Date of Filing: 31.10.2018
Date of Judgment: 21.04.2022
Mrs. Sashi Kala Basu, Hon’ble President
This is a complaint filed by the complainant , Syamal Kumar Mahanty, under section 12 of the C.P Act, 1986 against the O.Ps namely 1) M/s Sun Enterprise, 2) Surya Kanta Jana, 3) Tapan Chowdhury, and Proforma O.Ps namely 4) Mrinal Kanti Paul Chowdhury, 5) Subrata Paul Chowdhury and 6) Debabrata Paul Chowdhury , alleging deficiency in service on the part of the O.Ps.
The case of the complainant in short is that he agreed to purchase a flat from O.P nos. 1,2 and 3 . O.P nos. 2 and 3 are the partners of O.P no.1 Firm, at a total consideration of Rs.14,50,000/-, out of which he has already paid Rs. 8,75,000/- securing loan of Rs.8 Lac from the SBI. An Agreement was entered into between the parties o n 6.12.2011 ,whereby the O.P agreed to hand over the possession within December, 2012. However, a supplementary agreement was executed again between the parties on the request of the developers on 18.3.2013 ,whereby the developers agreed to hand over the possession within 31st December, 2017. But inspite of the same, O.P/developers have failed to hand over the possession of the subject flat, as the property is still not completed. So, the complainant has prayed for refund of the sum paid by him of Rs. 8,75,000/- and to pay compensation as well as litigation cost.
Complainant has filed with the complaint, the Agreement entered into between the parties , money receipts, Loan sanctioned letter issued by the Bank and the Demand Notice sent by the complainant to the O.Ps.
On perusal of the record it appears that no step has been taken by the O.P nos. 4 to 6 being the owners of the property. So, the case proceeded exparte against them.
However, O.P nos. 1 to 3 filed written version ,whereby they have admitted about the payment of sum of Rs. 8,75,000/- by the complainant , but have contended that they were unable to complete the construction work and to hand over the flat to the complainant due to legal impediment. There has been issuance of notice by the Housing Department ,for which construction work has been halted. So, O.Ps will be able to hand over the flat to the complainant on completion subject to removal of the legal embargo.
During the course of the evidence, complainant filed affidavit-in-chief. But no questionnaire was filed by the O.P, neither any evidence was filed . So, the case was fixed for argument. During the argument complainant has filed BNA. But no step is taken by the contesting O.Ps.
So, the following points required determination:
- Whether there has been any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Both the points are taken up together for consideration in order to avoid repetition.
Complainant in order to substantiate his claim that by an agreement for sale entered into between the parties on 6.12.2011 and also a supplementary agreement entered into between the parties on 18.3.2013, he agreed to purchase a flat, complainant has filed those agreements, wherefrom it appears that complainant agreed to buy the flat as described therein at a total consideration of Rs. 14,50,000/-. So far as payment of Rs.8,75,000/- as claimed by the complainant and the execution of the agreements between the parties have not been disputed and denied by the O.P/developers. Complainant has also filed money receipt showing such payment to the developers. He has also filed Loan Sanctioned letter issued by the Bank that he has taken home loan from SBI.
O.P nos. 1 to 3 have admitted in their written version that due to some legal embargo they could not hand over the possession of the flat . So, claim of the complainant that he has not been handed over the subject flat inspite of extension of the period till 2017 and even thereafter, remains undisputed. So, he is entitled to refund of the sum as claimed by him of Rs.8,75,000/- and also interest on the said sum in the form of compensation.
However, it will be appropriate to mention here that Bank has sanctioned Rs.8 lac on the surety of the said flat which was agreed to be purchased by the complainant. So, if the said loan amount has not been repaid , Bank is entitled to recover the same in accordance with the bank rules and regulation.
Hence,
ORDERED
That CC/617/2018 is allowed on contest against O.P nos. 1,2 and 3 and dismissed exparte against O.P nos. 4 to 6.
O.P nos. 1, 2 and 3 are directed to refund Rs.8,75,000/- to the complainant along with interest on the said sum @8% p.a from the date of last payment made by the complainant to the O.P, till this date within 90 days from this date.
The O.P nos. 1,2 and 3 are also directed to pay litigation cost of Rs.10,000/- to the complainant within the aforesaid period of 90 days, failing which, entire sum shall carry interest @8% p.a till realization.
