Date of filing: 11/03/2022
Judgment date: 06/10/2023
Mr. Sudip Niyogi, Hon’ble President
BRIEF FACTS
Complainant had entered into an agreement for sale with OP No. 1 developer on 01/02/2018 for purchasing one self contained flat from the developer’s allocation being flat no. 2A measuring about 850 sq. ft. super built up area at premises no. 333, S.N. Roy Road, Behala, Kolkata – 700 038 at a consideration of Rs. 36,06,250/-. OP No. 1 following one development agreement dated 27/01/2014 with Late Santona Mitra, owner of the said premises undertook to raise a G+2 storied building on the said premises on a sanctioned building plan to be issued by the Kolkata Municipal Corporation. He also got power of attorney from the said owner. Complainant paid Rs. 15,70,000/- on different occasions by cheques and Rs. 2,96,000/- by cash towards consideration of the said flat and also obtained money receipts from the OP developer. When complainant approached bank for house building loan, he could not procure the same as the land where the said building was to be raised was recorded as water body in the Government records. He also informed the same to the OP who assured him of obtaining necessary conversion of the character of the land. But OP failed to get conversing the character of the said land and also deliver the possession of his flat. So he requested for refund of the amount paid by him by way of a demand notice. He also sent such notice through his Advocate but despite receipt of the notice OP did not do anything. So he filed this complaint praying for a direction of the OPs to refund the amount paid by him along with interest, compensation, cost of litigation.
Opposite party did not appear to contest the case. So it was heard exparte against him.
Point for consideration is whether the complainant is entitled to any relief in this case?
FINDINGS
Complainant filed evidence and also produced documents. From the Memorandum of Understanding dated 27/01/2014 and the general power of attorney dated 17/08/2015 it is found that opposite parties undertook to develop the property at premises no. 333A, S.N. Roy Road, Behala, Kolkata – 700 038 as developer. By way of an agreement of sale with the OPs on 01/02/2018 complainant agreed to buy his flat measuring 850 sq. ft. as mentioned in schedule ‘B’ to the said agreement at a consideration of Rs. 35,06,250/-. The money receipts issued by the opposite party revealed that complainant paid towards consideration by making payment of different dates. The money receipts issued by the OP and produced by the complainant revealed that he already paid Rs. 18,66,000/- towards consideration. The information slip obtained from the concerned department of the Government as obtained and produced by the complainant revealed the land where the proposed G+2 building would be raised was shown as pukur (pond) and i.e. why the complainant claimed to have not being able to get home loan for his flat from the bank. In such circumstances complainant wanted to get refund of his hard earned money that he advanced towards consideration of his flat.
The contention of the complainant remained unchallenged as OP failed to controvert the same by putting their case if there be any. So complainant has been able to prove his case and therefore he is entitled to relief(s) in the form of an order for refund of the money paid by him along with interest and cost of litigation.
Accordingly it is
ORDERED
That the instant complaint is allowed exparte against the OPs.
OPs are directed to refund Rs. 18,66,000/- along with interest @ 9% p.a. from 05/08/2019 when the last payment of consideration was made by the complainant.
OPs are also directed to pay Rs. 5,000/- for cost of litigation.
OPs are directed to comply with this order 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
