Date of Filing : 28/01/2022
Date of Judgement : 18/11/2024
Smt. Monihar Begum, Hon’ble President-in-Charge
BRIEF FACTS
The petitioner had made an agreement for sale on 29/04/2017 with the OPs in respect of one self contained flat being Flat No.7 on the 4th floor West Side facing measuring about 1110 sq.ft. more or less including service area from the Developer’s allocation situated at Mouza–Behala, Touzi No.346, Parganas–Balia, RS No.83, JL No.2, Khatian No.6772 & 6773 now 1261, CS & RS No.825, P.O. & P.S. Parnasree, Municipal Premises No.128 Maharani Indra Devi Road, Kolkata-700060, Ward No.129 on total consideration of Rs.40,50,000/- (Forty lakhs and fifty thousands) only and out of the said total consideration amount, the petitioner paid Rs.19,00,000/- (Nineteen lakhs) only and which was duly acknowledged by issuing valid receipts to that effect by the said OPs. OPs also agreed to deliver the said flat to the petitioner within 18 months from the date of the agreement.
The petitioner after the execution of the said agreement for sale, applied for bank loan for payment of the balance consideration amount to the OP No.1 for the said flat and the Bank Official asked the copy of the building sanction plan of the proposed construction and after perusing the said building sanction plan, the Bank declined to sanction any loan in favour of the petitioner on the ground that Kolkata Municipal Corporation approved only G+3 construction over the said property and the OP No.1 illegally constructed G+4 storied building over the said property and the OP No.1 offered to sell the said illegally constructed fourth floor by suppressing the fact that the K.M.C. has not approved any building sanction plan for the fourth floor. OP No.1 misrepresented the petitioner and fraudulently entered into the said agreement for sale dated 29/04/2017 with the petitioner. After knowing the said fact that petitioner informed the OPs that he is not interested to purchase the said illegally constructed flat and simply requested to refund the said part consideration amount of Rs.19,00,000/- only paid by him but the OPs assured the petitioner that they have already applied for the sanctioned plan for extended portion of the said building. the petitioner in good faith believed that and time to time reminded the OPs for production of the said sanction plan for the extended portion but all the time the OPs gave false assurance to the petitioner and atlast failed to produce the said building sanction plan. Petitioner on several occasion requested the said OPs to refund the said advance part consideration amount but every time the OPs gave false assurance and lame excuse to avoid the repayment. OPs had the intention to deceive and defraud the petitioner by withholding the said amount of Rs.19,00,000/- and the said act and conduct on the part of the OPs amounted to deficiency in service and unfair trade practice.
OPs did not contest the case and did not file any written version.
The point of consideration is whether the petitioner is entitled to get any relief(s).
FINDINGS
Petitioner produced evidence on affidavit and also documents including the development agreement dated 25/04/2013, Demand Notice dated 16/12/2021, copy of Speed Post.
It is found from the materials on record and the money receipt of Rs.19,00,000/- that the OPs received the amount from the petitioner as a consideration of the said flat. In the written argument, the petitioner stated all the facts. It was further found from the record that OPs suppressing the fact that K.M.C. has not approved the common sanction building plan for the fourth floor and OPs admitted the amount having been paid to them by him but they had failed and neglected to refund the earnest money to the petitioner. Petitioner claimed refund of the said amount from the OPs in this case.
we think considering the materials on record, petitioner is entitled to get refund of the said amount along with interest @9% p.a. from the date of agreement of sale i.e. 29/04/2017 and also entitled to get Rs.20,000/- as compensation and Rs.8,000/- for litigation cost.
It is the OPs who are liable to pay the said amount.
Accordingly it is
ORDERED
The instant complaint case is allowed exparte against the OPs.
OPs are hereby directed to pay the amount of Rs.19,00,000/- along with interest @9% p.a. from the date of agreement dated 29/04/2017 to the petitioner within 30 days from the date of this order.
OPs are also directed to pay Rs.20,000/- towards compensation and Rs.8,000/- towards litigation cost to the petitioner also within the stipulated period.
The aforesaid payment shall be made by the OPs within 30 days from the date of this order failing which petitioner shall be at liberty to proceed in accordance with law.
And also if the order is not complied by the said OPs within the above period, they are liable to pay the interest of the entire amount @12% p.a. until realisation.
Dictated and corrected by
Member
