For the Complainant - Ashfaque Anwar Sanwarwala, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the case are that the complainant and her mother Nazma Begum, since deceased had entered into an agreement dated 10.10.2014 with OP-2 being the sole proprietor of OP-1 M.N. Group for acquiring a flat measuring about 350 sq. ft. on the second floor of Premises No. 4/2B, Convent Lane, Kolkata-700015 on tenancy basis at a total consideration of Rs. 5,60,000/-. In terms of the agreement, complainant paid Rs. 4,00,000/- to the OP-2. Complainant is the sole legal heir of Nazma Begum. The OPs were liable to deliver possession of the flat within three years from the date of execution of the agreement dated 10.10.2014. Complainant vide letter dated 06.12.2017 requested the OPs either to deliver the subject flat or refund the entire consideration amount. Upon receipt of said letter, the OP-2 being the sole proprietor of OP-1 assured to refund booking amount within 3 or 4 months but OP-2 failed to fulfill their commitment. Finding no other alternative, complainant issued legal notice dated 18.07.2018 to the OPs. Such notice was unattended. Being aggrieved of the failure of the OPs to perform their part of contract, the complainant has filed the instant consumer case seeking refund of Rs. 4,00,000/- including compensation and litigation cost.
OPs despite service of notice of the complaint have failed to file WV within the limitation provided under section 13 (2) of the Consumer Protection Act, 1986. No request for condonation of delay or extension of time for filing WV is made. Therefore, right of the OPs to file WV was closed vide proceedings dated 08.01.2020.
Complainant Shabnam Rawa has filed her evidence by way of affidavit supporting the allegations made in the complaint. Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint.
On perusal of the Agreement dated 10.10.2014 it is clear that vide said agreement the OPs agreed to handover a flat measuring about 350 sq. ft. more or less consisting of one kitchen two bed rooms, one dining cum kitchen and one bath room on the 2nd floor (East Middle Side) of Premises No. 4/2B, Convent Lane, P.S.- Entally, Kolkata-700015 on tenancy basis at a total consideration of Rs. 5,60,000/- to the complainant and her mother Nazma Begum, since deceased. From the above document, it is also clear that the complainant and her mother paid Rs. 4,00,000/- as booking money out of total consideration amount of Rs. 5,60,000/- to the OP-2. It is also clear from clause-6 of the said agreement that the OPs had agreed to deliver possession of the flat within 03 (three) years from the date of execution of the agreement dated 10.10.2014. Complainant has categorically alleged in the complaint that in spite of paying Rs. 4,00,000/- to the OPs they did not deliver possession of the subject flat on receiving balance consideration amount. As the OPs have opted not to file WV despite service of notice of complaint published in the daily newspaper, the allegations of the complainant is deemed to have been admitted as correct.
In order to prove said allegations, complainant has filed her affidavit reaffirming the allegations. Thus, it stands proved that despite of having received Rs. 4,00,000/-, the OPs have failed to deliver possession of the subject flat to the complainant on receiving balance consideration amount. In absence of any explanation for failure to comply with the stipulation of delivery of possession, we have no hesitation in concluding that the OPs have committed deficiency in service as also have indulged in unfair trade practice.
Based on the discussion above, the complaint is allowed, ex parte with following directions:-
- The OPs are directed to refund to Rs. 4,00,000/- (Rupees four lacs) only to the complainant within 45 days from today along with compensation of Rs. 25,000/- (Rupees twenty five thousand) only.
- The OPs are also directed to pay a sum of Rs. 5,000/- (Rupees five thousand) only as litigation cost to the complainant.
Liberty be given to the complainant to put the order in execution, if the OPs transgress the order.
Order be communicated to the complainant as per rules.
