Date of Filing : 18/04/2019

Date of Judgement : 08/06/2022

Mrs Sashi Kala Basu, Hon’ble President

This Complaint is filed Under Section 12 of the Consumer Protection Act 1986 by the Complainant namely Sri Partha Pratim Barman against the opposite parties (referred to as Ops hereinafter) namely 1. Arun Asish Chatterjee 2. Javed Ali Ansari 3. Shri Shankar Sil 4. Smt. Milan Biswas (Sil) and 5. Smt. Monimala Sil, allaging deficiency in service on their part.

The Case of the Complaint in short is that Op No. 3 to 5 were the owners of the property  being Kolkata Municipal Corporation Premises no 43 Mukundapur Kol-99. They entered into an agreement with the Op no. 1 to develop the property and to raise a multi-storied building and accordingly a joint venture agreement was executed among them on 29/06/2014. The Op no. 1 , the developer approached the Complainant to purchase one flat measuring an area of 708 square ft. super built up area and also informed the Complainant that he had engaged the opposite party no. 2 as a sub-contractor to complete the construction of the building. So on being approached and induced by The Op no. 1 and 2 The Complainant agreed to purchase the flat described in the schedule of the complaint at a total consideration money of Rs. 14.50,000/-. An agreement of sale was also executed  on 26/04/2016 between the Complainant and the Op no. 1, 3, 4 and 5 and The Op no. 2 had signed as a witness. Out of the total consideration price the Complainant at the time of execution of the agreement for sale paid Rs. 5,00,000/- by cheque to the Op no. 1 and 2 and subsequently paid further sum of Rs. 7,30,000/- to the Opposite Party no. 1 and 2 by cheque and also by cash. So the Complainant has paid the total sum of Rs. 12,30,000/-. In spite of the completion of the construction work of the flat the Opposite Parties did not hand over and deliver the subject flat to the Complainant. Lastly on 08/04/2019 the Complainant requested the Op to hand over and deliver the vacant possession of the subject flat but the Opposite parties failed, neglected and refused to hand over and deliver the vacant possession of the subject flat on receiving the balance consideration price. So the present complaint has been filed by the Complainant praying for directing the Ops to deliver the vacant possession of the schedule mentioned flat as per agreement for sale dated 26/04/2016, to pay compensation of Rs. 3,00,000/- and further to pay litigation cost of Rs. 50,000/-.

On perusal of the record it appears that the notices were sent to the Opposite Parties by regular process and also by way of publication in the newspaper but no step was taken by any of the Opposite Parties. Thus the case has been heard ex parte.

During the course of the trial the Complainant has filed affidavit-in-chief in support of his claim and ultimately argument has been heard. The Complainant has also filed the brief notes of the argument.

So the only point requires to be considered is whether the Complainant is entitled to the relief as prayed for.

Decision With Reason

In order to substantiate his claim that he purchased the flat as mentioned in the schedule of the complaint and has paid total amount of Rs. 12,30,000/- out of the total consideration price of Rs. 14,50,000/-, the Complainant has filed the passbooks and the statement of accounts showing the payment of the Rs. 12,30,000/-. A GD entry has also been filed by the Complainant which appears to have been lodged before the Survey Park P.S. complaining about the loss of the original agreement for sale. However a photocopy of the agreement for sale dated 26/04/2016 has been filed by the Complainant wherefrom it appears that the Op no. 1 being the developer and the Op no. 3 to 5 being the venders/owners agreed to sale the flat as described in the schedule ‘B’ of the agreement to the complaint. The said agreement appears to have been signed by the Complainant as purchaser and it is also signed by the developer the Op no. 1 and the Op no. 3 to 5 as owners. The Op no. 2 has also signed as a witness in the said agreement. On the date of the agreement the memo of consideration reflects that the Complainant paid cheque of Rs. 5,00,000/- to the Op no. 1 indicating that the purchase was made by the Complainant from the Developer’s allocations. It is true that the Bank statement of accounts as well as the passbook filed by the Complainant indicates that the payment has been made subsequently by the Complainant to the Op no. 2 towards the balance consideration price but the Complainant has specifically explained and stated in the complaint that he was informed by the Op no. 1, the developer that he had engaged the Op no. 2 as a sub-contractor to complete the construction work of the building. The relevant entries in the passbook and the bank statement of the account supports the said claim of the Complainant that he was informed by the Op no. 1 that the Op no. 2 was sub-contractor engaged by him and accordingly the payment was made to him. Since before this Commission there is absolutely no contrary materials to counter or rebut the claim of the Complainant, the Complainant is entitled to the relief of handing over the possession of the flat or in alternatively entitled to refund of the sum paid by him along with interest on the said sum.

Be it mentioned here that the Complainant has only prayed for delivery of the possession. Since he purchased the flat from developer’s allocation, The Op no. 1 and 2 are liable to hand over the same or is alternatively refund the sum.

Hence

                Ordered

CC/230/2019 is allowed ex parte against The Op no. 1 and 2 and dismissed ex parte against The Op no. 3 to 5. The Opposite party no. 1 and 2 are directed to hand over the flat to The Complainant as per agreement for sale dated 26/04/2016 within three months from this date on receiving balance consideration price of Rs. 2,20,000/- from the Complainant or in alternatively OP no. 1 and 2 shall refund the sum of Rs. 12,30,000/-paid by the Complainant along with interest on the said sum @ 8% p.a from the date of execution of agreement  to till this date within the aforementioned period of three months in default the sum shall carry further interest @ 8% p.a till realisation. They are further directed to pay litigation cost of Rs. 12,000/-within the aforesaid period of three months.