Hon’ble Mrs. Soma Bhattacharjee, Member

The gist of the complaint case is one Binoy Chandra Sen since deceased entered into an agreement on 18.01.2012 with OP nos. 1 to 4 being joint owners of premises no. 724 Pasupata Bhattacharjee Road, P.S Behala, Kolkata- 700034 and with Sri Swapan Malakar, OP no. 6 for development of the land of the said premises by raising a multi storied building. Along with the said agreement for development, OP nos. 1 to 4 also executed and registered two general Power of Attorney on 18.01.2012 and 30.01.2012 in favour of Binoy Chandra Sen since deceased and Sri Swapan Malakar to do all acts, deeds and things on their behalf with regard to the said premises.

Sri Binoy Chandra Sen during his lifetime and Sri Swapan Malakar, OP no. 6 have together constructed G+4 storied building on the scheduled land.

Sri Binoy Chandra Sen and OP no. 6 Sri Swapan Malakar entered into an agreement for sale on 21.05.2014 with Smt. Bijaya Nandi, the complainant in the instant case. The agreement was to sell and transfer one self contained flat on the back side of the first floor of the G+4 storied building at premises no. 724 Pasupati Bhattacharjee Road, P.S Behala Kolkata-700034. The size of the flat being 800 sq. ft. super built up area. The consideration price was fixed at Rs. 21,50,000/- only. Smt Bijaya Nandi has paid Rs. 5,00,000/- only in cash by way of earnest money on the date of agreement for sale and the money receipts dt. 21.05.2014 is enclosed in the complaint petition as annexure B series.

Clause 26 of the agreement dt. 21.05.2014 specifically states that the possession of the said flat will be effected within 6 months of the date of execution of the said agreement for sale and the deed of conveyance will be executed and registered on receipt of the balance amount of consideration money from the complainant Smt. Bijaya Nandi. However the said flat was not handed over to the complainant within due time although she contacted Binay Chandra Sen and Swapan Malakar several times. She came to know that Binay Chandra Sen had expired and Sri Biswajit Sen (OP no. 5) is only son and legal heir stepped into the shoes of Binay Chandra Sen. The complainant met Sri Biswajit Sen and Swapan Malakar and asked them to either handover possession of the said flat or to refund the advance consideration of Rs. 5,00,000/- paid along with interest of 12.5% p.a. but the OP nos. 5 & 6 did not pay heed to her request.

Finally on 20.01.2018 Smt. Bijaya Nandi was compelled to serve legal notice upon OP 5 & 6. Copies of this notice has been filed as annexure C series. Since the OP nos. 5 & 6 did not take any steps to either handover the flat or refund the advanced consideration along with interest the complainant was forced to file this complaint case under C.P. Act 1986, cause of action having arisen on the date of agreement being 21.05.2014 and it is still continuing.

Both sides filed their evidence and replies. BNA were also filed by both sides. OP nos. 1 to 4 have stated in their evidence that they did not receive any consideration money from the complainant and they had already executed Power of Attorney in favour of OP nos. 5 and 6 and hence their names be expunged from the complaint case.

Heard the Ld. Counsels at length and considered.

Points for decision are

• Whether the complainant is a consumer
• Whether there is deficiency of service
• Whether the complainant is entitled to any relief

Since the complainant has paid a part consideration of Rs. 5,00,000/- to the Opposite Parties for delivery of  a flat in terms of Section 2 (d) of Consumer Protection Act, 1986 she is a consumer.

It goes without saying that the Opposite Parties did not perform their duties as per agreement. Hence, there is deficiency in service on their part by means of unfair trade practice. The complainant is entitled to relief as prayed for.  

Hence the case succeeds on contest.

It is ordered

The complaint case being no. 139/2018 is allowed on contest. The Opposite Parties are directed to refund Rs. 5,00,000/- (Rupees Five lakh) to the complainant with an interest @ 9% p.a. from the date of payment of the part consideration, till the date of realisation. The Opposite Parties will also pay a litigation cost of Rs. 5000/- (Rupees Five Thousand) to the complainant. If this order is not complied within 60 days, the complainant will be at liberty to put the order into execution.

          The complaint case being no. 139/2018 is hereby disposed of.