Order-30.

Date-06/09/2016.

This is an application u/s.12 of the C.P. Act, 1986.

          The case of the Complainant in short is that the complainant entered into an agreement for sale on 01-04-2009 with OP1 for purchase of a flat measuring about 650 sq.ft. including super built up area on the 3^rd floor as prescribed in Schedule – B of the plaint. The total consideration has been stipulated as per the said agreement to be of Rs.10,00,000/- (Rupees Ten Lakhs), out of which the complainant has already paid Rs.3,50,001/- till the execution of the said Deed of Agreement for Sale dated 01-04-2009 in five instalments and the Developer i.e. OP1 has acknowledged the receipt of the same. It was agreed between the parties that the complainant would pay Rs.4,00,000/- as advance consideration money and the Developer would deliver the vacant possession of the flat to the complainant on receiving the said amount. So as per the said agreement the complainant also paid Rs.25,000/- on 04-09-2009 and Rs.25,000/- on 30-12-2009 to the complete the agreed advance consideration amount of Rs.4,00,000/-. The Complainant thereafter requested the O.P.No.1 to deliver the vacant possession of the flat to her. OP1 assured that the flat would be deliver to her very soon. Thereafter the Complainant and her husband on repeated occasions met the OP1 and requested him to deliver the possession of the flat to the Complainant immediately but to no good. The Complainant has alleged deficiency in service against OP1 and also unfair trade practice. The Complainant has prayed for vacant possession of the flat, alternatively refund Rs.4,00,000/- with interest along with other reliefs as stated in the instant petition of complaint. 

          OP1 has contested the case in filing written version contending inter alia that the instant complainant is not maintainable in law and in fact and it is stated that the purported complaint is misconceived. This OP has also denied each and every allegations and the statements content in the complaint. It is denied that the Complainant visited OP1 for clearing or payment of balance amount or execution of Deed of Conveyance for the said flat. It is alleged that due to non-payment of consideration money, this OP was not able to complete the project within schedule time. The allegation of deficiency of service and unfair trade practice as alleged is also denied by this OP.  This OP has prayed for dismissal of the case.       

OP2 has not contested the case, the case has proceeded ex parte against OP2.

Point for Decision

1. Whether OPs are guilty of deficiency of service?
2. Whether OP1 has put up a gesture of unfair trade practice?
3. Whether the complainant is entitled to get the reliefs as prayed for?

Decision with Reasons

We have travelled over the documents on record namely agreement for sale in between the complainant and OP1 and OP2 being the Developer and the Owner/Vendor respectively, money receipts issued by OP1 on different dates in favour of the complainant, letters to different authorities by the complainant as filed from the side of the complainant. It appears that OP2 is the Owner of piece of land measuring about 4 cottahs 13 chittacks and 30 sq.ft. more or less lying and situated at Premises no.22B, Pashupati Bose Lane, P.S.- Shyampukur, Kolkata-700 003. It also appears that OP1 being the Developer started joint venture development with the help of OP2 and the complainant booked one flat of 650 sq. ft. on the 3^rd floor by making payment of Rs.4,00,002/- in five instalments and the Developer i.e. OP1 has acknowledged the receipt of the same.  We have also seen the money receipts on different dates on record. It appears that the Complainant as per the Deed of Agreement paid Rs.4,00,002/- to OP1 and has paid the agreed advance consideration amount as such. It also appears that OP1 failed and neglected to deliver possession of the flat in favour of the complainant. It appears that the OP1 has not complied with the stipulation of the agreement for sale. It is given to understand to us at the time of argument from both sides that OP1 has disposed of the flat to a third party and there is no other flat left at this moment in the project for handing over to the complainant at this moment on receiving the balance consideration money.  It appears that OP1 has used the said amount of Rs.4,00,002/- deposited to him for his personal gain and use.   OP1 as we find has received the money and has not delivered the possession of the subject flat to the complainant as per the terms of the Agreement for Sale.  We think that it is a deficiency in rendering services on the part of the OP1.   OP1 has also exhibited a demeanour of unfair trade practice in not delivering the possession of the subject flat to the Complainant when he has received the money and sat tightly over the issue without solving the problem or acting in terms of the stipulation of Agreement for Sale.  We accordingly are inclined to hold that OP1 is guilty of deficiency of service as well as unfair trade practice.

In result, the case succeeds.

Hence,

Ordered

That the case be and same is allowed on contest against the OP1 and ex parte against OP2.  OP1 is directed to refund advance consideration of Rs.4,00,002/- along with interest  at the rate of Rs.9 percent p.a. with effect from 01-04-2009 till compliance within one month henceforth. OP1 is also directed to pay an amount of Rs.50,000/- to the complainant for causing harassment, mental agony and unfair trade practice apart from litigation cost of Rs.10,000/- within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order in execution under Section 25 read with Section 27 of C.P. Act and in that event the OP1 will be liable to pay penal damage  at the rate of Rs.5000/- per month to be deposited to this Forum till full and final satisfaction of the decree.

We make no order as against OP2.