Dt. of filing : 18/2/2019
Dt. of Judgement : 02/02/2021
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Mrs. Sunita Roy under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) M/s. Chakraborty & Co, 2) Sri Soumen Das, and 3) Sri Salil Das alleging deficiency in service on their part.
Case of the Complainant in short is that Opposite Party No.2 & 3 being the joint owners entered into a development agreement with the Opposite Party No.1 on 17/12/2015 in respect of the property described in the schedule of the said development agreement. General Power of Attorney was also executed in favour of Rudrabhanu Chakraborty the proprietor of Opposite Party No.1. Thereafter Opposite Party No.1 as a developer and as Constituted Attorney of Opposite Party No.2 & 3 agreed to sell the flat measuring 450 Sq ft in the first floor of the proposed building at premises 1006, at a total consideration of Rs.8,00,000/- and on receiving the entire consideration price Opposite Party No.1 also executed and registered the Deed of Conveyance in favour of the Complainant on 11/12/2017. But the possession of the flat has not been delivered to the Complainant by the Opposite Party No.1 inspite of the repeated request. Complainant is residing in a rented accommodation by paying monthly rent of Rs.15,000/-. The husband of the Complainant also filed another case in respect of a separate agreement for sale for another flat. So as the flat has not been handed over as per registered Deed of Conveyance by Opposite Party No.1, present complaint has been filed by the Complainant praying for directing the Opposite Parties to deliver the possession of the schedule flat by obtaining completion certificate in respect of the building, to pay interest @ 12% p.a. on the said full and final amount of consideration price of Rs.8,00,000/- since 11/12/2017 to till delivery of possession, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.
Complainant has annexed with the compliant registered Deed of Conveyance executed by the Opposite Party No.1 in favour of the Complainant on 11/12/2017.
On perusal of the record it appears that Opposite Party No.1 has contested the case by filing the written version contending inter alia that due to paucity of fund, he was unable to complete the construction work and as a result he decided to refund the consideration price but the Complainant refused. It is also contended by Opposite Party No.1 that he has refunded sum of Rs.17,53,400/- including the amount paid by the husband of the Complainant for another flat, by way of Cheques, Cash & NEFT to the husband of the Complainant and thus Opposite Party No.1has prayed for dismissal of the case.
Opposite Party No.2 & 3 did not take any step inspite of service of the notice and thus case proceeded ex-parte against them.
So the only point requires determination:
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
In support of her claim, Complainant has filed the Deed of Conveyance wherefrom it appears that Opposite Party No.1 executed the deed as Constituted Attorney of the owners (Opposite Party No.2 & 3) and as the developer, in favour of the Complainant on 11/12/2017 in respect of the flat as described in the schedule therein. It further appears from the memo of consideration in the deed that total amount of Rs.8,00,000/- towards consideration price was already paid by the Complainant to the Opposite Party No.1. Opposite Party No.1 in his written version has admitted that due to paucity of fund, he could not complete the construction work and thus he offered to refund the money but the Complainant refused. The said statement of Opposite Party No.1 developer is thus very categorical that the possession of the flat in question has not been delivered to the Complainant. However, Opposite Party No.1 has contended that he has subsequently refunded Rs.17,53,400/- to the husband of the Complainant . But in support of his contention Opposite Party No.1 has not filed any document. He has claimed that he paid the money to the husband of the Complainant towards refund by way of Cheques and NEFT. But neither any Bank Statement has been filed nor any other document to show that he returned the said sum, has been filed.
In such a situation since admittedly Complainant has not been handed over the flat, she is entitled to possession of the same. However, Complainant has also claimed that she is residing in a rented accommodation by paying monthly rent of Rs.15,000/-, but in support of her said claim, Complainant has neither filed any tenancy agreement nor filed any rent receipt to show that she is residing in a rented premises and paying monthly rent. So we find that Complainant is entitled to the possession of the subject flat and also entitled to the compensation for the delay in delivery of the possession of the flat by Opposite Party No.1. On consideration of facts and situation of this case, an amount of Rs.50,000/- will be justified as compensation and Rs.12,000/- as litigation cost.
Hence,
ORDERED
CC/100/2019 is allowed on contest against Opposite Party No.1 but dismissed ex-parte against Opposite Party No.2 & 3.
Opposite Party No.1 is directed to deliver the possession of the flat as per Deed of Conveyance dated 11/12/2017 within three months from this date.
Opposite Party No.1 is further directed to pay Rs.50,000/- as compensation and litigation cost of Rs,12,000/- within the aforesaid period of 3(three) months in default the entire sum shall carry interest @9% p.a. till realisation.
