Judgment dt.14-06-2016
This is a complaint made by one Shri Gautam Nandy of C-1/14, 2No. Poddar Nagar , P.S. Jadavpur, Kolkata- 700 032 against Mr. Arup Mukherjee, 54/2, Bidhan Pally, P.S. Jadavpur, Mr. Basudev Dutta, Mr. Amar Das, Mr. Tapan Ghosh, Mrs. Sushma Chakraborty praying for an order directing the OP No.1 to 5 to execute Deed of Conveyance in favour of Complainant in respect of the flat, a direction upon the OP No.1 to refund excess amount of Rs.1,00,000/- together with bank interest, an order directing OP No.1 to pay interest @ 12% p.a. over the earnest money since the date of failure of delivery of the said flat, an order directing OP No.1 to 5 to pay compensation of Rs.2,00,000/- and litigation cost of Rs.30,000/-.
Facts in brief are that OP No.1 is developer. OP 2 to 5 are joint owners in respect of the part and parcel of land situated at 141/2, Prince Golam Hussain Shah Road, P.S. Jadavpur. Op No.1 entered into a development agreement with OP No. 2 to 5 for construction of a four storied building and as such OP No.2 to 5 handed over power of attorney to OP No.1.
OP No.1 entered into an agreement for sale on 22-01-2013 with the Complainant in respect of one second floor flat of the proposed building at a total consideration of Rs.5,20,000/-.Complainant paid Rs.6,20,000/- at the time of execution of agreement for sale that the extra amount of Rs.1,00,000/-. It was agreed between parties that the extra amount would be refunded before 20-02-2013 and the flat would the constructed within a short period from the signing of the agreement.
OP No.1 did not complete the flat and so he did not hand over it to the Complainant. Complainant on several occasion visited the office of the OP No.1 and requested him to hand over the flat but of no use. On 13-10-2-015 Complainant issued legal notices through speed post to all the OPs but that also did not yield any result.
So Complainant filed this case for the reliefs above mentioned.
On the basis of the above facts the complaint was admitted and notices were served and the date was fixed for filing written version but OPs did not take any step. So the case was heard ex-parte.
Decision with reasons
Complainant filed affidavit-in-chief in which he has reiterated the facts of the complaint.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the document filed by the Complainant it appears that there was an agreement for sale between Shri Arup Mukherjee OP No.1 and Shri Gautam Nandy where it appears that Complainant has paid Rs.6,20,000/-. Since OPs have not controverted the allegation it appears that relief No.1 where Complainant has asked for delivering possession of the flat, would be handed over after its construction. No time is mentioned. Further it appears that no terms in respect of non delivery of possession of the flat is mentioned. As such the direction that OP No.1 shall complete the flat and deliver appears to be beyond the terms of agreement for sale and hence this relief cannot be granted.
Similarly, the execution of the sale deed can only be ordered after the flat is handed over. But Complainant has not mentioned relief to the construction of the flat and what is its position at present. As such this prayer also cannot be granted.
On perusal of the agreement it appears that OP No.1 agreed to refund Rs.1,00,000/-. So this prayer appears to be fit for being granted and of course with interest.
Complainant has also sought for compensation and litigation cost but there are no material for awarding either compensation or litigation cost.
Hence,
O R D E R E D
CC/89/2016 and the same is allowed ex-parte in part.
OP No.1 is directed to refund Rs.1,00,000/- within two months of this order with 12 % interest from the date of filing of this complaint till realization. In respect of prayer no.3 & 4 no relief is granted.
