Date of filing: 02/11/2021                                        

Date of Judgment: 18/09/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                             BRIEF FACTS

Complainant had entered into an agreement for sale on 22/01/2019 with the opposite party no. 1 which was represented and signed by OP No. 2 as developer as well as constituted attorney of OP No. 4 & 5, in respect of a flat measuring 1150 sq. ft. more or less on the 4^th floor, South East facing Block ‘B’ and one open car parking space as mentioned in the 2^nd schedule of the said agreement at a consideration of Rs. 48,00,000/-. Complainant paid Rs. 32,00,000/- towards the said amount of consideration by way of cash and also by cheques on different dates. Thereafter complainant tried to procure the balance amount of consideration of Rs. 16,00,000/- by way of loan from LIC Housing Finance Ltd. His application for loan was rejected for the reason that the said flat had already been sold to some other person behind the back of the complainant. Then complainant tried to get back refund of the amount paid by him and OP No. 1 executed a “declaration-cum-undertaking” on 02/11/2020 in presence of two witnesses wherein he undertook to refund the said amount of Rs. 32,00,000/- along with compensation of Rs. 1,60,000/- totalling Rs. 33,60,000/- to the complainant within 31/01/2021. But the said OP failed to pay the said amount to the complainant. Thereafter complainant, alleging deficiency in service and unfair trade practice against the opposite parties filed this complaint.

Opposite party did not contest the case by filing a written version.

Point for consideration is whether the complainant is entitled to any relief?

                                                                           FINDINGS

Complainant produced his evidence on affidavit and also the document including the agreement for sale dated 22/01/2019. We find that the said agreement was entered into by the complainant and his father Kalyan Sengupta and OP Nos. 2 & 3 the partner of OP No. 1. OP Nos. 1, 2 & 3 are the developers of the project where the complainant had booked his flat. In the written argument the complainant admitted that his father was also a signatory to the said agreement for sale and he is the legal heir of his father.

It is further found that OP Nos. 1 & 2 the partner of OP No. 1 had also agreed to refund the entire amount of Rs. 32,00,000/- which was paid for the flat.  “Declaration-cum-undertaking” Annexure ‘B’ produced by the complainant reveals admission of the payment of the said amount having been made to them by the complainant and he had agreed to pay the said amount of Rs. 32,00,000/- along with 1,60,000/- in total 33,60,000/- to the complainant by 31/01/2021 but no such amount was refunded by him.

Complainant claimed refund of the said amount from the said OPs. Therefore we think, considering the materials on record, he is entitled to get refund of the said amount along with interest @ 9% p.a. from the date of 31/01/2021 within which OP had agreed to refund the amount. He is  also entitled to cost of litigation to the tune of Rs. 5,000/-.

Accordingly, it is

                                                                ORDERED

that the instant complaint is allowed exparte against OP Nos. 1, 2 & 3 and dismissed against OP Nos. 4 & 5a to 5d.

OP Nos. 1, 2 & 3 are directed to pay the amount of Rs. 33,60,000/- along with interest @ 9% p.a. from the date of 31/01/2021 to the complainant.

The said OP Nos. 1, 2 & 3 are also directed to pay Rs. 5,000/-to the complainant for cost of litigation.

The aforesaid payment shall be made by the OP Nos. 1, 2 & 3 within 45 days from the date of this order failing which the complainant shall be at liberty to proceed in accordance with law.    

Dictated and corrected by me

President