HON’BLE SUDIP NIYOGI PRESIDENT FACTS In a nutshell the complaint case is that: - The Petitioner had entered into one agreement with Oriental Sales Agencies (India) Private Limited (the Lessor) of the 1st part, Emami Realty Limited, the OP herein (the Developer) of the 2nd part for buying the one flat being no. E1 – 602 on the 6th floor in the housing complex “Emami City” measuring of about 2600 sq. ft. more or less, together with the right to park one car in the basement thereof at premises no. 2 Jessor Road, Kolkata – 700028. The Petitioner was shown in the agreement as a Sub-lessee and provisional allotment letter was also issued on 12.04.2016. In the said agreement that is in the Sub-lease agreement, possession of the flat was agreed to be handed over by March, 2017 with a grace period of 9 months. It was also agreed that if the OP fails to complete the said flat within the said stipulated time in that event, another grace period of 6 months would be allowed. It was also agreed that during the said grace period, the OP shall be liable to pay the Petitioner interest on the amount paid by him at the rate of the then prevailing SBI PLR. The OP would be given a further grace period of 6 months if required, but in that event, they would be liable to pay interest at the rate of prevailing rate + 2%. But the OP could not complete the flat and hand over the same, within the said period. So, the Petitioner was not willing to continue to complete the agreement and requested the OP to refund the amount of Rs.68,17,228/- that he had paid to the OP in connection with his flat along with interest @ 18% per annum. The Petitioner made payment on various occasions as and when demanded by the OP. Subsequently, the Petitioner received a cheque of a sum of Rs.42,04,650/- dated 31.07.2020 from the OP. So, after adjustment of the said amount of cheque a sum of Rs.26,12,578/- is still lying due which is claimed by the Petitioner. But OP fails to pay the said amount to the Petitioner. So, he filed the instant case praying for refund of the said amount along with the interest, compensation and cost of litigation etc. OP did not contest the case by making the appearance and filing any written version or evidence despite service of notice upon them. So, the complaint was heard ex parte against the OP. POINT FOR CONSIDERATION - Whether the Petitioner is entitled to the relief(s) as prayed for?
- FINDINGS
Petitioner filed his evidence along with documents and Brief Notes of Argument. The documents include original sub-lease agreement dated 10.05.2016, provisional allotment letter dated 12.04.2016, demand letter dated 12.04.2016, allotment of car parking dated 21.10.2019, four (4) money receipts of different dates in the year 2016, letter of OP and letter issued by the Petitioner and original postal receipt. From the petition of complaint, evidence and the documents, it is clear that the Petitioner is found to be a ‘Consumer’ within the definition of Consumer Protection Act, 2019, who had booked the flat in question to be built by the OP for which necessary agreement was entered into between the concerned parties. The necessary allotment was also issued to the Petitioner. The money receipts dated 02.03.2016; 09.05.2016; 03.06.2016 & 14.07.2016 produced by the Petitioner, revealed that he had paid Rs.68,15,228 to the OP. However, Annexure – ‘D’ which is found to be a letter issued by the OP regarding the refund of partial consideration in respect of the amount of the flat produced by the Petitioner, it revealed that OP admitted therein that Petitioner had deposited with them a sum of Rs.68,17,228/- for his flat. It is further found which is also admitted by the Petitioner that OP refunded an amount of Rs.42,04,650/- by a cheque dated 31.07.2020 to the Petitioner and admittedly Petitioner accepted the said cheque and this amount is part of his claim towards refund from the OP. So, the Petitioner is further entitled to Rs. (68,17,228.00/ - 42,04,650/-) = Rs.26,12,578/- from the OP. Therefore, The Petitioner is entitled to the said amount from the OP along with interest @9% p.a. from the date of 01.08.2020 as the cheque of the part payment of the amount refund made by the OP was dated 31.07.2020. This apart, Petitioner is also entitled to Rs.5,000/- towards cost of litigation. No separate amount towards his prayer for compensation is allowed considering the amount of interest awarded on the principal amount. Accordingly it is, ORDERED That the instant case be and the same is allowed ex parte against the OP. OP is directed to pay a sum of Rs. 26,12,578.00/- (Rupees Twenty-Six Lakh Twelve Thousand Five Hundred Seventy-Eight Only) along with interest @9% p.a. to the Petitioner from 01.08.2020 until realization in full. OP is to further pay to Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation to the Petitioner. The above Order shall be complied with by the OP within 45 days from the date of this Order failing which the Petitioner shall be at liberty to realize the same in accordance with law. Dictated and corrected by me | 
