Date of Filing: 22.09.2020
Date of Judgment: 17.11.2021
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Dr. Kiran Kumar Mukhopadhyay, under section 12 of the C.P Act, 1986 against the O.P namely M/s Dharitri Infraventure pvt. Ltd. being represented by its Director namely Vicky Singh, alleging deficiency in service and unfair trade practice on its part.
The case of the complainant, in short, is that by an agreement he agreed to purchase a Penthouse with the description Flat Floor-3, Flat Block-5, Flat no.P2, area covering 700 sq.ft in the project “Dharitri Universia” at Rajarhat and out of total consideration of Rs. 27,90,000/- he already paid an advance of Rs. 11,00,000/-. . But subsequently the project Dharitri Universia was cancelled by the O.P and the complainant was allotted vide O.P’s letter dated 8.8.2019 1.5 cattah Bungalow being no. C-62 with an area of 880 sq.ft in their project at “Royal Enclave”. As per agreement out of total consideration of Rs.32Lac for the said Bungalow, complainant has paid an advance of Rs. 16, 50,000/- . The O.P intimated to the complainant that Bungalow would be registered and the deed of conveyance would be shared with the complainant by 3rd week of January, 2020 and the construction of the property would start within 30-45 days. But the complainant through his Advocate on search and verification of those papers and documents supplied by the O.P came to know that the property had a defective title and was not free from encumbrances. So, complainant by e-mail sent to the O.P demanded refund of the advance money paid by him of Rs. 16,50,000/- . But the O.P neither responded to the e-mail nor refunded the money. A legal notice was also sent to the O.P but the O.P neither replied to the notice nor refunded the money. So, the present case has been filed by the complainant for directing the O.P to hand over the completion certificate issued by KMC in respect of the schedule property , to return The sum of Rs. 16,50,000/- paid by the complainant, to pay interest @18% p.a on the said sum, to pay compensation of Rs. 10 lac and litigation cost of Rs. 20,000/-.
Complainant has annexed with the complaint the agreement dated 15.1.2018 entered into between the parties in respect of the flat as described in schedule part 1 of the said agreement, money receipts, the agreement dated 3.6.2019 entered into between the parties in respect of the Bungalow described in the schedule and the subject matter in the present complaint. Also an e-mail sent by the complainant and the copy of the demand notice.
On perusal of the record it appears that inspite of service of notice as the O.P did not take any step , the case proceeded exparte.
So, the only point requires determination whether the complainant is entitled to the relief as prayed for.
Decision with reasons
In support of his claim that initially an agreement was entered into between the parties on 15.1.2018 in respect of sale of a flat measuring an area 700 sq.ft described in the schedule part 1 of the said agreement, a copy of the said agreement has been filed. It further appears from the documents filed by the complainant that a letter was sent on 8.8.2019 by the O.P to the complainant intimating that they would allot him a 1.5 cottah Bungalow being no.C-62 and all previous allotment letters were cancelled and subsequent to the said letter an agreement dated 3.6.2019 was executed between the parties. The copy of the said agreement has been filed, wherefrom it appears that O.P agreed to sell the property described in schedule B of the agreement at a consideration of Rs.32 Lac. The receipt with the said agreement reveals that an amount of Rs.16,50,000/- has been paid by the complainant towards the purchase of the said Bungalow out of total consideration of Rs.32 Lac. According to the complainant , on search on the basis of the papers supplied by the O.P it was found that the land was not free from encumbrances and it had a defective title. Before this Commission no contrary materials is forthcoming in this regard. Even though in the agreement dated 3.6.2019 it has been stated that the construction would be completed within December, 2020, but no material is forthcoming that any such construction has been done. It is now settled position of law that a purchaser cannot be made to wait indefinitely for the possession of flat or the bungalow allotted to him or agreed upon between the parties. In such a situation as apparently complainant paid Rs. 16,50,000/- but he has neither been delivered the possession of the Bungalow nor has been refunded the money, in the absence of any material to negate his claim, the complainant is entitled to refund of the said sum along with interest in the form of compensation. Complainant has prayed also for a direction upon the O.P to hand over the completion certificate. But since he has sought the relief of refund of money claiming that the project has not been completed, question of directing the O.P to hand over completion certificate does not arise.
Hence,
ORDERED
That CC/ 206 /2020 is allowed exparte.
The O.P is directed to refund the sum of Rs. 16,50,000/- along with interest on the said sum @9% p.a from the date of its payment till this day within 2( two) months from this date .
The O.P is further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of 2 months in default of payment of the sum, the entire sum shall carry interest @9% p.a till realization.
