This is a complaint made by one Asis Kumar Kundu, son of Gopal Chandra Kundu, 6/1, Dr. M. N. Chatterjee Sarani, P.S.-Narikel Danga, Kolkata-700 009 against Dipankar Sarkar, proprietor of D-Zyner’s Desire, having its registered office at 511/3, Vivekananda Sarani, P.O. & P.S.-Thakurpukur, presently Haridevpur, Kolkata-700 063 and also residing at 165/N, Das Para Road, P.O. & P.S.-Thakurpukur, Kolkta-700 063, praying for (a) direction upon the OP to refund the amount of Rs.1,53,000/- with interest @ Rs.18% p.a., (b) direction upon the OP to pay compensation of Rs.3,00,000/- for his suffering from mental pain, agony and harassment and (c) direction upon the OP to pay Rs.10,000/- as litigation cost.
Facts in brief are that the Complainant was in search of a suitable accommodation within Behala Thakurpukur area and came in contact with OP No.1 Sri Dipankar Sarkar who represented himself as a developer and proprietor of a proprietorship firm under name D-Zyner’s Desire having his office at 511/3, Vivekananda Sarani, P.O. & P.S.- Thakurpukur, Kolkata-700 063. On the representation of OP No.1 about the timely construction of the building, Complainant booked a flat measuring 610 sq.ft. super built up area on the 2nd floor of the proposed partly G+3 building at a total consideration of Rs.6,00,000/-, out of which Complainant paid a sum of Rs.1,00,000/- as booking money on 19.2.2010.
It was agreed that OP shall deliver the possession of the flat within 10 months. Thereafter, Complainant paid to the OP Rs.1,00,000/- and further a sum of Rs.1,15,000/-. The Complainant with the intention to collect the balance amount of Rs.3,50,000/- from the Bank as bank loan contacted the Co-operative Bank, Thakurpukur Branch, for Bank loan and the bank asked the Complainant to supply the papers and documents relating to title deed of the land, KMC tax receipts, development agreement, power of attorney, sanctioned building plan which are necessary for sanctioning the loan. But, OP did not provide these papers to the Complainant and so Complainant could not avail the bank loan.
Suddenly, Complainant’s wife passed away in July, 2011 and Complainant suffered depression and mental shock. As a result, Complainant asked the OP to refund the money which he has paid. OP No.1 till this day did not refund the money promised by him to the Complainant, excepting the payment of Rs.1,37,000/-. Despite his repeated demands OP No.1 did not pay the money. So, Complainant filed this case for refund of Rs.1,53,000/-.
Decision with reasons
On the basis of above facts, the complaint was admitted and notices were served upon the OP. But, OP did not appear and did not file written version to contest the case. Accordingly, this case is heard ex-parte.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
The first prayer of Complainant is refund of Rs.1,53,000/-. In this regard, it appears from the complaint petition that Complainant paid a sum of Rs.1,00,000/- as booking money on 19.2.2010. Thereafter, Complainant paid Rs.1,15,000/- to the OP.
Now, Complainant is asking refund of Rs.1,53,000/-, because he has asserted that there was a talk between him and OP that OP will refund of Rs.2,90,000/- instead of Rs.2,15,000/- which Complainant had paid to the OP. However, this appears to be oral submission of the Ld. Advocate and there is no document filed to establish that such a talk took place between the parties. Even if the case is heard ex-parte, it is the incumbent duty of this Forum to see that justice is being done.
In the circumstances, it appears that the prayer for refund of Rs.1,53,000/- is not justified. At best, Complainant is entitled to Rs.78,000/- from the OP, because Complainant has not received this amount till now.
Further, it appears from the agreement for sale that it was entered on 19.2.2010. So, at best, Complainant can get interest on this amount, after the expiry of the stipulated period during which OP was to hand over the flat. As such, Complainant is entitled to interest @ 9% p.a. from 1.1.2011.
There is no material for granting compensation and litigation cost in favour of the Complainant.
Hence ,
ordered
CC/384/2016 and the same is allowed ex-parte. OP is directed to refund Rs.78,000/- with interest @ 9% p.a. from 1.1.2011.
