Ld. Advocate(s)
For Complainant: Suvankar Bhattacharya
For OP/OPs : None
Date of filing of the case :13.04.2023
Date of Disposal of the case :29.01.2024
Final Order / Judgment dtd.29.01.2024
The concise fact of the case of the complainants is that the present complainants Indranil Mukherjee and Sangita Banerjee @ Mukherjee as purchaser agreed to purchase flat No.3C on the third
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floor, Block-2 having super built area approximately 882 sq.ft. consisting of 3 bed rooms, one dining room, one kitchen two toilets, one Varandah along with space for one four wheeler parking. OPs M/S. Arokya Niwas Pvt. Ltd and Simoco Systems and Infrastructure Solution Ltd agreed to sale out the said flat at a total consideration price of 20,87,480/-. The complainants initially paid Rs.3,77,496/- as earnest money and Rs.93,374/- towards allotment money, total Rs.4,71,880/- through account payee cheque no.6644018 drawn on SBI, Nabadwip branch. After receiving the said amount the OPs issued a money receipt by acknowledging the said payment in respect of booking of apartment 3C on 3rd floor in “Sanhita” Block-2 of 882 sq.ft. on 13.09.2017. The OPs issued a demand notice for instalment payment of the said flat for Rs.6,57,653/- within 15 days. The complainants took financial assistance from the UBI, Nabadwip Branch and paid Rs.6,34,894/- through demand notice and the OPs received the said sum of Rs.6,34,894/- from the complainants through online payment of UBI and issued a receipt on 27.02.2018. The Developer agreed to handover the possession of the flat within 36 months with a grace period of 6 months. Due to Covid situation the complainants did not give any pressure to the OPs. The complainants, thereafter served a notice to the OPs through e-mail stating that as there was failure to complete the project with demand to refund the said sum of Rs.4,71,870/- plus Rs.6,34,894/- by cancelling the said agreement on 27.04.2021. The OPs replied on 06.09.2022 wherein they agreed to refund the said money to the complainants. Due to such acts on the part of the OPs the complainants suffered mental pain and agony. The OPs have done unfair trade practice upon the complainants. The complainants therefore, filed this case against the OPs. The complainants therefore, prayed for an award for Rs.11,06,764/- with 12% interest, Rs.1,00,000/- for harassment and deficiency in service and Rs.1,00,000/- towards litigation cost.
As per order no.6 dated 07.07.2023 and order no.9 dated 13.10.2023 the case is decided to be heard ex-parte against both the OP No.1& 2.
The complainants in order to substantiate the case adduced both oral evidence by filing affidavit in chief and documentary evidence. The complainants also proved the different documents as under:-
No.1.
Corrigendum to partnership agreement dated 27.07.2016.
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No.2.
General Power of Attorney dated 03.03.2015.
No.3.
Corrigendum to power of Attorney dated 02.08.2016.
No.4.
Agreement for sale dated 29.09.2016.
No.5.
Arokya Niwas Pvt. Ltd money receipt dated 17.06.2016.
No.6.
Cheque dated 17.06.2016.
No.7.
Demand notice by Arokya Niwas Pvt. Ltd dated 13.09.2017.
No.8.
Tax in voice of Arokya Niwas Pvt. Ltd dated 27.02.2018.
No.9.
E-mail by Indranil Mukherjee dated 27.04.2021.
After perusing the pleadings of the complainant and the documents proved by them it is found that there was an agreement between the parties for sale of the said disputed house/flat no.3C on the third floor Block-2 having super built of 882 sq. ft. . The complainant duly paid the price for the said flat and the OPs received Rs.6,34,894/-. The OPs failed to comply with the terms of the agreement on their part. The said agreement subsequently, was cancelled. It stands also established that the OPs failed to comply with the terms of the agreement but despite several requests the OPs did not refund the said money to the complainants.
The entire allegations of the facts made out in the complaint stands unchallenged and undiscarded in as much as the OPs preferred not to contest the case and the same is heard ex-parte.
In the result having considered the entire pleadings of the complainants and the evidence adduced on their part vis-a-vis the observation made in the foregoing paragraphs this Commission holds that the complainant successfully proved the case against the OPs upto the hilt.
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The aforesaid misdeeds on the part of the OPs tantamounts to deficiency in service.
Consequently, the complaint case succeeds ex-parte against both the OP No.1&2 with cost.
Hence,
It is
Ordered
that the complaint case no.CC/27/2023 be and the same is allowed ex-parte against the OPs, with cost of Rs.50,000/- (Rupees fifty thousand). The complainant do get an award ex-parte against the OPs for a sum of Rs.11,06,764/-(Rupees eleven lakh six thousand seven hundred sixty four) together with interest @12%p.a from 17.06.2016 till the date of payment, Rs.1,00,000/- (Rupees one lakh) towards deficiency in service and harassment and Rs.50,000/- (Rupees fifty thousand) towards litigation cost. Both the OPs are directed jointly and severally to refund Rs.12,56,764/-/- (Rupees twelve lakh fifty six thousand seven hundred sixty four) to the complainants within 30 days from the date of passing the final order failing which the entire award money shall carry an interest @ 8% p.a. from the date of its passing the final order till the date of its realisation.
All Interim Applications (I.A) stand disposed of accordingly.
D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................ ..........................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
