Judgment : Dt.7.4.2017

Mrs. Balaka Chatterjee, Member.

            This petition of complaint is filed under Sec.12 of C.P.Act, 1986, by Sri Debasish Ghosh, son of Late Ashim Kumar Ghosh, against Biswas Construction, represented by its proprietor and Ananda Narayan Biswas and Jayanta Das.

            Case of the Complainant in brief is that the Complainant entered into a tripartite agreement for sale on 25.12.2012 with the OP No.1 Developer and OP No.3 Land-owner in respect of a flat at first floor at a proposed multistoried building to be constructed within the premises being No.151, Roy Bahadur Road, mailing address 121/D, Roy Bahadur Road, Behala, Kolkata-700 034. As per terms of the said agreement the Complainant had paid Rs.8,50,000/- to the developer towards booking/advance amount by cash and cheques on different dates which were duly acknowledged by the said developer. It is further stated by the Complainant that as per terms of the said agreement the OP developer ought to have completed the construction of the said flat by completion by casting the roof of the first floor of the said building. It is  also stated that the developer failed to complete the said construction within the agreed period even thereafter some considerable spells of time as the Complainant on request of the developer granted the same on several occasions. Finally, the developer by a letter dt.16.5.2014 admitted that he would not be able to complete the said flat within the agreed period of time and thus was agreeable to refund the booking amount. The Complainant decided to get back the booking amount and, accordingly, approached the developer for refunding the same. It is the specific allegation of the Complainant is that in spite of request on several occasion did not refund the balance amount of Rs.3,10,000/-. Accordingly, the Complainant has prayed for direction upon the OP to pay back Rs.3,10,000/- to the Complainant within a fortnight, to pay Rs.100/- per day from 16^th May, 2014 till date for harassment, mental agony, to pay Rs.5,000/- towards litigation costs, to pay interest @ 18% for keeping his hard earned money idle for so many years and to restrain the OP Nos.1 & 2 and their men and agent from transferring the said flat in favour of any third person before disposal of the case and to pass such other order.

            Notices have been served but the OPs did not turn up and, thus, vide Order No.11 dt.7.3.2017 the case was fixed for ex-parte proceedings.

            The Complainant has adduced evidence-on-affidavit. In course of hearing Ld. Advocate for the Complainant has narrated the fact as mentioned in the petition of complaint.

Decision with reasons

            It is evident from the un-challenged evidence, including copies of the money receipt, that the Complainant has paid Rs.8,50,000/- to the OP developer. The Complainant has admitted that he received Rs.5,40,000/- from the OP developer towards refund of booking amount. However, the allegation is that the balance amount of Rs.3,10,000/- has not been received by the Complainant so far. It is evident from the record that the OP developer was agreeable to refund entire booking amount, but no document has been furnished to us. Therefore, we are of opinion that the balance amount of Rs.3,10,000/- has not been refunded by the developer so far.

            Since the developer has rolled the balanced amount in his business so far he is liable to pay interest thereon @ 10% p.a. from June, 2014 till full realization thereof. Further, the Complainant has been compelled to file the instant case due to failure on the part of the OP developer in refunding the balance amount. So, the OP developer is liable to pay the cost of litigation.

            In the result the petition succeeds in part since no relief has been claimed against OP No.3 the case is dismissed against him.

            Hence,

ordered

            That CC/618/2016 is allowed in part ex-parte against the OP No.1 & 2 and dismissed ex-parte against the OP No.3.

            The OP Nos. 1 & 2 are directed to refund an amount of Rs.3,10,000/- with interest @ 10%p.a. accrued thereon from June, 2014 till full realization thereof within one month from the date of communication of the order, in default, a further interest @ 12% upon the entire amount for the default period.

            The OP Nos.1 & 2 are further directed to pay an amount of Rs.10,000/- towards litigation cost within the aforesaid period.