Date of filing : 25.02.2019
Date of Judgement : 22.11.2023
Shri Subir Kumar Dass, Hon’ble Member
The complainant entered into an agreement for sale with OP1 represented by OP2 in respect of sale of a piece of land measuring about 2160 sq.ft. comprising of Dag No.48 Khatian No.1144, J.L.No.154, Mouza Pirkhali, P.S.Bishnupur marked as Plot No.C62 Block-( C ) in the master plan “Baruipur Enclave” under Julpia Gram Panchayet on 21/11/2011 for which payment of Rs.1,80,966/- was made by the complainant and received by OP2 on behalf of OP1 as reflected in the said agreement for sale. Thereafter the complainant went on paying more amount on different dates upto 30/06/2013 which collectively stood at Rs.4,17,864/- inclusive of the payment of Rs.1,80,966/- reflected in the agreement for sale, out of total of consideration of Rs.5,10,000/- to the OP1 represented by OP2. Thereafter letter of allotment dated 27/05/2011 was issued by OP1 in favour of the complainant. Though in terms of the agreement for sale, the said project (Baruipur Enclave) was scheduled to be completed with all respect by December 2013, the complainant on visiting the site on different dates from 01/09/2013 onwards found that no development work was undertaken by OP1 in terms of the agreement for sale. The complainant finding no other way made request in writing on 02/01/2014 to the OPs for refund of the money already paid by him but of no use. On verbal assurance of one Mr.Sukanta Ghosh, an employee of the OP, complainant further waited upto December 2017. Thereafter the complainant came to know in March 2018 that the OPs have not done any development work on the site of the said project. Advocate’s letter on behalf of the complainant dated 21/06/2018 was served upon the OPs demanding refund of the amount paid with interest. But again the OPs paid a deaf ear to it. Thereafter complainant filed this complaint before this commission with the prayer to direct the OPs to refund Rs.4,17,864/- along with interest and to pay compensation of Rs.2,00,000/- and cost of litigation of Rs.50,000/-.
The OPs contested the case by filing written version wherein it is stated that complainant initiated to purchase four plots of land, hence the contract is of commercial nature. They also contended that the project was ready but the complainant was negligent in taking initiative to get possession and registration of the plot.
POINTS TO BE DECIDED
Whether the complaint is entitled to get relief(s).
DISCUSSIONS AND FINDINGS
During the proceedings OPs filed petition challenging maintainability of the case which on being heard and considered was rejected.
The complainant adduced evidence together with copy of documents which includes agreement of sale and money receipt.
The OPs though filed the written version, did not file questionnaire against the evidence of the complainant and thereafter Shri Tapan Ghosh,OP2/Managing Director of OP1 on being produced from Baruipur Correctional Home on 29/12/22 submitted that he will not adduce any evidence. He also submitted that he will pay 50% of the principal amount by 7/2/23 but thereafter on different dates though he appeared, failed to make any payment.
We have applied our mind and meticulously gone through the materials on record. In the written version submitted by OPs we do not find any reasonable ground and proof in support of OP’s contention that the project was ready for delivery. Moreover there was no denial on the part of the OPs with respect to receipt of the payment made by the complainant in terms of the agreement for sale dated 21/11/2011.
Further OP2 by way of making submission that they will not adduce any evidence together with commitment of refund of 50% of the principal amount to the complainant, made it crystal clear that the project was not ready for delivery and there was an established fact of deficiency in service by way of making breach of contract as per the agreement for sale.
By all means we are of the opinion that non filing of evidence and assurances of making payment by the OP2 is a clear cut proof of deficiency in service on the part of the OPs.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
Hence it is
ORDERED
That CC No.111/2019 is allowed on contest with cost
- OP2 is directed to refund the amount of Rs.4,17,864/- along with interest @9% p.a. for the period from the date of last payment made by the complainant i.e. 30/06/13 till the date of actual payment.
- OP2 is further directed to pay Rs.50,000/- as compensation to the complainant. .
- OP2 is also directed to pay Rs.20,000/- towards the cost of litigation to the complainant.
All the above payments should be made within 45 days from the date of this order.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
