Date of Filing : 17/08/2018

Date of Judgement : 19/12/2023

Mr Sudip Niyogi, Hon’ble President

                                                                BRIEF FACTS

Petitioners had booked a one room flat in the project named Amrita Awas at Sonarpur, Natagachi by filing the application form and paid advance of Rs.20,000/- to OPs. The consideration of the said flat was Rs.7,46,200/-. Subsequently the petitioners paid Rs.2,11,636/- for the said flat and one agreement for sale was executed between the parties on 03/05/2016.  According to the said agreement the said unit to be completed within 24 months from the date of commencement of the construction which may be extended for another six months subject to the unavoidable circumstances beyond the control of the vendor.  The petitioners enquired from time to time the progress of the said project and he was assured that the possession of the said flat would be given within the stipulated time.  According to the petitioners they found that minimum excavation work was not started at the project site and therefore they issued legal notice to the opposite parties through their advocate claiming for refund of the amount of rupees advanced by them for the flat. Despite receipt of the said notice, the OPs did not give any reply. So the petitioners in order to realize the said amount of the advance and also praying for compensation and cost of litigation filed the present complaint before this commission against the OPs.

OP1 filed a written version denying the allegation of the petitioners. Their contention is that OP is entitled to deduct a sum of Rs.50,000/- from  the advance made by the petitioners, as petitioners went to get rid of the agreement for their personal reasons.

OP2 & OP3 also filed a separate written version also denying the claim of the petitioners. OP1 in their written version admitted that OP2 and OP3 are their office assistance and they acted on behalf of the OP1/Firm. No separate written version was filed on behalf of the OP4.

POINTS FOR CONSIDERATION

Whether the complainants is entitled to any relief(s) in this case

FINDINGS

Petitioners, OP1 filed their evidence, Interrogatories and Replies.  Opposite Parties also filed BNA.  Both parties filed copies of several documents including the agreement for sale dated 03/05/2016.

In this case we find it is admitted that the agreement for sale was made between the parties on 03/05/2016 in respect of the flat as claimed by the complainant and it was also stated in details in Part-I Second Schedule of the said agreement for sale.  That out of the consideration of Rs.7,46,200/-, the complainant paid Rs.2,31,636/- is admitted. This apart, money receipts issued by the OPs also supported that fact.

Now according to the OPs that they have no laches in the matter. It is the petitioners who by claiming some unavoidable personal reasons they preferred not to proceed further with the matter.  In this connection opposite parties submitted one document (copy of letter dated 21/11/2017) by claiming that they received this letter from the petitioners.  It was addressed to OP No.1 and written by one R Dasgupta and Subhra Dasgupta on 21/11/2017.  In the said letter it was stated that they had paid Rs.2,31,636/- as advance booking but due to certain unavoidable personal reasons they are no more interested  in the project  and therefore made a request for getting refund of the said advance after making necessary adjustment as per terms mentioned in the agreement paper.  In their interrogatories OP1 specifically asked questions as to this letter of the petitioners, but they are found to have evaded giving any direct and specific answer.

During argument also when this matter was raised on behalf of the OPs, nothing was submitted on behalf of the petitioners.  Though no original of this letter was produced, however, considering the replies given on behalf of the petitioners, we are not in a position to discard this letter altogether.

In this connection from the submission of the OPs, it is found that they are ready to refund the advance made by the petitioners subject to deductions of the amount of Rs.50,000/- therefrom under the terms in the Clause 11.1 of the agreement for sale.  Following the terms of the said clause of the agreement for sale, it is found that in the event the buyers failed to make timely payment or performing their obligations etc, at the option of the seller, the said agreement would be cancelled and the seller within 3 months from the date of cancellation, refund to the buyers, of the payment received till that date without any interest after deducting 10% of the total price as liquidated damages or Rs.50,000/- whichever is higher. It is also found from the documents produced on behalf of the OPs that on receipt of the letter of document of demand through advocate of the petitioners, one reply was issued through advocate intimating the terms of the said clause 11.1 of the agreement and further they  also informed the petitioners to pay the balance sum and that they are holding their  options to subsist without cancelling the same and requested for making payment of the balance sum. However, even after this letter was issued by the OPs, no further development is found to be made as per provision.

It is also to be pointed out that the OPs on the other hand did not produce any evidence showing any damage suffered by them following the complainants’ decision to come out of the said agreement for sale.

So on consideration of the materials on records and hearing argument, advancement by both the parties, we think that we are inclined to pass order for refund of the amount as advanced made by the petitioners deduction of Rs.15,000/- from the said amount i.e. Rs.2,31,636 - 15,000= Rs. 2,16,636/-.  

However, the complainants are entitled to interest @7% on this amount  from the date of this order till realization.

This apart complainants are also entitled to cost of litigation of Rs.6,000/- .

Accordingly it is

                                     ORDERED

That the instant complaint is allowed on contest against OP No.1,2 & 3 and ex parte against OP No.4. 

OP1 & OP2 are directed to refund the amount of Rs.2,16,636/- (being amount after deduction of Rs.15,000/-) along with interest @7% from the date of this order till the realization to the complainant.

This apart OP1 & OP2 are directed to pay Rs.6,000/- to the complainant .  both the said OPs i.e. OP1 & OP2 are directed to comply with the aforesaid order within the period of 45 days from this order failing which the complainant is at liberty to proceed in accordance with law.

Dictated and corrected by me

               President