SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainants, in brief; is that the OP-1 Skywood Developers Pvt. Ltd. published an advertisement in the Anandabazar Patrika for Sale of Flat at Khariberia under Purb Bishnupur Gram Panchayat within the District of South 24 Pgs. The complainants expressed their intention to purchase a flat measuring about 458 sq ft super build up area on the 3rd floor (North-East facing) being flat No. 3D in Block-3 consisting of 1 bed room, kitchen, leaving cum dining room, 1 toilet (Bath and privy ), 1 WC and balcony with lift facility at a total consideration of Rs., 12,96,230/- and had entered in to an Agreement for Sale dated 05.10.2015 with OPs 1 to 4. In terms of the Agreement for Sale the complainants had paid Rs. 2,47,416/- to the OP-1 vide cheque bearing Nos. 099766, 000002, 099770 and 099772 dated 17.01.2014, 19.09.2014, 09.11.2014 and 05.12.2014 respectively against money receipts. The OP-1 encashed those cheques. In terms of the Agreement for Sale possession of the flat is scheduled to hand over to the complainants by April, 2016. The complainants are all along ready to pay the balance consideration amount but the OP-1 failed to construct the proposed building.
Further case of the complainants is that OP-5 CEO of OP-1 requested them to enter into a new Agreement for Sale for a larger flat or same carpet area as the land where the proposed building is to be constructed is a SALI land. The complainants refused such proposal of OP-5 and vide letter dated 24.01.2016 they requested to OP-5 to refund the advanced consideration amount with interest thereon. Such letter was unattended. The complainants lodged a complaint against the OP-5 to the consumers affairs and fair business practice, Govt. of West Bengal for mediation but mediation failed. Finding no other alternative, the complainants lodged complaint against the OPs to the O/C Entally P.S. In spite of several request and reminders the OPs failed and neglected to refund the advance consideration amount. There is deficiency in service and unfair trade practice on the part of the OPs. Hence, the consumer complaint.
In spite of service of notices the OPs did not turn up to contest the case. As such, the case has proceed ex parte against the OPs.
Decision with Reasons
To establish their case the complainant -1 Sikha Chattopadhyay adduced evidence through affidavit and also produced photocopies of Agreement for Sale dated 05.10.2015, Payment Receipts, letters dated 24.11.2016 and 03.05.2017 issued by the Assistant Director, Consumer Affairs and Fair Business Practices, Govt. of West Bengal, letter dated 28.01.2017 addressed to the O/C Entally P.S., Postal Track Reports and letter dated 15.04.2018. On perusal of those documents we find that the complainants had executed an Agreement for Sale dated 05.10.2015 with the OPs 1 to 4 in respect of the subject flat fully described in the schedule ‘B’ of the Agreement for Sale. As per agreement the value of the subject flat is Rs. 12,96,230/- and the complainants had paid Rs. 2,47,416/- to the OP-1 against money receipts. The OPs did not construct the proposed building on the ground that the land where the proposed construction is to be made is a SALI land. The OPs requested the complainants to enter a new Agreement for Sale for a larger flat or for same area of flat in other place. The complainants flatly refused such proposal and requested the OPs to refund the advanced consideration amount. In spite of letter dated 24.11.2016 the OPS did not refund the advanced amount to the complainants for which the complainants were compelled to lodge a complaint against the OPs to the O/C Entally P.S.
We do not find any reason why the OP-1 being the developer and the OPs 2 to 4 being its partners have received the amount of Rs. 2,47,416/- from the complainants and utilized the said money for their own gain. Therefore, we hold that the OPs 1 to 4 demonstrated a gesture of deficiency in service and indulged in unfair trade practice. The OPs 1 to 4 have also caused harassment, mental pain and agony to the complainants. Therefore, the complainants are entitled to get relief against the OPs 1 to 4. The complainants did not claim any relief against the OPs 5 and 6. The OPs 5 and 6 are the CEO of OP-1 and Director of Avadh Merchants Pvt. Ltd. They are not party to the Agreement for Sale dated 05.10.2015 executed between the complainants in one part and the OPs 1 to 4 to other parts. The complainants pray for direction upon the OPs 1 to 4 to handover the subject flat but it is admittedly fact that the land whether the proposed building would be constructed is a SALI land. Unless the SALI land converted into BASTU land construction of building on the said land cannot be done. The complainants alternatively pray for refund of Rs. 2,47,417/- along with interest at the rate of 9 percent per annum until realization. Therefore, we are inclined to allow the alterative prayer of the complainants.
In result, the case merit succeed.
Hence,
Ordered
That the complaint case be and the same is allowed ex parte against OPs 1 to 4 with litigation cost of Rs. 5,000/- (Rupees Five thousand) only and dismissed ex parte against the OPs 5 and 6 but without any cost.
The OPs 1 to 4 are jointly and severally directed to refund Rs. 2,47,417/- (Rupees Two lacs Fourty Seven thousand Four hundred Seventeen) only to the complainants within the 30 days from the date of this order along with litigation cost.
The OPs 1 to 4 are further directed to pay Rs. 50,000/- (Rupees Fifty thousand) only as compensation for harassment, mental pain and agony to the complainants within the stipulated period.
Liberty be given to the complainants to put the order in execution, if the OPs transgress to comply the order.
Dictated & Corrected
