Dt. of filing- 14/01/2019

Dt. of Judgement- 28/01/2020

Mrs. Sashi Kala Basu, Hon’ble President.

          This complaint is  filed by the complainant namely Sri Sumanta Dhar under Section  12   read with Section 13 of the Consumer Protection Act against the Opposite Party  namely (1)M/s. Chakraborty & Co.  being  represented   by its Sole Proprietor Shri Rudra Bhanu Chakraborty (2) Shri Arun Kumar Pramanik.

          The case of the complainant in short is that  OP No.2  being the Landlord of the Premises being no. 148A/1,   Ho Chi Minh Sarani, P. S. – Behala, entered into a development agreement with the OP No.1.  Said development agreement  was  registered on 03.12.2015. Power of Attorney was also executed  and registered on 15.12.2015 by OP No.2 in favour of the developer   OP No.1.  Subsequently,  complainant entered into an Agreement  for Sale   dated 27.11.2017 in respect of  a self-contained  residential flat  on the 1^st floor of the premises at a total consideration price of Rs. 5,00,000/-. Complainant has paid   Rs.2,40,000/- out of the consideration price by way of cash  and cheques. It was agreed  that the flat  would be  handed over within  10.08.2018 but the same  has not been  handed over  to the complainant. Neither  deed has been executed. So,  the present complaint has been  filed by the complainant praying to direct the  OP No.1 for  delivery of  possession and execution  of  deed of conveyance in respect of the  flat  upon the receiving  balance consideration  or  in alternatively to refund the amount  already paid by the complainant along with interest, to handover the completion Certificate  and   to  direct the OP No.1 to pay  compensation of Rs. 2,00,000/-.

          Complainant  has annexed with the complaint, copy of the agreement for sale  dated 27.11.2017 and copy of the bank statement showing payment   by the complainant.

Case has been contested by OP  No.1  by filing  written version   contending  inter alia  that  the construction work  was stopped  as the foundation  work  was totally submerged  and there was  delay in progress of  the construction work. It is further contended  by OP No.1  that the construction work has already been resumed  and the OP No.1 will deliver the possession of the  schedule flat  on receiving the  balance  consideration  price. So, OP has prayed for  dismissal of the case.

          On perusal  of the record it appears that the OP No.2  did not   take any step   inspite of  the service  of the notice and thus vide order dated  09.04.2018  case was  directed  to be proceeded ex-parte  against   OP No.2.

          During the course of the trial , complainant  filed  affidavit in chief  but it appears  that the OP No.1  did not take  any step after  filing  of the Written Version and thus  ultimately, the  case  was fixed  for argument. Complainant  has filed  the Brief Notes of Argument.

          So,  the only point  requires determination is –

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

Decision with reasons

                    Complainant has claimed  that he agreed to purchase a flat  as per agreement dated  27.11.2017   entered into  between  him and the OP No.1. In support of his  said claim, he  has filed  the said agreement for sale dated 27.11.2017 wherefrom  it appears that the OP No.1  being the developer agreed to sell  the flat  described in the Schedule – B  of the agreement   at a consideration  of Rs. 5,00,000/-. It  further appears from the  recital  of the agreement  that the  complainant  had already made the part payment of the consideration price. Out of the total consideration price complainant has paid  Rs.2,40,000/-  claimed by him. Said amount  paid by the complainant has not been  disputed and denied  by the  OP No.1 the developer. Neither  he has denied  about development agreement between him and the OP No.2  and subsequently entering into  an agreement with the complainant on 27.11.2017. Only plea taken by the  OP No.1  is that  the construction work was stopped  as  the foundation  work  was submerged  due to water seepage. However,  he has  claimed   that  the construction work   has been  resumed  and so flat will be handed over on payment of  balance consideration  by the complainant. So as neither  the execution of the agreement in favour of the complainant nor the  payment  as claimed by the  complainant, has been  denied by the OP No. 1,  complainant  is entitled  to the relief  of delivery of possession and execution of the  deed in respect of the flat as per agreement, on payment of balance  consideration price of Rs.2,60,000/- by the complainant to the OP No.1 or  in alternatively, he  is entitled to  the refund of the amount paid by him to OP No.1. Complainant is also  entitled  to the compensation  for  the  delay  in delivery of possession   and if the deed  is executed, he will have to bear the cost towards the  registration   as per present  market value. Likewise if the amount is  refunded  then  he would be  losing  interest   on the said amount.

Hence,

                     Ordered

          CC/15/2019 is allowed  on contest  against  OP No.1 and allowed exparte  against the OP No.2. Opposite Parties are directed to deliver the possession  of the flat  and to execute  the deed of conveyance in respect of the  flat  in favour of the complainant  as per  agreement  dated 27.11.2017  within three months from this date, on payment  of balance consideration  price   of RS. 2,60,000/- by the complainant to OP No.1 or in alternatively OP No.1 is directed  to refund the amount paid by the  complainant of Rs. 2,40,000/- to the complainant within the aforesaid  period of three months. He is further  directed to pay  compensation  of Rs. 50,000/- and litigation cost of Rs. 10,000/- within the aforesaid period of  three months in default  the entire sum shall carry interest @ 9% p. A. till  realisation.