Dt. of filing – 17/12/2018

Dt. of Judgement – 11/02/2020

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Mamtaz Mullick under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Millennium India Construction 2) Sri Debasish Sarkar 3) Sri Samir Kumar Halder 4) Sri Ashish Roy Chowdhury 5) Sri Debasis Roy Chowdhury 6) Sri Subhasish Roy Chowdhury and 7) Smt. Rumki Das  alleging deficiency in service on their part.

          Case of the Complainant in short is that Opposite Party No.1 is a Partnership Firm and Opposite Party No.2 & 3 are its partners. Opposite Party No.4 to 7 are the land owners of land described in the Schedule ‘A’ of the complaint. Opposite Party No.4 to 7 entered into a development agreement dated 18/8/2006 with the Opposite Party No.1 being represented by its partners Opposite Party No.2 & 3 to construct the building in the landed property described in the Schedule ‘A’ of the complaint after obtaining the sanction plan subsequently Complainant entered into an agreement to purchase a flat with the Opposite Party No.2 & 3 by an agreement for sale dated 12/9/2012 in respect of the flat as described in the Schedule ‘B’ of the complaint at a consideration price of Rs.7,00,000/-. Complainant has paid Rs.5,10,000/- in two parts. She has paid Rs.5,00,000/- by way of cheque and Rs.10,000/- in cash. As per terms of the agreement Opposite Parties were to handover the possession of the flat within six months from the date of the signing of the agreement. But inspite of lapse of six years the possession has not been handed over to the Complainant, neither she has been refunded the amount. Opposite Party No.2 & 3 only refunded the amount of Rs.1,00,000/- out of Rs.5,10,000/- paid by the Complainant. So as neither possession of the flat has been delivered nor the amount of Rs.4,10,000/- has been refunded, Present Complaint has been filed by the Complainant praying for directing the Opposite Parties to deliver the possession of the flat and to execute the Deed of Conveyance or in alternatively to refund Rs.4,10,000/- paid by the Complainant along with interest @ 18% p.a., to pay compensation of Rs.4,00,000/- and litigation cost of Rs.50,000/-.

          Complainant has annexed with the complaint, copy of agreement for sale dated 12/9/2012 entered between Opposite Party No.1 being represented by its partners and the Complainant, receipt showing payment of Rs.5,00,000/- and Rs.10,000/- by the Complainant and the receipt showing payment of Rs.1,00,000/- by the Opposite Party No.1 towards refund.

          On perusal of record it appears that inspite of service of notice, Opposite Parties did not take any step and neither filed any written version, thus the case was fixed for ex-parte hearing vide order dated 2/7/2019.

          During the course of the trial Complainant has filed her affidavit-in-chief and ultimately also filed Brief Notes of Argument.

          So only point requires determination is:

          Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          In order to support her claim that she agreed to purchase a flat as described in the Schedule ‘B’ of the complaint, Complainant has filed the agreement for sale dated 12/9/2012 and the receipts showing payment of Rs.5,10,000/-.

          On perusal of the agreement it appears that the Opposite Party No. 1 agreed to handover possession of the flat within six months from the date of signing of the agreement but agreement discloses that the Opposite Party No.1 being represented by Opposite Party No. 2 & 3, did not execute the agreement, as the Constituted Attorney of the Opposite Party No.4 to 7. Admittedly no Power of Attorney was executed by Opposite Party No.4 to 7. However, a development agreement dated 18/8/2006 was entered into between Opposite Party No.4 to 7 with the Opposite Party No.1. Copy of the said development agreement has not been filed by the Complainant in this case. So it is not cleared what was the share of Opposite Party No.1 towards developer’s allocation and of owner’s allocation. In the agreement for sale between Complainant and Opposite Party No.1 dated 12/9/2012 also, there is no reflection about the developer’s allocation as per development agreement. However, as there was an agreement executed by Opposite Party No.1 through Opposite Party No.2 & 3, to sale the flat in favour of the Complainant by an agreement dated 12/9/2012 and the flat has not been handed over inspite of  Complainant has paid an amount of Rs.5,10,000/-, alternatively prayer of the complainant to refund the amount is liable to be allowed especially when the complainant has already accepted an amount of Rs.1,00,000/- towards refund. She is also entitled to the interest on the said amount in the form of compensation. Admittedly out of Rs.5,10,000/- paid by the Complainant, Opposite Party No.1 has already returned Rs.1,00,000/-. So, Complainant is entitled to the remaining amount of Rs.4,10,000/- along with interest @12% p.a. on the said sum from the date of payment by the Complainant. Since we have allowed interest, there is no justification for passing any order as to compensation as prayed by the Complainant.

Hence,

                     ORDERED

CC/672/2018 is allowed ex-parte against Opposite Party No.1 to 3 and dismissed against Opposite Party No.4 to 7. Opposite Party No.1 to 3 are directed to refund Rs.4,10,000/- to the Complainant along with interest on the said sum @12% from the date of payment i.e. 12/9/2012 to till this date, within 2(Two) months from the date of this order failing which entire sum shall carry interest @12% p.a. till realisation. Opposite Party No.1 to 3 are further directed to pay litigation cost of Rs.10,000/- to the Complainant  within the aforesaid period of 2(Two) months.