Dated : 05 July, 2022

Final Order / Judgement

MRS. MANJUSRI SARKAR CHOWDHURY, MEMBER

FACTS IN BRIEF

Briefly stated, the case of the complainant is that she had entered into a Memorandum of Understanding on 7^th July, 2017 with the OP No. 1 for purchasing a 2 BHK Flat having an area of 500 Sq. Ft. more or less on the 1^st Floor, Block No- 14, Flat No- B together with undivided impartible proportionate share of the land including all other common service areas etc. at a consideration of Rs.13,50,000/-. Complainant paid Rs.2,16,000/-  by way of a cheque which was duly acknowledged by the OPs. The said flat was to be handed over within 48 months from the date of execution of the said Memorandum of Understanding. It is alleged that the balance amount of consideration would be paid before the flat is handed over to the complainant within the stipulated period. Complainant alleged that no construction of the said project was started. Complainant requested the OPs for completion of the construction but as it was not done she asked for refund of the price which she had advanced. Though, OP promised to refund the money but they failed to do so. Complainant by filing this complaint claimed several relief (s) including the execution of the deed of conveyance by the OPs of payment of the balance consideration price and compensation etc. Despite receipt of summons, the OPs did not appear and contest this case. So, the case was heard ex parte.

               Complainant filed evidence-on-affidavit and also several documents namely, the Memorandum of Understanding dated 07/07/2017 and money receipt showing payment of advance.

DECISION WITH REASONS:

We have considered the petition of complaint, evidence-on-affidavit and also the documents as mentioned aforesaid. The Memorandum of Understanding dated 07/07/2017 amply reveals the execution of said agreement between the parties whereby the complainant agreed to pay the flat, in question, at a consideration price of Rs.13,50,000/- to be constructed by the OPs. The money receipts shows that Rs.2,16,000/-  was paid by the complainant on 09/09/2016. As per agreement, the said flat was to be handed over within 48 months from the date of the said Memorandum of Understanding but the OPs failed to comply with the terms of the said agreement. From the documents we also find one application for refund of money addressed to the OPs by the complainant but the said document does not contain any date. From the complaint itself we also find that complainant is a resident within the jurisdiction of this Commission. Though the property, in question, is situated elsewhere considering the unchallenged testimony of the complainant and also the documents we find that complainant has been able to prove her case.

            However, we find the complainant made a prayer for completion of the project and hand over the flat, in question, to the complainant by execution of a deed of conveyance on receiving the balance amount of consideration price by the OPs. Though complainant did not pray for refund of the money instead of the flat however, during argument Ld. Advocate appearing for the complainant leaves the matter with the Commission for consideration of the refund of the money along with interest instead of handing over the flat. Here, we find complainant produced on photograph of the said housing complex which is being built by the OPs and the said photograph reveals the construction is far far away from being completed and the entire area has become full of bushes. In such a situation, an order for handing over the flat by execution of the document by the OP seems to be impractical. Rather an order by refund of the money would be justified here in this case. This apart, complainant is also entitled to compensation either in the form of interest or otherwise and also cost of litigation. 

Accordingly,                 it is

                                                            ORDERED

That the instant case be and the same is allowed ex parte against the OPs. Complainant is entitled to get refund of Rs.2,16,000/- (Two Lakh Sixteen Thousand Rupees Only) with interest @ 10 % from the OPs from the date of payment until actual payment. Complainant is also entitled to Rs.5,000/- (Rupees Five Thousand Only) towards cost of litigation.

            OPs are directed to pay the aforesaid amount including cost of litigation to the complainant within 45 days on the date of this order failing which, the complainant shall be at liberty to realize the same in accordance with law. The OPs are jointly and severally liable to make the aforesaid payment.