Date of filing: 03/03/2020                                        

Date of Judgment: 27/06/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Sri Chanchal Barman under section 12 of the Consumer Protection Act, 1986, against opposite parties (referred as OPs hereinafter) namely (1) M/s. Pati Associates (2) Balaram Pati, proprietor of the OP 1 (3) Mrs. Dola Sarkar (4) Smt. Shipra Guha Roy (5) Smt. Sucheta Biswas (6) Smt. Tandra Bhowmick (7) Smt. Roma Roy (8) Smt Bhagya Shayamal (9) Smt. Chitrali Dakua (1) Smt. Subamita Chakraborty (11) Smt. Itika Mitra and (12) Sri Sandip Sarkar alleging deficiency in service on the part of OPs.

Case of the complainant in short is that OP Nos. 3 to 12 being the owners entered into a development agreement with OP 1 & 2 the developer to construct a multi storied building. Subsequently by an agreement for sale dated 17/04/2013 OP 1 & 2 agreed to sell a car parking space to the complainant at a total consideration price of Rs. 1,05,000/-. Complainant has paid Rs. 55,000/- out of the said total consideration price. The said building was completed but the OP 1 & 2 failed and neglected to deliver the possession of the car parking space to the complainant. So a notice was sent by the complainant through his Ld. Advocate to the OP 1 & 2. But the same was not delivered. Thereafter on much insistence by the complainant, OP 1 & 2 confessed that they were unable to deliver possession of the car parking space and agreed to return the advance paid by the complainant and accordingly issued the cheque dated 03/06/2019 to the complainant. But on presentation of the said cheque, same was returned dishonoured with remark insufficient fund. So the present complaint has been filed by the complainant praying for directing the OPs to deliver possession of the car parking space and to register the deed, in alternatively to refund the advance paid by the complainant of Rs. 55,000/- along with interest therein, to pay compensation of Rs. 30,000/- and to pay litigation cost of Rs. 15,000/-.

On perusal of the record it appears that only OP 3 has contested this case by filing the written version stating therein that a development agreement was entered into with the OP 1 & 2 but they violated the terms and conditions of the development agreement and did not deliver the owners allocation fully as per the said development agreement. It is further contended by OP 3 that the owners have no personal knowledge about the agreement for sale entered into between the complainant and OP 1 & 2 and further about the payment of Rs. 55,000/- by the complainant to OP Nos. 1 & 2. Thus it is contented that they are not responsible for any deficiency in service.

Other OPs did not turn up on service of notice and thus the case has been heard exparte against them.

The only point requires determination is whether the complainant is entitled to the relief as prayed by him?

DECISION WITH REASON

In order to substantiate his claim complainant has filed agreement for sale dated 17/04/2013 notarised on 02/08/2013. He has also filed money receipt showing payment of Rs. 55,000/- in total and also original cheque along with cheque returned memo of the bank. It is evident from the agreement for sale that the OP 1 & 2 being the developers had agreed to sell the car parking space as described in the 2^nd schedule of the said agreement. The memo of consideration in the said agreement indicates that sum of Rs. 55,000/- was paid to the OP 2 the proprietor of OP 1 at the time of execution of the said agreement. Apart from this, the payment of the said sum by the complainant is further strengthened from the money receipt filed by the complainant. It is the specific claim of the complainant that the OP 1 & 2 confessed that they were unable to deliver the possession and so issued the cheque towards refund of  the said sum of Rs. 55,000/- paid by the complainant. The claim of the complainant that OPs were unable to deliver the possession and so issued cheque is established from the original cheque dated 03/06/2019 filed by the complainant, appears to have been issued by the OP 2. From the cheque returned memo of the bank, it appears that the said cheque was dishonoured on the ground of fund insufficient. In such a situation as neither the car parking space has been delivered nor the amount has been returned to the complainant, complainant is entitled to the refund of the said sum of Rs. 55,000/- along with compensation in the form of interest especially when before this commission there is absolutely no contrary material to counter the claim of the complainant. Be it mentioned here that the direction to OPs to deliver possession of car parking space would be ineffective as it is the admitted case of the complainant that OP 1 & 2 had confessed that they were unable to deliver possession.

Hence

            ORDERED

CC/103/2020 is allowed exparte against OP 1 & 2 and dismissed on contest against OP 3 and exparte against OP Nos. 4 to 12. OP 1 & 2 are directed to refund Rs. 55,000/- to the complainant along with interest on the said sum @ 8% p.a. from 02/08/2013 (the date on which agreement for sale was notarised) to this date within 45 days from the date of communication of this order. OP 1 & 2 are further directed to pay litigation cost of Rs. 8,000/- within the aforesaid period of 45 days in default the entire sum shall carry interest @ 8% p.a. till realisation.