 is supposed to collect the said completion certificate and till date he has not received the same and for that reason OP No. 1 was unable to hand over the possession of the said flat to the complainant. At this juncture OP No. 1 is willing to refund the amount as per Clause (d) of the said agreement of sale dated 28.4.2013. Before filing this application the complaint has approached the Consumer Affairs Department and the OP No. 1 submitted his willingness to refund the earnest money as per terms and conditions of the agreement. The complainant files this complaint b