Dt. of filing- 27/03/2018
Dt. of Judgement- 11/10/2018
Mrs. Sashi Kala Basu,President.
This is a complaint filed u/s. 12 of the Consumer Protection Act, 1986 by the complainants namely Smt. Bharati Rani Dalal and Sri Debabrata Dalal alleging deficiency in service on the part of Opposite Parties namely Sri Pradip Kumar Das and Smt. Mona Das.
Brief facts of the case of the complainants is that Opposite Parties being the joint owners of the land measuring about 2 cottah 85 chittaks situated at Municipal Premises No. 28/39, Prince Golam Hossain Shah Road locally known as Premises no. 209, Bikramgarh, P. S. – Jadavpur, Kolkata – 700 032 under K.M.C. Ward No.93 decided to develop the land of the said Premises by constructing a multi-storied building after obtaining sanction of building plan from KMC. Complainants being intending purchasers entered into an agreement of sale with the Opposite Parties in the month of November 2016 in respect of a self-contained flat being entire first floor ( South East ) measuring 415 sq.ft. of super built up area ( including 20% common area ) at a consideration price of Rs.11,41,250/- only i.e. Rs. 2750/- per sq.ft. An amount of Rs. 4,00,000/- only was paid by the complainant as earnest money by cheque bearing no.477496 dated 29.11.2016 and thereafter complainant has paid further amount of Rs. 3,00,000/- on four different dates i.e. on 01.03.2017, 15.07.2017, 07.08.2017 and on 27.08.2017 respectively. As per agreement, flat was to be handed over to the complainants within 14 months from the date of execution of agreement for sale i.e. within January 2018 . But the Opposite Parties have failed and neglected to comply the said terms of the agreement. Hence, a notice dated 02.10.2017 and 02.02.2018 was sent by the complainants to the Opposite Parties but Opposite Parties failed to deliver the possession of the flat. Hence this complaint is filed by the complainants praying for directing the Opposite Parties either to deliver possession of the flat to the complainants by executing and registering the deed of conveyance in respect of the said flat upon receipt of balance consideration amount or to refund the part payment made by the complainants of Rs. 7,00,000/- along with compensation of Rs. 5,00,000/- and litigation cost of Rs. 50,000/-.
Complainants have annexed with the complaint, photo copy of gift deed, K.M.C. tax receipts in the name of Opposite Parties, Agreement for Sale entered between the parties, receipts showing payment and copy of notice dated 02.10.2017 and lawyer’s notice dated 02.02.2018.
On perusal of the record, it appears that the Opposite Parties appeared through their Ld. Advocate on 03.05.2018 and prayed for time for filing written version but vide order dated 29.06.2018, case was fixed for exparte hearing as Opposite Parties did not take any step. Neither any written version was filed by them.
During the course of evidence, complainants filed the petition stating to treat the petition of complaint as affidavit –in-chief. Thereafter argument has been heard on behalf of the complainants.
So the points require determination is :-
- Whether there has been any deficiency in service on the part of the Opposite Parties ?
- Whether the complainants are entitled to the reliefs as prayed for ?
Decision with reasons
Point No. 1 :
Both these points are taken up together for discussions in order to avoid repeatations.
According to the complainants, apposite Parties are the owners of the land where the proposed building was being constructed and in support of the said contention, copy of the gift deed in the name of Opposite Parties has been filed. The agreement of sale filed by the complainants reveal that the parties in this case entered into an agreement for sale in November 2016 in respect of flat mentioned in the schedule of the complaint petition measuring 415 sq.ft. at a total consideration price of Rs. 11,41,250/- only. The agreement indicates that earnest money of Rs. 4,00,000/- was paid by the complainants by way of an Account Payee Cheque towards the purchase of the flat. The receipts filed further show that Rs.1,50,000/- on 01.03.2017 , Rs.20,000/- on 15.07.2017, Rs.1,15,000/- on 07.08.2017 and RS. 15,000/- was paid by the complainants on 27.08.2017 respectively to the Opposite Parties. So total sum of Rs. 7,00,000/- has been paid. It further appears that as per agreement, possession of the flat was to be delivered by the Opposite Parties within 14 months of execution of agreement of sale. But it is stated by the complainants that inspite of sending notices, Opposite Parties have failed to deliver the possession of the flat in question. According to the complainants that the flat is not even completely constructed. It transpires from the notice dated 02.02.2018, it is stated therein by the complainants that if the Opposite Parties were unable to deliver possession of the said flat in favour of the complainants upon accepting the balance amount of consideration than the Opposite Parties were at liberty to refund the amount of Rs. 7,00,000/- paid by the complainants towards part payment together with interest therein and the damages of Rs. 1,50,000/-. But the Opposite Parties neither delivered the possession nor refunded the money. So it is apparent that there is deficiency in service on the part of the Opposite Parties. In such a situation, complainants are entitled to an order of directing the Opposite Parties to deliver the possession of flat by executing and registering the deed of conveyance upon receipt of balance amount of consideration or in alternate to refund the amount paid by the complainants as part payment together with interest thereon till its realization. They are also entitled to the compensation of Rs. 1,00,000/- for harassment and mental agony and litigation cost of Rs. 10,000/- as they have been compelled to file this case.These pints are thus answered accordingly.
Hence,
ORDERED
CC/159/2018 is allowed ex-parte against the Opposite Parties. Opposite Parties are directed to deliver the possession of the flat mentioned in the schedule of the petition of complaint by executing and registering the deed of conveyance on receiving the balance amount of consideration from the complainant, within three months from the date of this order or in alternate they are directed to refund the amount paid by the complainants of Rs.7,00,000/- as part payment together with interest thereon @ 8% p.a. from 01.03.2017 ( the date of making payment by the complainants lastly ) till its realisation. The Opposite Parties are further directed to pay Rs. 1,00,000/- as compensation and Rs.10,000/- as litigation cost to the complainants within the aforementioned period of three months.
