Date of Filing: 24.08.2018
Date of Judgment: 15.07.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant, Mrs. Basabi Ghosh under section 12 of the C.P Act, 1986 against the Opposite party namely M/s Desire Agro Resorts Development Pvt. Ltd. (referred to as O.P), alleging deficiency in service on its part.
The case of the complainant in short is that complainant intended to purchase a shop room for her livelihood by way of self employment from the O.P in their project namely Suncity (Pailan). The total consideration price was fixed at Rs. 2,10,000/- . An agreement for sale was executed between the parties on 2.4.2004. Complainant paid a sum of Rs.75,500/- for the said shop room out of total consideration of Rs.2,10,000/- at the time of booking. But some times in the month of March, 2007 when the complainant approached the O.P for handing over possession of the shop room, he was told by the O.P that they were not in a position to complete the project as per agreement and to deliver the possession of the shop room as per agreement dated 2.4.2004 and undertook to refund the sum paid by the complainant along with interest. Complainant returned all the original money receipts but inspite of waiting for some time since the money was not refunded by the O.P, complainant sent a legal notice dated 26.6.2018 but as the O.P did not pay any heed ,the present complaint has been filed by the complainant for directing to the O.P to deliver possession of the shop room as per agreement or in alternative to refund Rs. 75,500/- paid by the complainant along with interest @18% p.a , to pay compensation of Rs.2 lac and litigation cost of Rs. 50,000/-.
On perusal of the record it appears that the O.P has contested the case by filing written version denying the payment of the amount by the complainant. It is contended that the complainant has to prove the same by documentary evidence. It is also contended by the O.P that complainant has claimed the amount paid by her differently at different times, as in the notice sent by the complainant she has claimed that she has paid entire amount of Rs.2,10,000/- whereas in the complaint she has claimed that she has paid Rs. 75,500/-. So, the O.P has prayed for dismissal of the case with cost.
During the course of the trial, both parties filed their respective evidence followed by filing questionnaire and reply thereto and ultimately argument of both sides have been heard.
So, the following points require determination:
- Whether there has been any deficiency in service on the part of the O.P?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
Both the points are taken up together for discussion for the sake of convenience and in order to avoid repetition.
In order to substantiate her claim that an agreement for sale was entered into between the parties , complainant has filed copy of the agreement dated 29.6.2007. Even though in the complaint, complainant has stated that date of agreement for sale was on 2.4.2004, but since O.P has also not disputed the execution of the agreement for sale between the parties in the written version, the mention of the said date being 2.4.2004 appears to be a bonaide mistake as the copy of relevant agreement of sale has already been filed.
It also appears from the copy of the said agreement for sale dated 29.6.2007 that a sum of Rs.75,500/- out of the total consideration price of Rs. 2,10,000/- has already been paid by the complainant at the time of booking of shop, has been categorically stated in the said agreement for sale. According to the terms of the agreement, the construction of the building was to be completed within 30 months from the date of payment of booking amount. Complainant has filed a letter dated 29.12.2010 sent by her to the Managing Director of the O.P company stating to refund the sum paid by her. It further appears from the said letter that the original agreement and the first deposit receipt and the acknowledgment slip in original, was enclosed with the said letter for necessary step and the action by the O.P company. There is also an acknowledgment appears to be by the O.P company regarding receipt of all the original papers. This letter and the acknowledgment therein have not been denied by the O.P in the written version or in the evidence during the trial. If that be so, then there remains no doubt that the agreement was entered into between the parties and a booking amount of Rs.75,500/- was paid by the complainant. It is no-where claimed by the O.P that the said project has been completed or that the subject shop room has been delivered. On the contrary it is the specific claim of the complainant that the said project of township has been left abandoned by the O.P and no development work towards the said project has been done by the O.P. If that be so, then the complainant is entitled to refund of the sum paid by her. Complainant has also prayed for directing the O.P to deliver possession but as the admitted case of the complainant herself is that the project has been let abandoned, then any direction in this regard will be ineffective and inoperative . So along with refund of sum, complainant is also entitled to the compensation on the said sum paid by her from 29.12.2010 i.e the date of claim for refund of the sum in the form of interest @8% p.a.
Hence,
ORDERED
That the CC/527/2018 is thus allowed on contest.
O.P is directed to refund sum of Rs. 75,500/- along with interest @8% p.a on the said sum from 29.12.2010 to till this date within 2 months from this date, in default the entire sum shall carry further interest @8% p.a till realization thereof.
O.P is also directed to pay litigation cost of Rs.10,000/- to the complainant within the aforesaid period of 2 months.
