DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _131_ OF ___2016_
DATE OF FILING : 28.11.2016 DATE OF PASSING JUDGEMENT:27.07.2017
Present : President :
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT : 1. Sri Arunava Sanyal, son of Sri Amiya Sanyal
2. Smt. Jhuma Sanyal, wife of Sri Arunava Sanyal both of Gorhkhara Avay Apartment, P.S Sonarpur, Kol – 150.
-VERSUS -
O.P/O.Ps : Sri Ram Chandra Shah, son of Sri Kapil Shaw of Purba Baidyapara, P.S Sonarpur, Kolkata – 150. And presently at 38, Raipur Top Floor, Ramgarh More, (Near West wind), Housing, Kolkata-84.
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J U D G E M E N T
Jhunu Prasad, Lady Member
Interference of this Forum has been sought for by the complainant contending gross negligence, deficiency and unfair trade practice in rendering service towards the complainant by the OPs.
In diminutive, the case of the complainant is that, the O.P No 1 is the owner of a land measuring about more or less 3 cottah 8 chittak 0 Sq. Ft. lying and situated at Mouza- Sonarpur, J.L. No.39 RS Dag No 270(p) under R.S. Khatian No 577, holding No. purbadaspara, P.S. Sonarpur, under Rajpur-Sonarpur municipality ward No 12. Dist South 24 PGs. The O.P No. 1. is carrying a business of promoter and developer under name and style of Sarada Construction as O.P No.2. The O.P No1 wants to develop the said land measuring about more or less 2 cottah 13 chittak after obtaining sanctioned plan and thereafter to dismantle the dilapidated walls lying in the said landed property for construction.
Complainant entered in to an ‘Agreement for sale’ on 22.07.2012 with the O.Ps which was executed on the same date i.e. on 22.07.2012 and being intended to purchase one flat on 2nd floor measuring about 700 Sq. Ft more or less super built up area of the above mentioned premises in the new building to be constructed in favour of the complainant within 24 months from the date ‘Agreement for sale’.
Accordingly the complainant paid of Rs. 7,50,000/- to the O.P No.1 on different dates by cash and by cheque.
In spite of receiving the said money of Rs. 7,50,000/- out of total consideration of Rs.12lacs, the O.P No.1 neither developed the said land nor constructed the building.
Thereafter on 27.02.2015 the O.P No.1 returned the amount of Rs. 2,000,00/- to the complainant through cheque being No.000328, drawn on Union bank, Sonarpur branch, but the said cheque was dishonoured due to ‘Insufficient Fund’.
Thereafter the complainant several times visited the office of the O.P and requested to hand over the flat or refund the amount which has been received from the complainant, but till date the O.P No.1 neither constructed the said flat nor refunded the said amount of Rs.7,50,000/- and the O.P No.1 palpably violating the said’ Agreement for sale’ dated 22.07.2012.
Having no other alternative the complainant filed this instant complaint for getting relief as prayed for.
Issued notice upon the O.Ps.
In spite receiving notice, the O.Ps did not appear to controvert and to refute the case. So the complaint case is heard exparte against the O.P.
Points for Determination :-
1. Was there any negligence or deficiency in service on the part of the O.P?
2. Is the complainant entitled to get relief as prayed for?
Decision with Reasons:-
At the time of argument the complainant filed affidavit – in - chief, BNA and some Xerox copies of document to support of his contention.
All points are taken up together for consideration for the sake of argument and brevity.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the complainant and critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocate of the complainant and on critical appreciation to the case record, it is evident that admittedly one ‘Agreement for sale’ was executed by and between the complainant as ‘purchaser’ and the O.P.No.1 as ‘vendor’ on 22.07.2012 for purchasing a self contained residential flat measuring about 700 Sq. Ft. as mentioned in the ‘H’ schedule of the flat of the complaint, for total consideration amount of Rs. 12,00,00/- out of which the complainant paid of Rs7,50,000/-.
Now, the fact remains that after stipulated period i.e. within 24 months from the date of ‘Agreement for sale’ the O.P neither developed the said land nor constructed the new building.
From perusal of the record, it is also evident that the O.P refunded Rs.2,000,00/- to the complainant by way of cheque No. 000328 dated 27.02.2015 which was dishonoured due to ‘Insufficient fund’.
Therefore, from the discussions made above, it is crystal clear that the O.P deliberately failed to hand over the said flat in question to the complainant without showing any cogent reason, for which as per ‘Agreement for sale’ the O.Ps are liable to refund the entire earnest money to the complainant which he has been paid.
In this scenario the Hon’ble National Commission also observed that when a developer fails to perform his duty as per ‘Agreement for sale’ and delivered possession within the stipulated time i.e 24 months from the date ‘Agreement for sale’, purchaser has discretion either to take possession of flat or ask for refund of deposited amount with interest.
Accordingly we hold that the purchaser’s claim for refund of money is justified and entitled to take back the deposited money and compensation.
Moreover, all the allegations made by the complainant are unchallenged, though the O.Ps got chance to contest and to refute by filing the written version before the Forum, but the O.Ps deliberately failed to file the same. Therefore, there are no reasons to disbelieve the unchallenged testimony of the complainant’s case.
In light of the analysis, we are of the unanimous opinion that the O.Ps committed gross deficiency in service under the per view of section 2 (1)(g) of C.P. Act 1986.
Therefore, we have no hesitation to hold that the complainant has successfully proved his case and is entitled to get the relief as above from the OPs. and consequently the points for determination are decided in affirmative.
In short, the complainant deserves success.
In the result, we proceed to pass
ORDER
That the complaint be and the same is allowed exparte against the O.P. with cost of Rs. 2,000/-
That the O.P is directed to refund money of Rs.7,50,000/- to the complainants which has been paid as advance money to the OP within one month from the date of this order along with interest @10% p.a. effective from the date of final payment till realisation.
That the O.P is also directed to pay compensation of Rs.1,50,000/- for mental agony and harassment and Rs.5,000/- as litigation cost to the complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the OPs. within a period of one month from the date of this order, the defaulting O.P shall have to pay a sum of Rs.100/-per day, till its realization, as punitive damage, which amount shall be deposited by the O.P in the State Consumer Welfare Fund.
Let a plain copy of the order be supplied to the parties free of cost when applied for.
Member Member
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDER
That the complaint be and the same is allowed exparte against the O.P. with cost of Rs. 2,000/-
That the O.P is directed to refund money of Rs.7,50,000/- to the complainants which has been paid as advance money to the OP within one month from the date of this order along with interest @10% p.a. effective from the date of final payment till realisation.
That the O.P is also directed to pay compensation of Rs.1,50,000/- for mental agony and harassment and Rs.5,000/- as litigation cost to the complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the OPs. within a period of one month from the date of this order, the defaulting O.P shall have to pay a sum of Rs.100/-per day, till its realization, as punitive damage, which amount shall be deposited by the O.P in the State Consumer Welfare Fund.
Let a plain copy of the order be supplied to the parties free of cost when applied for.
Member Member
