Hon’ble Mr. Ajeya Matilal, Presiding Member
Ld. Advocate for complainant is present. Today is fixed for ex parte hearing of the case. This case is valued at Rs. 48,000/-.
The fact of the case is in short like that the complainants are husband and wife. The OP no. 1 is a Real Estate Company registered under Companies’ Act 1986 having its office at Kasba. The OP no. 2 is a whole time Director of the OP no. 1 company. As per resolution taken by OP no. 1 /company the OP no. 2 Amitava Samanta shall be called as the developer and confirming party. Seeing an advertisement of a project namely ‘Sobuj Potro’ they approached to the OP no. 2 for purchasing a two storied bungalow namely Korobi, Unit no. 76 at measuring about 2897 sq. ft. and covered area of 1995 sq. ft. for total consideration of Rs. 35,00,000/-. The description of the bungalow was given in the schedule of the complaint. It was agreed upon between the parties that the total consideration of Rs. 25,00,000/- excluding Rs. 10,00,000/- for beautification of the building. The copy of agreement is annexed as annexure A found in running page 11 of the complaint. The agreement was executed between the parties on 22.07.2013 and it was agreed upon between the parties that the complainants would pay consideration amount within November, 2014. The complainant paid Rs. 32,00,000/-. It would appear from the schedule annexed with the complaint that the complainant paid Rs. 1,00,000/- on 22.07.2013, Rs. 9,00,000/- on 31.07.2013, Rs. 10,00,000/- on 07.08.2013, Rs. 3,00,000/- on 27.11.2013, Rs. 3,00,000/- on 26.02.2014, Rs. 3,00,000/- on 09.06.2014 and Rs. 3,00,000/- on 29.08.2014. In the aforesaid manner the complainant paid Rs. 32,00,000/-. Payment schedule is enclosed as annexure B of the complaint running page no. from 30 to 36. As per page 10 of agreement in para 7, the owner (vendors) developer confirming party agreed to deliver the possession of the said plot of land with bungalow after duly constructing and completing the same as per specification mentioned therein within December, 2014 from the date of booking and /or from the date of signing whichever is later. As per para 17 appearing in page no. 13 of the agreement the purchaser/ 3rd party shall not be entitled to cancel or revoke the agreement for sale within 2 years from the date of signing i.e. on 22.07.2013. It was also agreed upon between the parties that on the date of execution of deed of conveyance and registration the claimants shall pay the balance consideration amount. The complainants made a series of communication from May, 2015 till May, 2019 asking the OPs for handing over the possession, execution of sale deed and registration of the same. But on each occasions the OPs prayed for time. But in spite of that the OPs did not do the needful. The complainants made last payment on 29.08.2014 i.e. within the stipulated period of the agreement for sale. So the complainants filed the instant complaint on 11.11.2019 with a prayer for refund of money along with compensation and legal expenses.
According to the complainants the cause of action started on 22.07.2013 i.e. the date of signing of agreement and it continued till 27.05.2019 i.e. the last date of correspondence between the parties. All these communications between the parties were sent through emails. Copies were enclosed with the complaint as annexure C.
In spite of service of notice upon the OPs they did not appear, so the case proceeded ex parte against them. In support of his case the complainants examined themselves by way of evidence on affidavit.
Perused the evidence on record. It would appear from para no. 9 of evidence that during pendency of the case the OPs paid Rs. 4,00,000/- to the complainants through HDFC Bank Ltd. Hazra Road branch by NEFT dt. 22.07.2021 and through RTG on 07.08.2021. That transaction has been reflected in annexure D of the evidence on affidavit. So, it appears that after making such payment Rs. 28,00,000/- is still due from the OPs.
We have already discussed about the agreement for sale money receipts and correspondence which were enclosed with the complaint.
In view of aforesaid discussion it goes without saying that the complainants are the consumers and as the OPs did not perform their contractual obligations there is deficiency in service on their part by means of unfair trade practice. On perusal of the oral and documentary evidence, we are of the view that there is nothing to disbelieve their unchallenged evidence. So, the case succeeds.
Hence it is ordered
The complaint case is allowed ex parte against the Opposite Parties with litigation cost of Rs. 40,000/-. The Opposite Parties are directed to refund Rs. 28,00,000/- to the complainants with an interest @ 12% p.a. from the date of each payment till the date of realisation within 60 days from the date of this order, failing which, the complainants will be at liberty to put the order into execution.
