SAMIKSHA BHATTACHARYA, MEMBER
This application has been filed by the Complainants u/s 17 of C.P. Act , 1986.
Brief facts of the case are that the Complainants , being the husband and wife, approached the OPs to purchase a flat and after negotiation they agreed to purchase a residential flat at premises No. 40G , Dharmatala Road , P.S. Kasba , Kolkata -42. The Complainants agreed to purchase the entire 3rd floor being flat No. 3A , measuring about 1302 sqft. super built up area together with the car parking space from the developer’s allocation. Accordingly, an Agreement for Sale was executed on 24th April, 2015. The consideration amount was fixed at Rs. 53 lakhs apart from service tax of 3.09 % . Therefore, the total consideration was fixed at Rs. 54,63,770/-. As per Agreement it was agreed by and between the parties as specified in point no. 3.3 of the said Agreement that the developers shall hand over peaceful vacant possession of the said flat and car parking space to the Complainants on or about 18 months from the date of execution of the Agreement i.e., 24.04.2015 . It was also agreed that the owner of the property Mr. Ashim Kumar Chakrobarty together with the developers being the OPs. shall execute and register the Deed of Conveyance in favour of the Complainants upon payment of entire consideration by the Complainant on or before 18 months from the date of execution of the Agreement of Sale in favour of developer . The grace period of handing over the possession of the flat and car parking space by the OPs. to the Complainants was 3 months and the last installment of the consideration amount shall be paid at the time of giving the possession of the said flat and car parking space or at the time of execution and registration of Deed of Conveyance, whichever is earlier.
On the date of execution of Agreement of Sale Complainant paid Rs. 30,00,000/- only by cheque out of entire consideration amount . Subsequently, Complainant paid Rs. 2,00,000/- on 08.10.15, Rs. 3,00,000/- on 27.11.15. , Rs. 2,00,000/- on 26.02.16 and Rs. 4,00,000/- on 29.08.16 . Therefore, Complainants already paid Rs. 41,00,000/- in total . Inspite of such payment the OPs failed to complete the work of the concerned flat in as much as the building as a whole. Complainant No. 2 regularly requested the OPs for competition of construction work within the specified period. But all such requests fell into deaf ears. OPs only gave the false assurance even after receipt of about 80% of total consideration amount. Finding no other alternative Complainant sent a legal notice on 15.08.2017. But no reply came from the end of the OPs. Hence, the application praying for an order to execute and register the Deed of Conveyance after completion of the construction of the flat in question and upon receiving the balance consideration amount and to give possession letter and completion certificate or to return Rs. 41,00,000/- along with interest @ 18% p.a. , compensation and cost.
Though the notice was duly served upon OP No.2 none appeared on behalf of OP No.2 nor filed any W.V though several opportunities were given. Service upon OP No.1 has been completed through paper publication . Inspite of such notice none appears on behalf of OP No.1 also . Hence, the matter was heard ex parte.
It is admitted fact that Complainants entered into an Agreement for Sale with the OPs. on 24.04.2015 to purchase entire 3rd floor being flat no. 34 measuring about 1302 sqft super built up area and a car parking space measuring 120 sqft. The developer has agreed to sale the aforesaid flat and car parking space at a total consideration of Rs. 53,00,000/- and service tax. In the Agreement it was stated that the owner Shri Ashim Kumar Chakrobarty is being represented by his constituted attorney Sri Malay Bose, son of late Sukhendu Mohan Bose and the OP No. 1 M/s Amrapali Property Consultants is represented by one of its proprietor Sri Malay Bose, son of Late Sukhendu Mohan Bose.
From the agreement for sale it was clearly stated that a sum of Rs. 30,00,000/- was received as advance from the purchaser out of total consideration of Rs. 53,00,000/- in respect of the flat and car parking space mentioned in schedule B as per memorandum of consideration ( page – 31 of Agreement for Sale dated 24.04.15). In support of complaint petition Complainant annexed all the receipts towards payment of Rs. 41,00,000/- . We find that Complainant paid Rs. 16,00,000/- by cheque being No. 000013 dated 01.04.15 drawn on HDFC Bank, Rs.11,00,000/- by cheque No. 000003 dated 01.04.15 drawn on HDFC Bank, Rs. 3,00,000/- by cheque being No. 108186 dated 01.04.15 drawn on Canara Bank. Complainant annexed the photocopy of the receipt in support of their abovementioned payment of Rs. 30,00,000/- as per memo of consideration on the date of execution of Agreement for Sale . Complainant also annexed the receipts of payment issued by OP No.1 and signed by Op No. 2 towards their payment of Rs. 11,00,000/- by way of several cheques on different dates. So, there is no doubt that Complainants already paid Rs. 41,00,000/- out of entire consideration amount.
As per provision of point no. 3.3 of the concerned Agreement executed by the OPs, it was agreed that the OPs shall hand over the complete and vacate possession of the flat including the car parking space to the Complainant within the period of 18 months from the date of execution of the Agreement i.e. 24.04.15 or within a further grace period of 3 months which means within 21 months from April 2015. Therefore, the grace period has already expired on 25.01.17. Due to unchallenged testimony we have nothing to disbelieve the documents furnished by the Complainants annexed with the complaint petition. It is obvious that the OPs have failed and neglected to comply with the terms and conditions of the said Agreement and have failed to deliver the possession of the flat and car parking space to the Complainants .
At the time of hearing Ld. Lawyer for Complainants submitted that the flat is lying in an incomplete condition and no endeavour has been made to complete the flat by the OPs, till date. It is clear that action of the OPs definitely amounts to causing undue harassment and mental agony and shattering of expectation of the Complainants .
Upon consideration of above discussion and as per submission advanced by Ld. Counsel by the Complainants we are of the view that the OPs have made deficiency in service and as such Complainants are entitled to get relief. Since the flat is in incomplete position till date we are in the view that OPs are liable to refund the amount paid by the Complainant along with interest as compensation for prolonged harassment and causing mental agony.
Accordingly the complaint petition succeeds.
Hence,
The case being No. CC/801/2017 is allowed ex parte with cost . The OPs are directed to refund Rs. 41,00,000/- , which amount was paid by the Complainants on different dates from 24.04.15 to 29.08.16 within 60 days from the date of this order.
The OPs are also directed to pay compensation in the form of simple interest @10% p.a. w.e.f the date of each payment till the date of full refund and a sum of Rs. 10,000/- as litigation cost to the Complainants.
With this direction the present consumer complaint stands disposed of.
