FINAL ORDER/JUDGEMENT

SMT. SAHANA AHMED BASU, MEMBER      :  

The brief facts of the instant consumer complaint is that complainant paid an amount of Rs.2,85,000/- part by part out of total consideration of Rs.13,00,000/- to the O.P.-1, Developer as per the  Agreement for Sale dated 02/05/2013 executed by and between the complainant

Contd. …. 2/-

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and O.P.-1 Developer, wherein the O.P.-1 committed to handover the finished flat, measuring 750 sq. ft. on the 3^rd floor of the land situated at 13, Bechu Doctor Lane, Dhakuria, Kolkata-700031, within 18 months from the date of execution of the Agreement for Sale. After lapse of the stipulated period the O.P.-1 Developer did not pay any heed to handover the subject flat to the complainant. Complainant made several requests to handover the flat, otherwise, refund the entire deposited money. Being harassed, the complainant lodged complaint before the Consumer Affairs Department. A meeting was held on 18/07/2019 and O.P.-1 agreed to refund the agreed amount within 10/09/2019. On 14/11/2019 said O.P. Developer issued a cheque of Rs.2,85,000/- with a commitment to pay Rs.50,000/- within May-2020 but the said cheque was dishonoured due to insufficient of fund. Finding no other alternative, the complainant filed this consumer complaint to get refund of his hard earned money and for other reliefs. 

Despite service of notice, the OPs have neither appeared in this case, nor filed any written version and did not contest the case. The case has proceeded ex parte against the OPs.

            We have travelled over the complaint petition, coupled with its annexure, E/Chief of the complainant and internet track reports of service of notices.

            Fact remains that the complainant has entered in an Agreement For Sale with the OP-1 on 02.05.2013 for purchasing of a self contained flat on the 3^rd floor at North-West side, measuring 750 sq. ft. approx of the land situated at 13 , Bechu Doctor Lane , Ward No 01 of the Kolkata Municipal Corporation , Kolkata- 700031 , P.S Kasba , Dist – South 24 Parganas for a total  consideration of Rs. 13,00,000/- . It is also evident from documents on record submitted by the complainant that the complainant paid Rs.2,85,000/- to the OP-1 from time to time as per the terms of the Agreement. It is alleged by the complainant that the complainant has been paying the amount to the OP-1 , but the OP-1 failed discharge his part of obligation as per the Agreement for Sale  and that too failed to handover the flat to the complainant by violating the terms and conditions of the Agreement dated 02/05/2013.

It appears from the Agreement for Sale dated 02/05/2013 that O.P.-1 was agreed to handover the subject flat to the complainant within 18 months from the date of execution of such Agreement for Sale.  Therefore, it was the bindings upon the OP-1 to hand over the peaceful possession of the finished flat to the complainant on 02.11.2014 in terms of the Agreement for Sale. But the OP-1 failed to discharge his part of obligation, which tantamount to deficiency in service on its part. 

            Moreover, it is found from the mediation was held on 18/07/2019 by the Consumer Affairs Department in presence of the Ld. Lawyer for the O.P.-1 and the complainant and the OP-1 submitted before the Consumer Affairs Department that he would refund the entire amount of Rs.2,85,000/- to the complainant along with interest and accordingly  on 14.11.2019  the OP1 issued a cheque amounting to Rs. 2,85,000/- in favour of the complainant and  at the

Contd. …. 3/-

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same time the OP1 undertook that Rs.50,000/- would pay to the complainant within May 2020 but the said cheque was dishonoured by the Bank due to insufficient of fund. From such gesture of the O.P.-1, it is crystal clear to us that O.P.-1 practiced unfair trade practice too. 

            In spite of receiving the notices, none came from the side of the OP-1 and Pro O.Ps.-2 to 5 to contest the case or controvert the version of the Complainant as adduced in his evidence. The evidence of the Complainant remains in unchallenged and uncontroverted. In absence of any contrary and controverting materials on record, and having regard to the documents on record, we think that the Complainant has been able to establish his case.

We do not find any case against the Pro O.Ps.-2 to 5.

Thus, we are constrained to hold that the OP-1 has exhibited a gesture of unfair trade practice as well as deficiency of service. The Complainant is as such entitled to get the relief as prayed.

In result, the case succeeds.

Hence ,

Ordered

that the OP-1 is directed to refund the deposited amount of Rs.2,85,000/- to the complainant along with simple interest from the date of its filing till its realization. 

The OP-1 is also directed to pay Rs.10,000/- as litigation cost to the complainant.

Liberty be given to the complainant to put the order into execution, if the OP transgress to comply the order.