Dt. of filing – 12/10/2018

Dt. of Judgement – 23/10/2019

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the Complainant namely Bhola Biswas under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) M/s. Somadhan Realtor Pvt. Ltd. and 2) Sri Debashis Sarkar alleging deficiency in service on their part.

          Case of the Complainant in short is that Opposite Party No.1 is the developer being represented by Managing Director Opposite Party No.2. Complainant by agreement for sale dated 20/4/2016 and 02/08/2016 agreed to purchase flat and car parking space described in the schedule of the complaint from the Opposite Parties at a total consideration of Rs.14,11,000/-. Complainant had also taken the loan from the bank to pay the said consideration money to the Opposite Parties. The construction of the multi-storied building was started but then the work was completely stopped and remained unfinished till the date of filing of the complaint. On several occasion Complainant requested the Opposite Parties to complete the construction work and to handover the possession and execute the Deed of Conveyance.  But they failed and neglected to do so. Complainant had paid total consideration price of Rs.14,11,000/-. But the Opposite Parties have neither delivered the possession nor have refunded the money. Opposite Parties had also agreed in the agreement of sale that in case of failure to handover the flat within the stipulated time they will be liable to pay sum of Rs.1,000/- per month. But the said amount has also not been paid by the Opposite Parties to the Complainant. As per the agreement, flat and car parking space was to be handed over within 12 months from the date of execution of the agreement. So the present complaint has been filed praying for directing the Opposite Parties to refund the total consideration money of Rs.14,11,000/- along with interest @ 12% p.a., to pay Rs.1,000/- per month as per agreement from 20/5/2017, to pay compensation of Rs.5,00,000/- and litigation cost of Rs.50,000/-.

          Complainant has annexed with the complaint petition, copy of the two agreement dated 20/4/2016 and 2/8/2016 entered into between parties, copy of letter sent by the Complainant to the Opposite Party dated 20/01/2018, Bank Statement, Money Receipts and also copy of the letter sent by the Indian Overseas Bank dated 11/9/2019 to the Complainant.

          On perusal of record it appears that inspite of service of notice no step was taken by the Opposite Parties and neither any written version was filed. So the case came up for ex-parte hearing vide order dated 7/6/2019.

          Only point requires determination is:-

          Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

          On perusal of agreement dated 20/4/2016 it appears that the Complainant agreed to purchase flat described in the schedule ‘B’ of the agreement at a consideration of Rs.11,71,000/- and on the date of agreement, Complainant had paid a sum of Rs.2,20,000/- to the Opposite Party developer. As per agreement possession of the flat was to be handed over within 12 months. In case of failure the Opposite Party developer was liable to pay Rs.1,000/- per month. The agreement dated 2/8/2016 indicates that Complainant agreed to purchase car parking space described in the schedule therein at a total consideration of Rs.4,40,000/- and on the date of the said agreement, Complainant paid Rs.30,000/- to the Opposite Parties. According to the Complainant, he has paid the entire consideration price of Rs.14,11,000/-. But he has not been delivered possession of the flat and the car parking space. According to him construction work was not completed. In order to substantiate the payment of the total sum as claimed by him Complainant has filed the Bank Statement including the letter dated 11/9/2019 sent by the Bank in response to the e-mail sent by the Complainant wherefrom it appears that an amount of Rs.8,00,000/- and Rs.3,50,000/- was allowed as house loan in favour of the Complainant by the Bank and it was disbursed or remitted to Opposite Party No.1. So the Bank documents including recital in the agreement regarding payment by Complainant on the date of two agreements, establishes the claim of the Complainant about payment of total consideration amount of Rs.14,11,000/- to the Opposite Parties. However, document dated 20/01/2018 filed by the Complainant himself which is addressed to the Opposite Party No.2 indicates that the Complainant has taken loan of Rs.40,000/- from the Opposite Party in order to pay the EMI. It also appears that an amount of Rs.71,000/- was paid by the Opposite Party to the Complainant by way of cheque. However, according to the Complainant the said cheque was lost and he did not encash the said amount. In such a situation in the absence of any contrary material in order to counter or rebut the claim of the Complainant, Complainant is entitled to the amount as claimed by him after deducting the said sum of Rs.40,000/- (Rs.14,11,000/- - Rs.40,000/ =Rs.13,71,000/-), along with interest. However, claim of the Complainant that he is also entitled to Rs.1,000/- per month cannot be allowed, keeping in view the letter dated 20/1/2018 and also as the present complaint is filed only for refund of money.

Hence,

                             ORDERED

CC/609/2018 is allowed ex-parte. Opposite Parties are directed to pay Rs.13,71,000/- along with interest (in the form of compensation) @9% p.a from 18/08/2016 (date of disbursement of loan amount by the bank), to till this date within 2(Two) months from the date of this order.

Opposite Parties are further directed to pay Rs.10,000/- as litigation cost to the Complainant within the aforesaid period of 2(Two) months in default the entire sum shall carry interest @9% p.a. till realisation.