Dt. of filing- 14/06/2016
Dt. of Judgement- 10/07/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint was originally filed by Thomas Bera and Mrs. Kanak Kanika Bera ( who died during pendency of the case and her heir namely Swapan Bera, Sandhya Mistri and Sikha Devid as well as Thomas Bera have been substituted ) against the Opposite Parties namely ( 1) Krishna Das (2) Mr. Jagannath Das and (3) Joyjit Das alleging deficiency in service on their part.
Case of the complainants in short is that OP No.1 is a developer and OP Nos. 2 and 3 are the owners of the property. A development agreement was executed on 09.03.2012 between OP No.1 the developer and OP Nos. 2 and 3. Complainants intended to purchase a flat and thus there was an Agreement for Sale on 30.04.2014 executed between the complainants and the OP No.1 to sell a flat measuring more or less 600 sq.ft. on the ground floor of K.M.C. Premises No. 36, Purbachal Main Road under Police Station –Garfa, at a total consideration price of Rs. 16,00,000/-. Complainants paid Rs. 1,00,000/- and also paid Rs.6,000/-. So, in total Rs. 1,06,000/- has been paid by the complainants. As per the agreement, OP No.1 was to complete the said flat and deliver it to the complainant but OP No.1 failed to deliver it within the stipulated time. So, finding no alternative, complainants lodged a complaint before Garfa Police Station and also sent a notice through their Ld. Advocate. Ultimately present case has been filed for return of the amount of Rs. 1,06,000/- paid by the complainants, to pay compensation of Rs. 2,00,000/- and litigation cost of RS. 50,000/-.
Complainants have annexed with the complaint petition, Copy of the agreement for sale dated 30.04.2014, copy of the complaint lodged before the Garfa Police Station on 22.11.2015 and the copy of the notice dated 17.05.2016 sent to the OP through their Ld. Advocate.
OP No.1 have contested the case by filing the Written Version disputing and denying the allegations made in the complaint petition contending inter alia that the complainants themselves failed to make the payment of the consideration amount within 45 days as agreed. OP No.1 several times requested the complainants to take the possession of the flat but they did not pay any heed. It is further contended that the present case is filed for refund of the amount only and thus Civil Court can only have the jurisdiction to decide the same. So, the OP No.1 has prayed for dismissal of the case.
OP Nos. 2 and 3 did not take any step inspite of the service of the notice and thus the case proceeded exparte against them.
During the course of the evidence , affidavit-in-chief was filed by the complainants followed by filing of questionnaire by the OP No.1 and reply thereto but no evidence was adduced by the OP No.1. Ultimately, during the stage of the argument, complainants filed Brief Notes of Argument but no step was taken up by OP No.1.
So, the following points required determination :
(1) Whether there has been deficiency in service on the part of the OPs?
(2) Whether the complainants is entitled to relief as prayed for?
Decision with reasons
Both the points are taken up for a comprehensive discussion. As appears from the written version filed by OP No.1, there is no dispute that an agreement of sale, was executed by and between the parties on 30.04.2014. It is also not in dispute that an amount of Rs. 1,06,000/- has been paid by the complainants out of the total consideration price of Rs. 16,00,000/-. The only contention which has been raised by the OP No.1 is that the complainants did not pay the balance consideration amount as agreed and further since this case is for realisation of money, this Forum has no jurisdiction. So far as the point that this Forum has no jurisdiction, it has already been disposed of vide order dated 26.08.2016 whereby petition filed by the OP challenging the maintainability was rejected holding thereby that the Forum has jurisdiction.
With regard to non-payment of balance amount of consideration money, on perusal of the copy of the agreement dated 30.04.2014 it appears that it was categorically stated in the agreement that the purchasers have agreed to make complete payment of remaining balance amount within a period of 45 days subject to completion of the said flat. It is the specific case of the complainants that the OPs failed to complete the flat within the stipulated time. Before this Forum, no document is filed by OP No.1 in order to substantiate his claim that the flat was ready to be handed over. On the contrary, the complaint has been lodged by the complainants before the police stating that the OPs for some unknown reason failed to complete the said flat. The said complaint was lodged by the complainant Mr.Thomas Bera on 22.11.2015 before the Garfa P. S. So, in the absence of any document from the side of the OP No.1, his claim that the flat was completed but due to the acts of the complainants themselves for non-payment of the balance amount, the possession was not handed over, cannot be accepted. In this case also, OP No.1 has not filed his evidence. So in such a situation, as admittedly said amount of Rs. 1,06,000/- paid by the complainants has not been returned, complainants are entitled to the said amount from the OP No.1 along with interest in the form of compensation.
Hence,
Ordered
CC/251/2016 is allowed on contest against the OP No.1 and exparte against the OP Nos. 2 and 3. OP No.1 is directed to refund Rs. 1,06,000/- along with interest @ 10% p.a. from the date of payment till this date within two months from the date of this order failing which the amount shall carry interest @10% p.a. till realisation. OP No.1 is further directed to pay Rs. 10,000/- as litigation cost within the aforesaid period of two months.
