Hon’ble Mr. Ajeya Matilal, Presiding Member
Both parties are present through their Ld. Advocates. The matter is taken up for hearing. Heard the Ld. Advocates and Ms. Archana Choudhury on behalf of the complainant and Mr. Avik Kr. Das and Jayeeta Sengupta on behalf of the OPs.
Considered.
This is a case filed u/s 17 of the C.P. Act 1986 valued at Rs. 30,00,000/- with a prayer for getting possession of the flat in question alternatively, with a prayer for refund of Rs. 9,50,000/- already paid by the complainant along with interest.
The fact of the case is in short like that the complainant booked a 3 bed room flat situated at 15th floor of Tower no. 2 with one covered car parking space in Kolkata West International City Pvt. Ltd. at Salap junction, Howrah Amta Road. Following the application by the complainant, an agreement for sale was executed for total consideration money of Rs. 27,90,799/-. The copy of agreement dt. 28.04.2012 is annexed as annexure R.
In this context the complainant paid Rs. 9,50,000/- through different cheques on different dates. The OP/developer issued an allotment letter (annexure A). But no construction was done by the OP/developer. It was agreed upon between the parties that the developer shall complete the construction by 31.12.2014. But the OP/developer did not complete the construction within the stipulated period. So, the complainant served notice upon the OP on 11.11.2010 marked in annexure G. Subsequently, the complainant served legal notice upon the OP on 26.05.2017 marked in annexure U. But in spite of receiving the same, the OP did not deliver possession. So the complainant has filed this case.
The OP contested the case filing W.V denying the material allegations of the complainant along with the technical pleas. However, it is admitted by the OP that the amount mentioned of the complaint has been received by them.
The specific case of the OP is that the husband of the OP was the sales organiser of the OP. So, he was aware of the development of the project. The OP refunded money to most of the applicants or provided them with alternative accommodation in different projects. The complainant knowing this fact did not apply for refund or alternative accommodation. The OP did not get sanction from the concerned authority and he was liable to pay compensation only at the existing rate of savings bank interest as provided by the SBI and they are ready to provide with alternative accommodation to the complainant in the same complex. So, they prayed for dismissal of the complaint.
Complainant adduced evidence by way of affidavit he was cross- examined. The OP also adduced evidence and he was also cross-examined.
The points for consideration
- Whether the complainant is a consumer?
- Whether there was deficiency in service on behalf of OP?
- Whether the complainant has any cause of action to file the case?
- Whether the complainant is entitled to relief as prayed for?
Decisions with reasons
All the points are taken together for the sake of convenience. We have already discussed about the agreement for sale which was marked as annexure R. It is an admitted position that the OP received the amount from the complainant through different cheques. It appears that within the stipulated period the OP failed to deliver the possession of the said flat as the flat was not constructed due to some reasons. Our attention was drawn to the legal notice and the other communications made by the complainant to the OP as referred above.
So, it appears from the aforesaid discussion that the complainant is a consumer, there is deficiency on the part of the OP and there is also cause of action. So, the complainant is entitled to relief as prayed for.
All the points are decided accordingly in favour of the complainant. So, the case succeeds.
Hence it is ordered
The complainant case being no. 238/2018 is allowed on contest against the OP with litigation cost of Rs. 10,000/-. The Opposite Party is directed to refund Rs. 9,50,000/- with an interest @ 9.5% p.a. from the date of payments till the realisation of the entire amount within 60 days from the date of this order, failing which, the complainant will be at liberty to put the award into execution.
