Date of filing: 31/01/2022                                                    

Date of Judgment: 28/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Mrs. Minakshi Rakshit under section 35 of the Consumer Protection Act, 2019 against the opposite party (referred as OP hereinafter) namely King construction (Urbashi Apartment) represented by proprietor Suvayan Chakraborty alleging deficiency in service on the part of the OP.

Case of the complainant in short is that she had a flat in the building constructed by OP. She asked the OP for help to sell the said flat. Complainant also tried to sell the said flat and she got the party namely Shibdas Roy and Debjani Roy. Complainant was to get total Rs. 8,00,000/- from those purchasers Shibdas and Debjani Roy. But they gave only Rs. 2,15,000/- as token money. The flat was sold out by the OP to said Shibdas Roy and Debjani Roy and the deed was also registered. But the rest of the amount of Rs. 5,85,000/- was not paid to the complainant. She asked for the said money from the OP but he threatened the complainant. Complainant has also paid the extra amount of Rs. 10,000/- towards committee dues. Since the said sum of Rs. 5,85,000/- has not been paid to the complainant, present complaint has been filed by the complainant praying for directing the OP to pay the rest of the amount of Rs. 5,85,000/-, to pay Rs. 3,00,000/- as compensation and to pay litigation cost.

On perusal of the record it appears, as OP did not turn up on service of notice, case was directed to be proceeded exparte. However it appears OP subsequently appeared and by filing a petition prayed to recall the order of exparte hearing but the same was considered and rejected vide order dt. 30.12.2022. So the case has been heard exparte. During the evidence, complainant has filed the examination in chief on affidavit and ultimately argument has been heard. A brief notes of argument has also been filed by the complainant.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

On perusal of the document filed by the complainant it appears that an agreement was entered into between OP as developer and the complainant as purchaser wherein complainant purchased a residential flat in the ground floor front side at premises no. 30 measuring area 650 sq. ft. at a total consideration price of Rs. 7,79,000/-. From the money receipt filed by the complainant, it appears that the entire consideration price of Rs. 7,79,000/- as per the said agreement was already paid to the OP developer. Consequent to the same a no objection letter dated 29/11/2019 was issued by the OP in the name of the complainant that there was no outstanding or any dues in respect of the said flat no G-3 in the ground floor of the building namely Asha Niketan – 7 of 30, Khudiram Sarani, Konnagar, Hooghly. Complainant has also filed a possession letter dated 29/11/2019 wherefrom it appears that the possession of the said flat was already handed over to the complainant on the said date and complainant acknowledged to have received the said flat by putting her signature.

It is the specific claim of the complainant that subsequently she tried to sell the said flat for which she hired the service of the developer. In this context it may be pertinent to point out that a notice was sent by the complainant through her Ld. Advocate dated 10/12/2021 to the OP and in response to the said notice OP also gave reply.

On perusal of the said reply sent by OP dated 23/12/2021 through his Ld. Advocate, it appears that the said flat has been sold by him to Shibdas Roy. According to the OP in the said reply, at his instruction said Shibdas Roy paid a sum of Rs. 4,10,000/- to the complainant. So the said reply is very categorical that the flat which was handed over to the complainant was sold by OP developer to one third party i.e. Shibdas Roy. It is true that since no deed of conveyance was executed in favour of the complainant in respect of the said flat, she could not transfer it and for which the claim of the complainant that she had hired the service of the developer cannot be ruled out. The OP developer cannot take advantage of non execution and registration of sale deed in favour of the complainant. He had taken the entire consideration price from the complainant of Rs. 7,79,000/- and at the same time sold the said flat to another buyer and took the money from the said buyer also. This is nothing but an unfair trade practice. So complainant is entitled to the rest of the amount i.e. Rs. 5,64,000/- as admittedly complainant has already received 2,15,000/- from those purchasers. Since before this commission there is no contrary material to counter the claim of the complainant that she had only received Rs. 2,15,000/-, she is entitled to aforesaid sum of Rs. 5,64,000/-. However, in the given facts and situation of this case we find no justification to pass any order of compensation. Though she is entitled to the litigation cost.

Hence

             ORDERED

CC/61/2022 is allowed exparte. Opposite party is directed to pay sum of Rs. 5,64,000/- to the complainant within 45 days from the communication of this order. OP is further directed to pay Rs.8,000/-  towards litigation cost. In default of payment the entire amount shall carry interest @ 7% p.a. till realisation.