Date of Filing : 05/04/2018

Date of Judgement : 01/11/2023

Sri Sudip Niyogi, Hon’ble President

                                                              Brief Facts

In brief, the complaint case is that the complainant had entered into an agreement for sale with OP 1, 2, & 3, 4 on 19/3/2009 in order to buy a flat measuring 850sq.ft. as mentioned in the 2^nd schedule to the petition of complaint at a consideration of Rs.6,80,000/-.  OP 3 & 4 are the landowners who had engaged OP 2, the proprietor of OP 1, M/s. G.P. Construction to raise a multi-storied building on their land.  The said developer had agreed to sell the `B’ schedule flat out of the developer’s allocation.  Complainant paid Rs.4,00,000/-.  Thereafter, complainant, on repeated occasions requested OP 1 to 4 to complete the construction of the building and handover the vacant possession of his flat and also to execute and register a deed of conveyance in respect of that flat on receiving the balance consideration price.  But the said OPs did not comply with his request.   Alleging unfair trade practice against the said OPs, complainant filed the instant complaint before this commission praying for delivery of the 2^nd schedule flat and also executing and registering a deed of conveyance in favour of the complainant in accordance with the said agreement for sale, compensation and cost of litigation, etc.

OP 1, 2 & 4 filed their written version praying for dismissal of the instant complaint.  In his written version, OP 4 claimed that, after the development agreement was made with OP 1 & 2 as the Developer did not raise the construction, they cancelled the development agreement and power of attorney.  OP 4 & 5 are found to be the subsequent developers, but the instant case was heard exparte against them.  OP 3, during subsequent stages, expired and on the prayer of the complainant his name was expunged vide order No. 43 dt. 18/9/2023.  Both the parties filed evidence.  Complainant also filed their evidence and documents. 

Now, the point for consideration is whether the complainant is entitled to any relief(s) in the instant case?

                                                               Findings

On consideration of the materials on record, it is found that complainant had entered into an agreement with OP 1 to 4 on 19/3/2009 for purchasing the 2^nd schedule flat at a consideration of Rs.6,80,000/- and he advanced Rs.4,00,000/- by paying on different dates towards consideration.  It is admitted by the developer i.e. OP 1 & 2 in their evidence about the said contention of the complainant, including the payment of Rs.4,00,000/- towards that flat.  However, according to him, the complainant subsequently did not pay the balance consideration and also requested for cancellation of the said agreement as he was suffering from financial crisis.  Apart from this, the said OPs claimed that, after cancellation of the said agreement, complainant took refund of Rs.25,000/- on 13/12/2013.  In fact, in the written argument, complainant admitted to have accepted refund of Rs.25,000/- from OP 1 & 2.  During argument, complainant prayed for refund of the balance amount of consideration he had paid.  As it is admitted, that complainant had advanced Rs.4,00,000/- to OP 1 & 2, out of which Rs.25,000/- was refunded to the complainant by the said OP 2, the complainant is entitled to refund of the remaining amount from OP 1 & 2.  Therefore, the instant complaint deserves to be allowed.  Apart from this, complainant is also entitled to interest of the said amount and also Rs.8,000/- for cost of litigation.  Be it noted here that, the instant complaint is liable to be dismissed against OP 4 to 6.

Accordingly, it is

                                                      ORDERED

That the instant case stands allowed on contest against OP 1 & 2 and dismissed against OP 4 and exparte against OP 5 & 6.

OP 1 & 2 are directed to refund Rs.3,75,000/-, being the balance amount of consideration paid by the complainant alongwith interest @9% per annum, to the complainant from the date of last payment i.e. 12/4/2009.

The said OPs are also to pay Rs.8,000/- to the complainant as cost of litigation.

The said OP 1 & 2 are directed to comply with this order within 60 days from the date of this order, failing which, the complainant shall be at liberty to proceed with accordance of law.

 Dictated and corrected by me

President