DIPAK KUMAR GHOSH Vs. SUDIP GHOSH

JUDGEMENT

(1.) The instant complaint under section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against the developer/builder on the allegation of deficiency of services in a dispute of housing construction.

(2.) In a capsulated form, complainant's case is that on 14.01.2013 he entered into an agreement with the Opposite Parties to purchase of a self-contained flat measuring about 1500 sq. ft. super built up area on the 2nd floor in a building lying and situated at premises No. 2, Moni Mohon Mukherjee Road, P.S.- Gariahat, Kolkata- 700019, Dist- South 24 Parganas within the local limits of Ward No. 68 of Kolkata Municipal Corporation at a total consideration of Rs. 57,00,000/-. Before the execution of the agreement for sale, complainant already paid Rs. 25,00,000/- to the developer as earnest money/part consideration amount. The complainant has stated that the developer has failed to commence the construction even after a passage of 5 years from the date of execution of the development agreement executed between them and the landowner and failed to obtain the sanctioned building plan from the Kolkata Municipal Corporation(KMC). The complainant has stated that the developer promised to deliver the possession of the flat in question within 18 months from the date of sanctioned of the plan. In the agreement it was also stipulated that if the developer fails to obtain sanctioned plan by 31.03.2013, the purchaser may opt for withdrawal of the entire amount including interest of 18% p.a. with monthly rests from the date of receipt of date of payment by a single instalment. The complainant has stated that he called upon the developer to refund the entire amount of Rs. 25,00,000/- along with interest accrued thereon but the developer has paid an amount of Rs. 11,00,000/- leaving a balance of Rs. 14,00,000/- along with accrued interest thereon. In this regard, all the requests and persuasions including the legal notice dated 25.02.2016 went in vain. Hence, the complainant approached this commission with the instant complaint with prayer for following reliefs, viz.- (a) an order directing the OPs to refund of Rs. 14,00,000/-; (b) to direct the OPs to pay Rs. 33,23,000/- being interest accrued on the principal amount till 31.05.2016; (c) compensation of Rs. 2,00,000/- for harassment and mental agony; (d) litigation costs of Rs. 25,000/- etc.

(3.) The Opposite Party No. 1/developer by filing a written version has stated that this commission has no jurisdiction to adjudicate the dispute and to award compensation as per Section 14 of the Act. The OP No. 1 has admitted the agreement and payment of Rs. 25,00,000/- by the complainant but it has been stated that on account of death of landowner Madhabi Ranjan Chakraborty after execution of development agreement and Power of Attorney before sanctioned building plan has created problem in obtaining the sanctioned building plan due to disputes cropped up between the legal heirs of the land owner and such when there is no deficiency of services on the part of them, the complaint should be dismissed.