Hon’ble Mr. Ajeya Matilal, Presiding Member
Today is fixed for final hearing ex parte.
The Ld. Advocate for the complainant is present.
Heard the Ld. Advocate.
This is a complaint u/s 17 of the C.P. Act, 1986.
The fact of the case is in short like that the complainant was approached by the representative of the OP regarding the prospect of his project. The complainant booked the scheduled flat mentioned in the agreement for sale with the OP. The OP was the owner of the flat as well as the developer. In this context the complainant applied in a prescribed application dt. 01.03.2016. The OP is a company registered under Company’s Act 1956 having it registered office at 1/1B Upper Wood Street, Kolkata- 700017, under P.S. Shakespeare Sarani.
Prior to that the OP deputed several representatives and also invited application from the desirous buyers for submission of the applications. Following the same the complainant booked the aforesaid flat. As per agreement for sale dt. 9th July 2016 the total consideration for the flat was Rs. 54,13,250/- only and the price of the covered car parking space was 2,50,000/-. The aforesaid land for the purpose of the construction of the said flat was situated at R.S. /L.R plot no. 161, 166, 167, 202, 203, 205,206, 207, , within Mouza Bajetaraf, J.L. No. 50, P.S.- Rajarhat under Chandpur Panchayat District Sub-Registry Office at A.D.S.R. Bidhannagar(Salt Lake) District- 24 Parganas (North), West Bengal.
The complainant paid Rs. 18,92,133/- out of the total consideration money of Rs. 54,13,250/-. It was agreed upon that within 24 months from the date of agreement the OP will deliver the possession of the flat upon payment of full consideration amount. The complainant detected that there was no progress of construction work. Subsequently, he came to know that the project could not be completed as high tension electric line was over the land. The matter was informed by the OP to the complainant unofficially consequently the project was not started by the OP. So, the complainant served a notice though his advocate on 04.09.2018 by speed post which was received by the OP as per track report of the postal department. According to the complainant, the OP fraudulently suppressing the fact collected money from the complainant. So, the complainant filed the case for recovery of Rs. 28,15,659/- including the interest @ 18% p.a. on the sum advanced along with compensation and litigation cost calculated up to 30th September, 2018.
But it appears in para 10 that the complainant prayed for refund of amount of Rs. 18,92,133/- with an interest @ 18% p.a., compensation of Rs. 1 lakh for mental agony and harassment, Rs. 35,000/- for litigation cost etc.
The OP initially contested the case by filing W.V denying the material allegations of the claimed petition along with technical pleas. The complainant adopted the petition of complaint as his evidence.
The agreement for sale runs from page 12 of the petition of complaint. It appears from the agreement for sale that the OP shall handover the position of the schedule flat to the complainant within 24 months from the effective date. It appears from the memo of agreement for sale that the complainant paid Rs. 11,02,672/-. Subsequently, the complainant paid Rs. 1,03,625/- on 01.03.2016. The OP also received Rs. 1,26,615/- on 03.11.2016 through bank transaction, Rs. 26067.56/- on 16.07.2016, Rs. 3,24,898/- on 19.03,2016, Rs. 7,19,118/- on 30.05.2016 through bank transaction, Rs. 5,91,810/- on 28.10.2016. So, the total amount of payment made by the complainant was Rs. 18,92,133.56/-.
The notice sent by the complainant through speed post dt. 04.09.2018 was received by the OP asking him to refund the amount along with the interest @ 18 % p.a. But in spite of receiving the same the OP did not take any steps.
It appears from this discussion that there was an agreement for sale between the parties and following the same the complainant paid Rs. 18,92,133.56/- in total but the OP did not deliver the possession of the same as the project was abandoned. It was within the knowledge of the OP that the project cannot be completed. Although the OP cross examined the complainant by putting questionnaire and the complainant filed reply against such questionnaire but the evidence adduced by the complainant by way of affidavit was not shaken by such cross examination.
So, the complainant is a consumer. There is deficiency in service on the part of the OP and there is also unfair trade practice on his part. So, the complainant is entitled to relief. So, the case succeeds.
Hence it is ordered
The CC/726/2018 allowed ex parte against the OP with a litigation cost of Rs. 50,000/-. The OP is directed to refund Rs. 18,92,133.56/- along with an interest @ 12% p.a. from the date of payment till the realisation of the entire amount within 60 days from the date of this order, along with compensation of Rs. 1,00,000/- failing which, the complainant will be at liberty to put the award into execution.
