DATE OF FILING : 20-10-2011.
DATE OF FINAL ORDER : 20-04-2012.
Sri Bikash Kumar De
Badla, Kanla, Dist. Burdwan.
Presently working at :-
C/o Bharat Industries
Braja Nath Lahiri Lane,
P.O. Santragachi, P.S. Jagacha,
District –Howrah COMPLAINANT.
Versus -
Global Developers
Rep. by -
Mr. Nirmal Ghosh
9/1/1, Ram Charan Sett Road,
Ramrajatala, P.S. Jagacha, Dist. Howrah.
Norode Chandra Barua,
Rep. by Constituted Attorney
Mr. Nirmal Ghosh.
Sandip Lumar Dhole
22/3/4, Chowdhury Para Lane,
P.O. Santragachi, P.S. Shibpur, Dist. Howrah.
Sandip Ghosh
G.I.P. Colony, P.O. GIP Colony,
P.S. Jagacha, Dist. Howrah. Opp. Parties.
P R E S E N T
1. President : Shri T.K. Bhattacharya. MA, LLB, WBHJS.
2. Member : Smt. Samiksha Bhattacharya.
3. Member : Shri P. K. Chatterjee
F I N A L O R D E R
Briefly stated the facts leading to the filing of the present complaint are that the complainant employed under a private firm in the district of Howrah executed an agreement on 18/09/2010 with the o.ps. for purchase a self contained flat situated at the middle side of the 1st floor measuring about 820 sq. ft. including super built up area upon the holding No. 55/4, Baksara Village Road, P.S. Shibpur, Dist. Howrah. The complainant also agreed to pay Rs. 7,38,000/- being the consideration amount to be paid by the complainant to the O.Ps. on different dates as per the schedule mentioned in the agreement for sale of flat dated 18/09/2010.
The complainant deposited Rs.2,50,000/- in 3 (three) different occasions through cheque bearing Nos. (i) 253354 dated 30/09/2010 for Rs.1,00,000/-, (ii) 253355 dated 29/10/2010 and (iii) 253361 dated 14/12/2010 in the dated receipt in favour of Global Developers.
The complainant repeatedly persuaded the matter with the O.Ps. for handing over the flat but on the contrary the O.Ps. taking any fruitful attempts vehemently refused to handover the possession of the flat within the specified time mentioned in the agreement. Having found no other alternative the complainant visited the proposed site on 05/01/2011 and being aggrieved by the attempt of delaying the total matter by the O.Ps. desiring to terminate the agreement he requested the O.Ps. to return the amount paid as the earnest money.
Getting no other way, the complainant filed the present case as he suffered harassment, mental agony as he was deprived from taking over possession of the schedule flat and prayed relief and compensation.
As the case was registered against case No. HDF 81 of 2011 the notice was properly served to the O.Ps. through Registered A/D and the same was returned back by the postal authority with the remarks Addressee Moved. In spite of paper publication in the local news paper (Sangbad Pratidin) on 13/02/2012, the O.Ps. neither appeared personally nor through their representative for which the case was heard ex parte.
Now, two moot questions arose for determination -
Whether there is any deficiency in service on the part of the O.Ps. in terms of the agreement for sale executed by and between the parties.
Whether the complainant is entitled to get reliefs as prayed for ?
Decision with reasons
All the points are taken up together for consideration for the sake of convenience of brevity.
It is a fact that the complainant entered into an agreement on 18/09/2010 with the O.Ps. for purchase of a flat measuring an area of 820 sq. ft. against consideration of Rs. 7,38,000/- to be paid time to time as per schedule annexed with the executed agreement made and the complainant paid an amount of Rs.2,50,000/- towards earnest money through 3 nos. cheques which were duly acknowledged by the O.Ps. too. It appears from the record that despite repeated requests neither the O.Ps. handed over the possession nor did they refund the earnest money to the complainant.
We have gone through the record carefully and heard the Ld. Counsel for the complainant.
It is evident from the record that the complainant deposited 3 no. of cheques in accordance with agreement and requested the O.P. for early handover of the peaceful possession of the flat. But with no effect.
It is further proved from the record that the O.P. Developer / the Confirming Party as per the agreement for construction dated 15/05/2009 received the Building Plan duly sanctioned by the competent authority vide BR No. 155 of 2009 – 2012 dated 20/06/2009 for raising a G + 2 storied building.
Moreover, it is also fact that in the second schedule of the executed agreement the amount of Rs.7,38,000/- was fixed as consideration amount and it is confirmed that the schedule area meant for the complainant.
It further appears from the schedule of the executed agreement that if the developer / confirming party fails to deliver the possession of the flat within a period of 6 (six) months the complainant shall have the right to cancel the agreement and in that case the developer / confirming party shall be bound to refund the entire amount received by the developer from the purchaser with an interest at 18 persent p.a.
But it is also found that the O.P. Developer neither took any step to handover the possession nor did they refund the earnest money to the complainant.
As the O.Ps. seemed to be reluctant and took no step to make arrangement for handing over the possession to the complainant or to refund the amount received by them , it amounts to gross violation of the terms of the agreement without any reasonable ground which, in our considered view, amounts to deficiency in service on the part of the O.Ps.
The O.Ps. should, in our view, refund to the complainant a sum of Rs.2,50,000/- to the complainant along with an interest at 18 persent p.a. from the date of expiration of 6 (six) months till the date of realization. The O.Ps. should also pay a sum of Rs.1,00,000/- towards compensation for his harassment and mental agony suffered for the acts of the O.Ps. The complainant is also entitled to get an amount of Rs.5,000/- towards cost of the suit.
Hence,
Ordered
that the case be and the same is allowed ex parte with cost.
The O.Ps. are hereby directed to refund a sum of Rs.2,50,000/- along with an interest at 18 persent p.a. from the date of expiration of 6 (six) months of the agreement for sale dated 18/09/2010 till the date of realization. The O.Ps. are further directed to pay Rs. 1,00,000/- to the complainant towards compensation for his harassment and mental agony suffered for the acts of the O.Ps. along with a sum of Rs.5,000/- towards cost too to be paid within a period of 30 days from the date of this order, failing which, the complainant shall be at liberty to put this order in execution.
Let the copy of the order be supplied to the parties as per rule.
As the O.Ps. remained unrepresented in the proceedings the copy meant for the O.Ps. be handed over to the complainant to cause service and to report.
