Dated : 28 Jun 2023

 HON’BLE SUDIP NIYOGI       PRESIDENT

FACTS

            The complaint case, in a nutshell, is that the Complainant in order to find a suitable residential accommodation had entered into an agreement of lease on 19/05/2014 with the Opposite Party who is said to be the Developer, in respect of a flat at the north-west corner of the top floor of the multi-storied building to be constructed by the Opposite Party at premises No. T 5B, Kalimuddin Sarkar Lane, Kolkata- 700010 for a period of 999 years for a consideration of Rs.6,80,000/-. According to Complainant, she advanced Rs.4,50,000/- in total, by making payment on different dates. On 08/05/2014, the opposite party/developer by sending a letter to the Complainant, inter alia, informed that the latter had failed to fulfil the terms and conditions of the agreement and she was to clear all the dues within 30/01/2014 and also communicated that the said agreement would be treated as cancelled from that day i.e. on 08/05/2014. According to Complainant, though payment of the balance amount in cash was made to the Opposite Party and receipt for the same was not handed over to her even after repeated request. As no progress of construction was made by the Opposite Party (Developer), she preferred to rescind the agreement and sought refund of the money paid by her and also sent a letter to this effect to the Opposite Party (Developer) to which the Opposite Party sought 90 days’ time to start the project. So, by alleging unfair trade practice and deficiency in service, Complainant lodged this instant complaint against the Opposite Party seeking refund of Rs.4,50,000/- along with interest @ 18% p.a., compensation and litigation cost etc.

            Opposite Party filed one written version denying all the allegations of the Complainant. He even claimed that he is not engaged in any business of construction and alleged that the agreement dated 19/05/2014 is absolutely sham and also barred by u/s 230 of the Contract Act. The property where the construction to be made is a Thika property. He also claimed the money receipts filed by the Complainant as sham and the same did not create any transaction at all.

            Both parties adduced evidence and also exchanged questionnaires and replies thereto. Complainant also filed some documents in support of her claim.

            The point for consideration is whether the complainant is entitled to the relief(s) as prayed for. 

FINDINGS

            In this case Complainant prayed for an Order directing the Opposite Party (Developer) to refund the sum of Rs.4,50,000/- which the Complainant claimed to have paid to the Opposite Party (Developer) along with interest etc. From the documents that is the agreement for lease, Complainant agreed to pay for the top floor at the north-west corner, at premises No. T 5B, Kalimuddin Sarkar Lane, Kolkata- 700010, at price of Rs.6,80,000/-. The said agreement for lease was made on 23.05.2014. Opposite Party was to construct the said building at the said premises but as the Opposite Party could not construct the project even after so many years, the Complainant was compelled to rescind the agreement and sought refund of the money paid by her.

            According to Complainant, she paid Rs.4,50,000/- to the Opposite Party but she could produce the documents for Rs.1,50,000/-, Rs.90,000/- & Rs.80,000/- i.e. for Rs.3,20,000/-. Opposite Party though claimed the said money receipts are all sham, but he did not deny having received the said amount from the Complainant.

            So, ongoing through the materials available with the record we think in this case, Complainant is entitled to Rs.3,20,000/- along with interest @9% p.a. from the date of 09.03.2021, when the Opposite Party (Developer) responded by his letter to the letter of the Complainant seeking refund and also cost of litigation of Rs.3,000/- from the Opposite Party.

            In the end, Complainant has succeeded in proving her case.

            Accordingly, it is

ORDERED

That the instant case be and the same is allowed on contest.

Opposite Party is directed to pay Rs.3,20,000/- (Rupees Three Lakh Twenty Thousand Only) to the Complainant along with interest @9% p.a. from the date of 09.03.2021, until realization in full.

Opposite Party is also to pay Rs.3,000/- (Rupees Three Thousand Only) towards cost of litigation to the Complainant.

Opposite Party is directed to comply with this order by making the payment as directed above to the Complainant within 60 days from the date of this order, failing which Complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

               President