Judgment : Dt.20.2.2017
This is a complaint made by Bhaskar Jyoti Kakati, residing at 22A/6, Telipara Lane, Dhakuria, P.O.-Haltu, P.S.-Lake, Kolkata-700 031 against (1) Ila Mitra, residing at 334 Sreepally, P.O.-Purba Putiary, P.S.- Regent Park, Kolkata-700 093, OP No.1, (2) Tushar Kanti Sinha, residing at 32A, Sreepally, P.O.-Purba Putiary, P.S.- Regent Park, Kolkata-700 093, OP No.2, (3) Dipankar Saha, residing at 335, Sreepally, P.O.- Purba Putiary, P.S.- Regent Park, Kolkata-700 093, OP No.3, (4) T.D.I. Enterprise a partnership firm represented by its partners abovenamed carrying on its business at 334, Sreepally, P.O.-Purba Putiary, P.S.- Regent Park, Kolkata-700 093, OP No.4, (5) Haradhan Saha, residing at 300 Sreepally, P.O.- Purba Putiary, P.S.- Regent Park, Kolkata-700 093, OP No.5, (6) Narayan Saha, residing at 300 Sreepally, PO- Purba Putiary, P.S.-Regent Park, Kolkata-700 093, OP No.6, (7) Khokon Saha, residing at 36, Saha Para, P.O.- Purba Putiary, P.S.-Regent Park, Kolkata-700 093, OP No.7 and (8) M/s N.H.K. Construction a partnership firm represented by its partners abovenamed carrying on its business at 300 Sreepally, P.O.-Purba Putiary, P.S.-Regent Park, Kolkata-700 093, praying for an order directing the OP to refund the due amount of Rs.3,10,000/- with interest and another direction to pay compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
Facts in brief are that Complainant and the OP No.1 to 3 are partners of a partnership firm which is the OP No.4 in the name and style M/s T.D.I. Enterprise at 334, Sreepally under Regent Park P.S., Kolkata-700 093.
The OP No.1 to 4 purchased a property from its erstwhile owners by a registered deed of gift. Further, Complainant has stated that OP No.1 to 4 with an intention to construct a multi storied building entered into a development agreement with OP No.5 to 7, who are proforma OPs.
The Complainant, further, has stated that in the early months of 2014, being attracted to an advertisement for constructing of an apartment, the Complainant responded as he was in need of an accommodation and thus entered into an agreement for sale on 29.6.2014 whereby it was agreed that a flat measuring 670 sq.ft. on the 2nd floor would be sold for a consideration of Rs.19,00,000/-. As per agreement for sale the Complainant paid Rs.3,80,000/-. The Complainant applied for housing loan from the L.I.C. Housing Finance Ltd. but the L. I.C. Housing Finance Ltd. rejected the application of the Complainant as there was huge deviation in construction of the scheduled property. Thereafter, on 26.9.2014, Complainant issued a letter to OP No.1 to 3 and cancelled the agreement for sale. Thereafter, Complainant on several occasions requested OPs to refund the money. But, only Rs.70,000/- was refunded. So, Complainant filed this case.
On the basis of above facts, the complaint was admitted and notices were served upon the OPs. But they did not appear. So, the case was heard ex-parte.
Complainant filed evidence of service to establish that notices were served.
Decision with reasons:
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the agreement for sale, it appears that on 29.6.2014 an agreement was made between the Complainant and the OPs. Further, it appers that Complainant paid Rs.3,80,000/- which has been acknowledged at the last page of this agreement for sale.
Now, it is the contention of the Complainant that since he could not get housing loan from LIC, he cancelled the agreement for sale. So, the question as to whether Complainant is entitled to refund of the money which he paid. He has already received Rs.80,000/-.
In our view it is a common prudence that when an agreement for sale is cancelled by the purchaser due to his incapacity of paying the consideration money an amount is deducted.
In the present case, since the OPs have not contested, we may hold the view that if refund of Rs.2,50,000/- is allowed object of justice would be served.
So far as prayer for compensation and litigation cost are concerned, these cannot be allowed because Complainant himself cancelled the agreement for sale.
Hence,
ordered
Cc/457/2016 and the same is allowed ex-parte in part. OPs are directed to pay Rs.2,50,000/- to the Complainant within four months of this order, in default the amount shall carry interest @ 10% p.a. The liability of OPs are joint and several.
