Judgment dated 02-06-2016
This is a complaint made by one Shri Dipankar Banerjee son of Shri Dipak Banerjee residing at 62, Bishnu Pally under Regent Park P.S., Kolkata – 700 093 against OP No.1 M/s. Dipanwita Construction having its office at Bansdroni Kalitala Park, P.S. Regent Park OP No.2 Shri Kalyan Basu of Bansdroni Kalitala Park, P.S. Regent Park and Miss. Nandita Dey daughter of Late Santosh Kumar Dey of 7, Bishnu Pally under Regent Park P.S. praying for execution and registration of Deed of Conveyance in respect of flat mentioned in schedule “B” along with proportionate share in the land and other common facilities as described in schedule “A” and also to pay compensation and litigation cost. Alternatively to pay Rs.6,00,000/- with interest along with costs for negligence and deficiency in service to the extent of Rs.20,00,000/-
Facts in brief are that Complainant entered into an agreement for sale dated 13.2.2014 with the then owner of land through her attorney and developer. Complainant paid Rs.6,00,000/- in terms of the agreement out of the total consideration amount of Rs.7,50,000/- to the developer and OPs and always remained ready and willing to pay rest of the amount at the time of execution of Deed of Conveyance.
In terms of the development agreement dated 30.5.2012 OP No.2 developed a schedule ‘A’ property after getting sanctioned plan and executed an agreement for sale dated 13.2.2014 with the Complainant. Developer completed most of the portion of said flat but despite persuasion and request did not hand over possession of the flat to the Complainant.Complainant prepared a draft Deed of Conveyance and sent the same to the OP by registered post for its approval but OPs did not co-operate with the Complainant and neither handed over possession nor made the Deed of Conveyance in favour of the Complainant.
On 10.10.2015 Complainant sent legal notice to the OPs which also did not work. So Complainant filed this complaint.
Against above OPs No, 1 & 2 filed written version and denied all the material allegation of the complaint. Their contention is that Complainant made payment of Rs.6,00,000/- out of the total consideration money for Rs.7,50,000/- but Complainant did not follow the terms and condition mentioned in the agreement for sale. The payment was to be made as per the terms i.e. on 30.2.2014. Rs.1,00,000/-, at the time of roof casting Rs.2,00,000/-, at the time of Marble flooring Rs.2,00,000/-, on or before registration Rs.1,00,000/-. Further OP has alleged that time was the essence of the contract. Further OP has submitted that the payment was made by Complainant as Rs.50,000/- on 10.4.2014 and as per the receipts meaning thereby that Complainant made delay in payment. So OP sold the flat to one Mr. Sourav Addya by making a registration deed. After 3 to 4 days OPs called the Complainant to refund the money back but Complainant refused to take the money back. So OP prayed for dismissal of this complaint.
Decisions with reasons
Complainant filed affidavit-in-chief against which OP No.1 & 2 placed questionnaires. OP No. 1 & 2 also filed affidavit-in-chief against which Complainant put questionnaires to which OP No. 1 & 2 have replied. Both the sides have submitted written argument.
Main point for determination is whether Complainant is entitled to reliefs. In the present case OP No. 1 & 2 have admitted that flat is already sold. So this Forum cannot pass any order for handing over possession of that flat to Complainant.
The main dispute appears to be as to whether the Complainant violated the terms of the agreement. On perusal of the Xerox copies of the agreement it appears that on 13th February, 2014 the agreement was entered into as per which there is a schedule mentioned for payment by the Complainant. Further on perusal of the receipts filed by the Complainant it appears that on the date of agreement Complainant paid Rs.1,00,000/- thereafter on 10.4.2014. Complainant paid another Rs.50,000/-. Again on 26.9.2014 Complainant paid Rs.1,00,000/- and thereafter on 20.5.2015 Complainant paid Rs.3,50,000/- that means there appears delay in making payment. Whatever be the situation; it appears that the flat has already been sold by the OP. The only remedy is to allow the alternative prayer made by the Complainant which is refund of Rs.6,00,000/- .
We find that the last payment was made on 20.5.2015. However, it appears that OP sold the flat on 7.8.2015. So, in our view; it would be justiciable if interest of 12% p.a. is awarded to the Complainant from 1.6.2015 since the last payment was made by Complainant on 20.5.2015.
Hence,
O R D E R E D
CC/21/2015 and the same is allowed on contest against OP No.1 & 2 and ex-parte against OP No.3 in part. OP No.1 & 2. OP No.1 & 2 are directed to refund Rs,6,00,000/-to the Complainant with an interest of 12 % p.a. from 1.6.2015 till realization within 2 months of this order.
So far as claim of another Rs.14,00,000/- as appearing in the prayer portion is concerned, does not appear to be justiciable because no detail has been mentioned as to how and why this claim has been made.
Hence, the prayer for claim of Rs.14,00,000/- is dismissed.
