FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant, in brief, is that, the Complainant entered into a Booking Agreement with the OP1 on 30/11/2018 for purchasing a flat measuring an area of 500 sq.ft more or less on the front side of the 3rd Floor lying and situated at the premises No. 13/H/28, Mayur Bhanj Road, P.S. – Ekbalpore, Kolkata – 700023 within the limits of KMC, under ward No. 78 in the District of South 24 Pgs by paying a sum of Rs.4,00,000/- to the OPs and the OPs assured that the aforesaid flat will deliver to the Complainant within 3 months from the date of execution of the said Booking Agreement. On 02/05/2021 the Complainant approached to the OPs with an enquiry as to when the said flat will deliver to him but did not receive any proper reply from the OPs. On 15/05/2021 the Complainant came to know that OPs have done the construction work over the premises No. 30/1B, Mominpore Road, P.S. – Ekbalpore, Kolkata – 700023 and premises No. 13/H/28, Mayur Bhanj Road, P.S. – Ekbalpore, Kolkata – 700023without obtaining any Building Sanction Plan from the concerned authority. Thereafter on 10/06/2021 the Complainant asked the OPs to refund his money to which the OPs refused to return the same. Again on 01/08/2021 and 05/08/2021 the Complainant contacted the OPs and requested them to refund the deposited amount. But the OPs flatly refused. Thereafter the Complainant submitted a Written Complaint before the officer-in-Charge, Ekbalpore Police Station, Kolkata against the OPs. But till date no action has been taken from their part. On 31/08/2021 a Legal Notice has sent by the Complainant to the OPs. The same is remain unanswered. On 02/09/2021 the Complainant again contacted the Ops and made same requestlike earlier. But the OPs are adamant. Finding no other alternative the Complainant placed his case before this Commission.
Upon service of notice OPs did not appear to contest the case and no WV is filed on behalf of them within stipulated period. Thus the case has proceeded ex parte against them.
We have carefully examined the entire materials on record including the E/Chief of the complainant and documents. We have also given a thoughtful consideration to the argument advanced by the Ld. Advocate for the complainant.
On bare perusal of the photocopy of the Booking Agreement dated 13/11/2018 we find that the Complainant and OP1 had entered into a Booking Agreement fora flat measuring about 500 sq.ft on the front side of the 3rd Floor lying at of premises No. 13/H/28, MayurBhanj Road, P.S. – Ekbalpore, Kolkata – 700023. The Ld. Advocate for the Complainant argued that a sum of Rs.4,00,000/- is paid by the Complainant at the time of booking. But we did not find any Payment/Money Receipts in support of the submission. We also did not find any Agreement between the Complainant and OP2 regarding the said flat. Therefore, the Complainant is not entitled to get any relief against OP2.
It is true that in terms of the Booking Agreement OP1 is bound to handover a flat measuring 500 sq.ft. to the Complainant at the abovementioned premises. In spite of Booking Agreement OP1failed to handover the possession of the flat in questionDue to non-delivery of the possession of the said flatOP1 demonstrated a gesture of deficiency in service and indulged in unfair trade practice.
Complainant corroborates his case by adducing evidence on affidavit as well as by producing documents. Despite given several opportunity, the OPs did not file their WV to deny the allegations made by the complainant. Thus, the evidence of the Complainant remains unchallenged and uncontroverted.In absence of any contrary and controverting materials on record and having regard to the documents on record we can safely state that that on failure to file WV by the OP1 tantamount to admission of the allegations stated in the Complaint Petition.As such, the complainant is entitled to get relief in part against the OP1and OP2 has no liabilities towards the Complainant.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed ex-parte in part against OP1 with litigation cost of Rs.5,000/- and dismissed ex-parte against OP2 without any cost.
OP1 is directed to handover the flat in question measuring 500 sq.ftto the Complainant within 45 days from the date of this order together with litigation cost.
OP1 is further directed to pay Rs.10,000/- to the complainant for causing harassment, mental pain and agony within the stipulated period.
Liberty be given to the complainant to put the order in execution,if the OP-1 transgresses to comply the order.
