PUSHPENDU CHOWDHURY & ANR. vs SOUMEN KARMAKAR & ORS.

Vide agreement dated 16.07.2008, the petitioner Mr. Pushpendu Chowdhury, Proprietor of Tirupathy Construction entered into a development agreement that respondent no. 2 Haru Das and respondent no. 3 Smt. Sephali Das for the development of the property of the respondents. A Power of Attorney was executed by respondent no. 3 & 4 in favour of the petitioner Mr. Pushpendu Chowdhury. He then entered into an agreement with the petitioner on 12.11.2010, to sell a flat measuring 400 sq. ft. on the third floor of the building which he was to construct on the property of respondent no. 3 & 4 namely Haru Das and Sephali Das, for a total consideration of Rs.4,08,000/-. The complainant made payment of Rs.1,00,000/- to him as the earnest money. The balance payment was to be made at the time of delivery of possession. An additional payment of Rs.10,000/- was thereafter made by the complainant to the petitioner. The possession of the flat having not been delivered by the stipulated date, the complainant approached the concerned District Forum by way of a complaint.

The complaint was resisted by the petitioner, primarily on the ground that he had completed the construction and offered possession of the flat to the complainant who had failed to pay the balance consideration and take possession of the flats agreed to be sold to him.

Respondent no. 3 filed a written version stating therein that the petitioner had left the work incomplete and therefore, they had incurred an expenditure of Rs.5,00,000/- to make the flat habitable.

The District Forum vide its order dated 31.12.2014, dismissed the complaint against the land owners but directed the petitioner to deliver possession of the flat to the complainant on the complainant making payment of Rs.3,08,000/- alongwith interest @ 12% per annum from July 2011.

Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 31.05.2016, the State Commission set aside the direction for payment of interest and also reduced the balance amount payable by the complainant, by Rs.10,000/-. Being aggrieved, the petitioner is before this Commission by way of this revision petition.

This is not in dispute that after paying the earnest money of Rs.1,00,000/-, the complainant had made a further payment of Rs.10,000/- to the petitioner. Therefore, the principal amount payable by the complainant comes to Rs.2,98,000/-, as rightly held by the State Commission.

The only question which arises for consideration in this petition is as to whether the petitioner had completed the construction and offered possession of the flat to the complainant on or before the date stipulated in the agreement executed by him with the complainant. There is absolutely no documentary evidence of the petitioner having offered possession of the flat. Had the petitioner completed the construction in time, the first thing he would have done was to offer possession of the said flat to the complainant and ask him to pay the balance amount of Rs.2,98,000/-. Since that has not been done, the inevitable inference is that the construction of the flat was not complete by the date stipulated in the agreement between the parties and that is why no such offer was made to the complainant. Even otherwise, no evidence has been led by the petitioner to prove that the construction of the flat was complete in all respects by June 2011. Therefore, since the possession of the flat was never offered to him, the complainant cannot be asked to pay interest on the balance sale consideration. The order passed by the State Commission is eminently justified on the facts of the case and does not call for any interference by this Commission in exercise of its revisional jurisdiction. The revision petition is therefore, dismissed, with no order as to costs.