A flat buyer is entitled to a full refund with interest when a developer fails to deliver possession within a reasonable time; however, a landowner is not a service provider to third-party buyers under a standard development agreement, and legal proceedings initiated against a deceased person are void.

JUDGMENT

DR.SUDHIR KUMAR JAIN, J.

1. The relevant facts as reflected from the complaint are that the Sunita Mondal and Sayanti Mondal, (hereinafter referred to as ‘the Complainants’) are mother and daughter and booked a residential unit for residential purposes on representation and assurances given by the opposite party no 1. The complainants on 12.03.2013 paid Rs.1,00,00,000 as booking amount in respect of unit no. 2A situated on the second floor, South East North Portion admeasuring 1702 sq. ft. (hereinafter referred to as “the unit”) in the project of opposite party no. 1 situated at premises no. 14, Kavi Bharati Sarani (formerly Lake Road), Kolkata. The complainants paid Rs.1,00,00,000/- to opposite party no. 1 on 12.03.2013 and out of said amount paid Rs.60,00,000/- in cash and Rs.40,00,000/- by cheque. The agreement to sell was also executed between the complainants and the opposite parties on 13.03.2013. The opposite party no 1 as per Clause 10.2 of the said Agreement was committed to hand over possession of the flat along with a car parking space within 24 months from the date of execution of the agreement but despite the lapse of several years from the execution of the agreement to sell, the opposite party no. 1 did not complete the ground work of the said project. The complainants sent a letter dated 30.09.2016 to the opposite party no. 1 requesting for delivery of timely possession of the unit which was not responded by the opposite party no 1. The complainants being aggrieved filed present consumer complaint bearing CC no 543/2017 titled as Sunita Mondal & another V M/s Amrapali Hirise Private Limited & another under Section 21(A) 1 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) before this Commission. The complainant has prayed as under:-

a) allow the present complaint;

b) direct the Opposite Party to refund the entire amount paid to the Opposite Party along with 18% interest from the date of deposit till the actual realization due to change in circumstances of the complainant and inability to deliver possession within coming one year shown by the Opposite Party No. 1.

c) Direct the Opposite Party to pay the compensation of Rs.15,00,000/- (Rupees Fifteen Lakhs only) towards mental agony and physical harassment caused by the Opposite Party and for adopting unfair trade practice, and compensation for escalation of price of the property in the said locality, which the Complainants are now constraints to pay higher cost towards the another property in the said locality;

d) Opposite Party may also be directed to pay the cost of the Complainant to the tune of Rs.75000/- (Rupees Seventy Five Thousand Only) as litigation expenses.

e) pass such other or further order/orders as may be deemed fit and proper on the facts and in the circumstances of this case.

1.1 The opposite party no 1 despite service of the notice has not filed written version and accordingly right of the opposite party no 1 to file written version was ordered to be forfeited vide order dated 19.06.2018. The opposite party no. 2 who was the original landowner and had entered into a Development Agreement dated 24.08.2012 with opposite party no. 1 had already expired on 09.08.2015 i.e. prior to the filing of the present complaint. This Commission vide order dated 07.02.2019 impleaded Panchali Sen, the daughter of the deceased as opposite party no 2A.

2. The opposite party no 2A contested the complaint and filed the written statement. The opposite party no 2A submitted that present consumer complaint