Date of filing : 09.07.2018

Judgment : Dt.15.01.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Prasanta Roy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s Chakraborty and Company, (2) Soumen Das and (3) Salil Das

            Case of the Complainant, in short, is that he agreed to purchase a flat measuring 575 sq.ft. in the 1st floor of premises No.106, Motilal Gupta Road, P.S.-Haridevpur within K.M.C. Ward No.122, from the OP No.1 at a consideration of Rs.8,50,000/-. OP No.1 is the developer and OP No.2 & 3 are joint-owners of the land and they entered into a development agreement on 17.12.2015 to develop the land by way of construction of a three storied building. A General Power of Attorney was also executed in favour of the OP No.1 by the land-owners and was registered on 2.2.2016. The agreement between the Complainant and the OP No.1 to sell the flat to the Complainant was entered into on 31.1.2017. An amount of Rs.1,00,000/- was paid by the Complainant on the date of execution of the said agreement for sale. It was agreed by the OP that the possession of the flat would be delivered within December, 2017 in a good and habitable condition. But the OP No.1 has neither delivered the possession nor has executed and registered the deed of conveyance in favour of the Complainant in respect of the flat on receiving the balance consideration price. So, the present complaint has been filed for directing the OPs to execute and register the deed of conveyance in respect of the flat as per the agreement for sale dt.31.1.2017 on receipt of balance consideration, to deliver the possession of the flat, to pay compensation of Rs.20,000/- and to pay litigation cost of Rs.10,000/-.

            Complainant has annexed with the complaint copy of the agreement for sale dt.31.1.2017, copy of the development agreement entered into between the OPs and the Complainant, copy of the General Power of Attorney, copy of the money receipts and copy of the building plan.

            OP No.1 has contested the case by filing the written version, denying and disputing the allegations contending inter alia specifically that it was agreed to sell the  residential flat to the Complainant on the ground floor of the premises at a fixed price of Rs.8,50,000/- of which Complainant has paid only Rs.1,00,000/-. Complainant himself delayed the process of registration of the residential flat in the  ground floor, citing paucity of finance and never paid the sum of Rs.7,50,000/-. OP has lodged a written complaint against the Complainant at Thakurpukur P.S. due to the assault upon him by the Complainant. It is further contended that the Complainant is bound to pay the full consideration money to get the possession of the flat and to execute the deed. Thus, OP has prayed for dismissal of the case.

            OP No.2 & 3 did not take any step on receipt of the notice and thus the case proceeded ex-parte against them.

            During the course of the trial, Complainant filed affidavit-in-chief but the OP No.1 submitted that he does not intend to file any questionnaire or any evidence and thus ultimately argument has been heard of both sides. They have also filed written notes of argument.

            So, the following points require to be determined:-

1. Whether there is any deficiency in service on the part of the OPs?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Both the points are taken up together for a comprehensive discussion.

            Complainant has claimed that he agreed to purchase a flat by an agreement dt.31.1.2017 in the 1^st floor at a consideration of Rs.8,50,000/- out of which, admittedly, he has paid only Rs.1,00,000/-. It is specifically contended by the OP that the agreement was entered into between the parties to sale a flat in the ground floor of the building. It appears from the copy of the agreement dt.31.1.2017 filed by the Complainant that even though in the schedule of the agreement the flat sold has been described to be in the 1^st floor, front side super built up area of more or less 575 sq.ft. But, in the body of the agreement there are  specific recital that the flat sold in the ground floor front side measuring more or less 575 sq.ft. The said recital is in the page 5 of the agreement, as well as page 6 in para 1. So, there is confusion and ambiguity with regard to the actual flat sold to the Complainant. Complainant in this case has prayed for directing the OP to handover the possession of the flat in the 1^st floor as per agreement for sale. But when the agreement is apparently ambiguous and not clear, no such direction can be made specially when according to the OP, the developer, that the agreement was to sell the flat in the ground floor.

            Apart from the above mentioned ambiguity, it is evident that as per the terms of the agreement, the Complainant was liable to make the payment of the consideration price as stated in the payment schedule and the possession was to be delivered within December, 2017. So, it is apparent that as per terms of the agreement the payment of the consideration has not been made by the Complainant and only Rs.1,00,000/- has been paid which was paid on the very date of execution of the agreement. So, the fault is more on the part of the Complainant. In view of the discussion as highlighted above, due to the confusion with regard to the flat in question, no relief as prayed by the Complainant can be allowed. However, since admittedly he has paid an amount of Rs.1,00,000/- he is entitled to get back the sum with litigation cost and same can be allowed on consideration of the prayer of the Complainant for any other relief deem fit and proper by the Forum. Complainant is also entitled to the interest on the said sum in the form of compensation.

            Hence

                              ordered

            CC/413/2018 is allowed in part on contest against OP No.1 and dismissed ex-parte against OP No.2 & 3. OP No.1 is directed to refund Rs.1,00,000/- to the Complainant along with interest on the said sum @9% from the date of payment to till this date and to pay litigation cost of Rs.10,000/- within two months from the date of this order, in default the entire sum shall carry interest @ 9% p.a. till realization.