Hon’ble Mr. Ajeya Matilal, Presiding Member
Ld. Counsel appearing for the Complainant is present.
OP is not present this too.
Today is fixed for final hearing of the complaint case.
The case do proceed ex parte against the OPs.
The complaint case is taken up for ex parte hearing.
Heard the submission of the Ld. Counsel for the Complainant.
This is a case under Section 17 of the Consumer Protection Act, 1986 valued at Rs. 42 lac. The fact of the case in short like that OP No. 1 is a partnership firm. OP Nos. 2 and 3 are the partners of that firm. OP Nos. 4 to 6 are the land owners. On 22.12.2015, a development agreement was executed and registered in the office of A.R.A- I, Kolkata and duly recorded in Book No. I, Volume No. 1901-2015, page from 192315 to 19269, being No. 190110007 for the year 2015. The OP Nos. 4 to 6 also authorised the OP Nos. 2 and 3 by executing a registered general power of attorney authorizing them to deal with the proposed building and also to enter into agreement with intending purchaser or purchasers. Photocopy of the development agreement dated 22.12.2015 and photocopy of the general power of attorney are annexed hereto and marked as Annexure—A (Page 18 to 67) and Annexure A (Page 68 to 95) respectively. OP Nos. 1 to 3 offered that they would sale one self-contained flat on the 1st floor, West/Northern Side in the proposed building measuring about 1200 square feet super built area, be the same a little more or less, to be constructed at premises No. 64, Taramoni Ghat Road, commonly known as 155/1 Taramoni Ghat Road, Kolkata—700041. The consideration price of the said flat was fixed at Rs. 32,00,000/- (Thirty Two Lac) only. Previously, one of the partners, OP No. 1, namely, Swapan Sarkar took Rs.6,00,000/- (Six Lakhs) from the Complainant through a cheque on 08.11.2014 and agreed to sell two number of flats. But, they did not comply with their obligation. They changed their mind and they promised to handover a new flat in a new project.
In pursuance of the negotiation and discussion between the OP Nos. 1 to 3, a fresh agreement for sale dated 17.06.2016 was entered into by and between the Complainant and the OP Nos. 1 to 3. And at the time of execution of the agreement the Complainant further paid a sum of Rs. 20,00,000/- (Twenty Lac) only.
The OPs promised to handover the possession of the said flat within 12 months. The total consideration money for the flat was Rs.32,00,000/- (Thirty Two Lac) only out of which Rs. 26,00,000/- (Twenty Six Lac) only was paid by the Complainant.
The OPs could not complete the construction within the stipulated period. So the Complainant gave a notice to the OPs either to immediately complete the construction or refund the money advanced. The notice is at running page no. 110 of the main prayer.
Our attention was drawn to the letter dated 31.08.2018 sent by the OPs to the Complainant wherefrom it appears that they were agreed to refund the advance amount at banking interest of 5 or 6 percent per annum on the amount after deducting the rent to his accommodation.
In a letter dated 10.12.2018 OPs intimated the Complainant that they have completed the construction work and would be in a position to handover the finished flat within a very short period. The OPs initially filed the written version but they did not contest the case further.
It appears from the document filed by the OPs that there was initially an intention to refund the entire amount and subsequently they gave an assurance that they would complete the construction within the stipulated period.
Heard the Ld. Counsel for the Complainant.
It appears from this aforesaid elaboration that the Complainant is a consumer and there is definite deficiency in service on the part of the OP Nos. 1, 2 and 3. So, the Complainant is entitled to get the relief.
Hence, it is,
O R D E R E D
That Complaint Case being no. 675/2018 is allowed ex parte against the OP Nos. 1, 2 and 3 with cost of Rs. 50,000/- (Fifty Thousand) only.
OP Nos. 1 to 3 are jointly and severally directed to execute and register a deed of conveyance in respect of the schedule flat in favour of the Complainant, Smt. Usha Mitra within three months from this day on payment of the balance consideration of Rs.6,00,000/- (Six Lac) and hand over a copy of completion certificate of the Corporation. Alternatively, the OP Nos. 1 to 3 are jointly and severally directed to refund the amount of Rs. 26,00,000/- (Twenty Six Lac) along with interest @ 6% p.a. from the dates of respective deposits to the Complainant, Smt. Usha Mitra, within the aforesaid date.
The Complainant is at liberty to put the Order into execution after expiry of the stipulated period, if not complied.
Let a copy of this order be made available to the parties free of costs.
