Dt. of filing : 30/08/2019

Dt. of Judgement : 28/01/2021

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Prahlad Dey under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (referred as OPs hereafter) namely 1) M/s. Neo Construction, 2) Sri Nirmal Kumar Das, 3) Sri Indranil Chatterjee, 4) Smt. Jyotshna Das, 5) Sri Pradip Das 6) Sri Shyamal Das 7) Sri Sanjoy Das and 8) Smt Sulekha Bauri alleging deficiency in service on their part.

          Case of the Complainant in short is that Opposite Party No.1 being represented by its partners Opposite Party No.2 & 3 entered into development agreement with Opposite Party Nos. 4 to 8 joint owners, in respect of the property described in the said development agreement dated 7/02/2012. Subsequently by an agreement for sale dated 7/07/2015 which was also registered, Opposite Party No.2 & 3 as partners of Opposite Party No.1 and Constituted Attorney of Opposite Party No.4 to 8 agreed to sell the flat as described in the said agreement on payment of consideration of Rs.17,00,000/-. Complainant has paid sum of Rs.10,20,000/- till the date of execution of agreement to the Opposite Party No.2 & 3 and thereafter further paid sum of Rs.3,00,000/-. So Complainant has paid total sum of Rs.13,20,000/- and he was always willing to pay balance consideration of Rs.3,80,000/-. But the Opposite Parties have neither handed over the possession of the flat nor have executed the Deed of Conveyance. Thus the present complaint is filed praying for directing the Opposite Parties to complete the registration of the flat in favour of the Complainant or award Rs.13,20,000/- paid by the Complainant to the Opposite Parties as consideration price, to pay Rs.1,20,000/-, to pay Rs.20,000/- as compensation on account of cost and charges paid for pursuing claim, to pay Rs.20,000/- on account of mental agony, Rs.20,000/-  for unfair trade practice and Rs.10,000/- as litigation cost.

          Complainant has annexed with the complaint the registered agreement dated 7/07/2015 executed by and between parties and several money receipts.

          On perusal of the record it appears that in spite of service of the notice, Opposite Parties took no step and thus in view of the order dated 14/1/2020 the case was directed to be proceeded ex-parte.

          During the course of the trial, Complainant filed affidavit-in-chief in support of his claim and subsequently also filed Brief Notes of Argument.

          So the only point requires determination:-

          Whether the Complainant is entitled to the relief as prayed?     

Decision with reason

          Complainant in support of his claim that OP No.1 being represented by its partners Opposite Party No.2 & 3 agreed to sell a flat by an agreement for sale on payment of consideration of Rs.17,00,000/- has filed the said agreement for sale dated 07/07/2015. It appears from the said registered agreement that an amount of Rs.10,20,000/- in total was paid by the Complainant to Opposite Party No.2 & 3 being partners of Opposite Party No.1 firm till the date of execution of agreement. As per agreement Complainant was liable to pay balance amount of consideration of Rs.6,80,000/- as per Schedule ‘E’ of the agreement. Opposite PartyNo.1 being represented by Opposite Party No.2 & 3 executed the said agreement, to sell the flat in favour of the Complainant from developer’s allocation and as constituted Attorney of OP No.4 to 8 the owners of the property. Those owners entered into a development agreement with the Opposite Party No.1 and had executed Power of Attorney in their favour. According to Complainant, he had paid total sum of Rs.13,20,000/- but neither the flat as agreed has been handed over nor the money has been refunded. But on a careful scrutiny of the receipts filed by the Complainant, it appears that he has paid only Rs.80,000/- and Rs.20,000/- on 15/7/2017 and 18/9/2017 respectively after the execution of agreement. It is claimed by the Complainant that he paid further sum of Rs.3,00,000/- after the agreement but no such receipt has been filed. So if till the date of execution of agreement Complainant paid Rs.10,20,000/- as mentioned in the memo of consideration than taking into consideration of further payment of Rs.20,000/- and Rs.80,000/- Complainant has paid total sum of Rs.11,20,000/- and not Rs.13,20,000/- as claimed by the Complainant.

          On perusal of the reliefs as prayed in the complaint, Complainant has only prayed for directing Opposite Parties to execute the Deed of Conveyance without seeking the relief of the delivery of possession. However in alternatively, he has also prayed for an award of Rs.13,20,000/- being the consideration amount paid to the Opposite Parties indicating that in alternative, he has prayed for directing the Opposite Parties to refund the amount paid by him towards consideration price.

          Since Complainant has established his claim that Opposite Party No.2 & 3 being partners of Opposite Party No.1/the developer, agreed to sell the flat and received Rs.11,20,000/- but has neither delivered the flat nor refunded the money, he is entitled to refund of the amount paid by him especially when before this Commission no contrary material is forthcoming to counter or rebut the claim of Complainant. Complainant is also entitled to the compensation in the form of interest on the said sum and litigation cost.

 Hence

                             ORDERED

CC/463/2019 is allowed ex-parte against Opposite Parties. Opposite Party No.1 to 3/developers are directed to refund Rs.11,20,000/- to the Complainant along with interest on the said sum @ 12% p.a. from the date of agreement for sale i.e. 07/07/2015 to till this date within two months from this date in default the amount shall carry interest @ 12% p.a. till realisation. Opposite Parties are further directed to pay Rs.10,000/- as litigation cost to the Complainant within the aforesaid period of two months.