Dated : 12 Sep 2022

FACTS

This complaint has been made by the petitioners against the OPs alleging unfair trade practice and deficiency in service. According to Petitioners, they had entered into an agreement with OP No.1 for purchasing one flat measuring about 440 sq. ft. (super built up area) comprising 2(two) rooms, 1(one) kitchen, 1(one) Bath-cum- Privy and 1(one) balcony, on the 3^rd floor at premises No.7 Gostha Behari Sarani (Pan Bagan Lane) situated in Ward No.54 of the Kolkata Municipal Corporation, Kolkata - 700014 at a consideration of Rs.22,00,000/-. Petitioners paid an advance of Rs.20,00,000/- to OP No.1 towards consideration. The said agreement for sale was dated 09.02.2019 and the flat was scheduled to be handed over within 12 months from the said date. However, subsequently, on mutual consent by the said agreement for sale was cancelled/revoked on 13.12.2020 and OP No.1 assured the petitioners to refund the entire amount paid an advanced along with  interest @ 10% p.a. OP No.1 also refunded on the same day, Rs.4,75,000/- and the balance amount was to be refunded within 120 days by him.

But, subsequently, OP No.1 did not refund the said balance amount along with the interest within the said stipulated time despite repeated request and demand by the petitioners. Now, petitioners have prayed for refund of the balance amount of Rs.15,25,000/- along with 10% interest  compensation and also cost of litigation.

OP No.1 has not contested this case by filing a written statement and adducing evidence though notice of the complaint was duly served upon him. OP No.2 & 3, who claimed to be the land-owners, filed W/V together stating that the agreement and transactions between the petitioners and OP No.1 were not in their knowledge. They were not duly informed about the subsequent  development made between them.

POINTS FOR CONSIDERATION

1. Whether the petitioners are entitled to the relief (s) as prayed for in this case?

                                              FINDINGS

The petitioners have filed evidence and also the documents, no evidence is forthcoming from OP No.1 as the instant case against him has been heard ex parte. However, OP No.2 & 3 have filed their evidence.

We have carefully gone through the materials on record including the documents, it is found that initially there was an agreement dated 09.02.2019 by which the petitioners had approached to buy a flat on the premises No.7 Gostha Behari Sarani (Pan Bagan Lane) situated in Ward No.54 of the Kolkata Municipal Corporation, Kolkata – 700014. The said flat would be constructed by OP No.1, who is said to be Constituent Attorney of the land-owner i.e. OP No.2 & 3. OP No.1 carries on his business under M.G.N Construction. It is further found that petitioners paid Rs.20,00,000/- out of total consideration of Rs.22,00,000/-. However, subsequently, on 13.12.2020, the said agreement for sale dated 09.02.2019 was cancelled/revoked as admitted by the petitioners themselves. It is further admitted by them that an amount of Rs.4,75,000/- was refunded to the petitioners by OP No.1 on the date of cancellation or revocation of the agreement for sale. OP No.2 & 3 have categorically stated that they were kept in complete dark as to the transaction or agreement between the petitioners and OP No.1 and they also have not received any money from the petitioners. During hearing, the petitioners also have not claimed that they advanced money towards consideration or any part thereof to OP No.2 & 3 rather it is OP No.1 who was given the said amount of Rs.20,00,000/- towards consideration.

The documents produced by the petitioners reveal that by a letter dated 06.07.2021 OP No.1 Md. Gulzar on his official pad under MGN Construction claimedto have already refunded Rs.4,75,000/- and he assured to refund the balance amount within 120 days from the date of receipt of that letter. As already stated, the petitioners have admitted to have accepted the refund of Rs.4,75,000/-. So, the balance amount of Rs.15,25,000/- still remains to be paid. Therefore, it is OP No.1, who is liable to pay the said balance amount of Rs.15,25,000/- along with interest to the petitioners.

So, the petitioners are entitled to relief (s) in this case.

Accordingly, the instant case succeeds.

Hence it is,

ORDERED

The instant complainant be and the same is allowed ex parte against OP No.1 and dismissed on contest against OP No.2 & 3.

The complainants are entitled to Rs.15,25,000/- (Rupees Fifteen Lakh Twenty Five Thousand only) along with interest @10%p.a. from OP No.1.

OP No.1 is directed to make the aforesaid payment within a period of 45 days from the date of payment of this Order failing which the complainants shall be at liberty to realize the same in accordance with law.

Dictated and corrected by me.