This is a complaint made by one Deepankar Chakraborty son of Late K. C. Chakraborty of 49/5, Netaji Subhas Road, P.S. Behala, Kolkata-700034 against Construeres, a proprietorship firm having its registered office at 114, Satyen Roy Road, P.S. Behala, Kolkata-700034 being represented by Proprietress Smt. Chanchalika Mondal wife of Sri Kashinath Mondal  of 138, Banamali Naskar Road, “Kasturi Apartment”, Flat No.301, P.S. Parnasree, Kolkata-700039, Asim Kumar Ganguly, Alok Kumar Ganguly, Amit Kumar Ganguly praying for direction upon the OP No.1 to refund the booking money of Rs.5,00,000/- with interest @ 18% p.a. and compensation of Rs.5,00,000/-  for hike/escalation of market value of flat in the area and litigation cost.

            Facts, in brief, are that Complainant on being asked by the OP No.1 visited the site of the building where he was handed over the Xerox copy of the development agreement dated 30/04/2014. After perusal of the said development agreement and visiting the building site personally became satisfied for purchasing a flat measuring about 746 square feet on third floor and entered into an agreement for sale of that flat. In the development agreement he could know that OP No.2 to 4 are owners of the land and this development agreement was executed for some residual works of the building at 174/13, B. L. Saha Road, Kolkata-700053. It was agreed between Complainant and OP No.1 that Complainant will purchase the flat at price of Rs.20,00,000/- and Complainant paid Rs.5,00,000/- as booking money to OP No.1 in terms of the agreement on 20/05/2015. The possession was to be handed over to the Complainant and Registered Deed was also to be made. Complainant in the month of August, 2015 visited the building site and learnt that no work was done to complete the flat. Complainant since month of August, 2015 number of times visited the site but found that flat was not completed. Suddenly OP No.1 handed over three post dated cheques all drawn on Indian Overseas Bank Gariahat Branch vide Cheque No.290991 dated 20/10/2015 for Rs.1,00,000/- , Cheque No.290990 dated 20/11/2015 for Rs.80,000/-  and Cheque No. 2990992 dated 16/11/2015 for Rs.1,00,000/- to the Complainant expressing her inability to complete the construction within time. So Complainant lost faith on OP No.1. All the three cheques were dishonoured on presentation with reason “Fund Insufficient” for which Complainant suffered a loss of Rs.450/- . Further, OP No.1 did not pay the rest of the money to the Complainant within that period. Xerox copy of the said three cheques with return memos are Annexure ‘C’ and ‘D . So Complainant filed this case.

            OP No. 2, 3 & 4 filed written objection and denied all the material allegations of the complaint. They have admitted that as per development agreement dated 30/04/2014 developer was to do some residual works because the power of attorney in favour of another developer to construct the building was revoked. Further, OP has stated that developer took all the flats at the ground floor. OP No.2 to 4 executed the power of attorney in favour of OP No.1. OP No. 2 to 4 has no liability in this regard. OP No.1 developer did not appear and contest the case. So the case was heard ex-parte against OP No.1.

            Decision with reasons

            Complainant has filed affidavit-in-chief but OP No.2 & 4 did not file questionnaire against them and so the case was fixed for evidence on behalf of OP and thereafter argument.

            The main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            First prayer is to refund of Rs.5,00,000/- with interest @ 18% p.a.

            On perusal of the Xerox copy of the agreement it appears that it has only been signed on page 23 and 24 by the purchaser and the Proprietress of Construeres Smt. Chanchalika Mondal, a Proprietorship Firm but the seal of the firm not affixed on either of the page of the agreement for sale. Further it appears that purchaser paid Rs.5,00,000/- in cash. No date has been mentioned on which it was paid. Xerox copy of the agreement for sale reveals that the agreement was entered on 20/05/2015. There is no explanation forthcoming as to why the other 21 page of the agreement for sale have not been signed by either of the parties. The last two pages can be inserted afterwards in the agreement for sale. Xerox copies of cheques which have been mentioned in complaint petition have not been filed, from which it would have been clear that the allegation of the Complainant made in the complaint petition is true.

            Accordingly, we are of the view that Complainant failed to prove the allegation mentioned in the complaint petition.

            Hence,

 O R D E R E D

            CC/9/2016 and the same is dismissed ex-parte.