Date of Filing : 10/06/2019
Date of Judgement : 02/01/2024
Sri Sudip Niyogi, Hon’ble President
BRIEF FACTS
Complainant had agreed to buy one 500 sq.ft. super built up area flat on the 2nd floor west side at the premises which was owned and subsequently developed by OP 3 & 4 at a consideration of Rs.12 lakh. He paid Rs.5 lakh as advance by issuing cheque and by cash. Subsequently, he also paid Rs.1.50 lakh by way of cheque and Rs.1.50 lakh by way of cash, to them. Subsequently, said OP 1 & 2 did not make construction over the land and on 28/4/2015 OP 5 executed a new agreement with the complainant as an intending developer and he agreed to refund the earnest money of Rs.8 lakh to the complainant after deduction of 20% of the total amount. Accordingly, OP 5 refunded Rs.1 lakh out of Rs.6.40 lakh, i.e. the amount after deduction of 20%. According to complainant, the said OP 5 did not refund the remaining amount despite of repeated requests. So, he prayed for refund of the said amount of Rs.5.40 lakh and cost of litigation.
OP 5 filed one written version and he prayed for dismissal of the instant complaint though admitted to have refunded Rs.1 lakh as part payment. The other OPs did not appear to contest the case. So, it was heard exparte against them.
Now, the point for determination is whether the complainant is entitled to any relief(s) in this case.
FINDINGS
On the prayer of the complainant, the petition of complaint alongwith annexure was treated as evidence on his part. Complainant produced the papers relating to agreement for sale, bank pass book and money receipts etc.
It is found from the materials that initially complainant had entered into an agreement with OP 1 & 2, the original developers who wanted to sell the 500 sq. ft. super built up area flat at premises No. 62 Nazirbagan, P.S. Garfa, Kolkata 700 078 to the complainant and he made advance towards consideration of Rs.12 lakh. However, subsequently, as the said OP 1 & 2 failed to complete the construction, OP 5 agreed to complete the development of the said property and made an agreement with the complainant and he agreed to refund the advance received from the complainant.
From the document, it is found that complainant paid advance through cheques and also by cash and in his agreement, OP 5 admitted the same by stating that complainant paid Rs.8 lakh for the flat to the erstwhile developers and this OP 5 also agreed to refund the same. This apart, in his written version he admitted the same about the agreement made between him and the complainant. He also admitted that he agreed to refund the said amount of Rs.8 lakh after deduction of 20% as damages. So, the amount to be refunded would be Rs.6.40 lakh. It is admitted by the complainant as also OP 5 that out of the said amount of Rs.6.40 lakh, Rs.1 lakh was refunded to the complainant by OP 5, but the balance amount was not refunded and that is why the complainant approached this commission for relief.
Having gone through the materials on record, we find, the complainant is entitled to get refund of Rs.5.40 lakh along with interest @9% per annum from OP 5 and also cost of litigation.
Therefore, it is
ORDERED
That the instant case stands allowed against OP 5 on contest and dismissed against the remaining OPs i.e. OPs 1 to 4.
OP 5 is directed to refund the said amount of Rs.5.40 lakh alongwith interest @9% per annum from the date of 10/6/2016, when the refund of Rs.1 lakh was made by him, till realization.
OP 5 also to pay cost of litigation of Rs.10,000/- to the complainant.
The aforesaid order shall be complied 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
