Order-11.
Date-04/01/2017.
Shri Pulak Kumar Singha, Member.
This is an application u/s.12 of the C.P. Act, 1986.
In brief the case of the complainant is that the complainants are the joint owners of Plot No.-76, Khaitan No.-2046, J. L. No.-31, measuring about 2.30 decimals, situated at Mouza- Krolberia, Dist. South 24 Pgs. The complainants were decided to construct a residential accommodation on the said property and accordingly an assignment agreement was executed on 11/01/2013 with the O.P. Builder. As per the said Agreement the proposed duplex will be completed within 18 to 24 months and complainants have also paid a sum of Rs.6,26,685/- tothe O.P. as advance out of total consideration of Rs.21,60,000/-. The O.P. has also taken the original Title Deed in respect of the said property from the complainants. The O.P. Builder did not start the construction work in spite of several requests of the complainants. Thereafter, complainants sent a legal notice with a request to refund back the advance amount of Rs.6,26,685/- along with the original Title Deed but to no effect. Finding no other alternative the complainants compelled to approach before this Forum with the prayer as stated in the petition of complaint.
In spite of receiving summons the neither appeared nor contested the case. So the case is proceeded ex-parte against the O.P.
Point for Decision
- Whether the O.P. is deficient in rendering service to the complainants?
- Whether the complainants are entitled to get relief as prayed for?
Decision with Reasons
On scrutiny of the record and the documents we find that complainants are the owners of Plot No.-76, Khaitan No.-2046, J. L. No.-31, measuring about 2.30 decimals under Mouza-Krolberia, Dist. South 24 Pgs. The complainants were decided to construct a residential duplex banglowon the said plot and accordingly contact with the O.P. and advanced an amount of Rs.6,26,685/- on various dates. The complainants also entered into an agreement with O.P. for construction of the said duplex building on 11/01/2013 and as per agreement the proposed duplex will be completed within 18 to 24 months and total contract amount was of rs.21,60,000/- out of which complainants paid Rs.6,26,685/-. O.P. has also taken the original title deed from the complainants. After assignment of the agreement O.P. Builder did not start any construction on the said plot of the complainants. The complainants on several occasions requested O.P. for starting construction work but O.P. did not pay heed to the complainants. Subsequently on 14/03/2016 the complainants sent legal notice to the O.P. Builder with a request to refund the advanced amount of Rs.6,26,685/- together with the original title deed of the complainants. In spite of received of legal notice O.P. did not give any reply of the said legal notice.
It appears from the agreement and payment receipts that complainants have performed their part of duties as per agreement but O.P. did not abide by the terms of the agreement.
None came from the side of O.P. to challenge or contradict the version of the complainants as stated in evidence supported by affidavit. The version of the complainants remain unchallenged and uncontroverted. In absence of any contrary and controverting materials on record and having regard to the documents filed by the complainants and as evidence of the complainant remains unchallenged, we think that O.P. is deficient in rendering proper service to the complainants and O.P. failed to comply with the contractual obligation in terms of the agreement dated 11/01/2013. Complainants suffered harassment, mental pain and also monetary loss. We think that the complainants are entitled to get relief as prayed for.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed ex-parte but on merit against the O.P.
O.P. is directed to refund Rs.6,26,685/- to the complainant with interest at the rate of 10 percent p.a. w.e.f. 10/11/2012 within one month from the order of this order.
O.P. is further directed to return the original title deed of the complainants within the said stipulated period.
O.P. is also directed to pay Rs.25,000/- (Rupees Twenty Five Thousand) as compensation for causing harassment, mental pain and agony and financial loss tothe complainant within one month from the date of this order besides litigation cost of Rs.10,000/-.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
