Hon’ble Mr. Ajeya Matilal, Presiding Member
The Ld. Advocate for the complainant is present. None appears for the OP.
The OP contested the case by filing W.V.
The complainant filed this complaint u/s 17 of the C.P Act, 1986 valued at Rs. 36,70,500/- in total.
The fact of the case is in short like that the OP is the developer / promoter and purported owner of the flat where a construction was proposed to be done in terms of the brochure of the OP under the name and style of IVY GREENS. An agreement for sale was entered on 10.09.2014. It was agreed upon that a residential unit being Unit No. D2, 2nd floor in Block IG – 03, in IVY GREENS at Mouza Bajetaraf, P.S Rajarhat P.O. Bagu, Dist- North 24 Pgs measuring about 990 sq. ft. super built up area with one covered car parking space. The agreement for sale was entered into between the parties and the same is enclosed with the complaint as annexure A. In terms of the agreement for sale the complainant paid Rs. 13,27,200/- by different cheques. It was agreed upon between the parties that the total consideration amount would be Rs. 31,70,500/- and it was also agreed upon between the parties that the OP shall complete the construction within 36 months from the effective date and deliver the possession of the flat. There was a grace period of 6 months. But the aforesaid construction could not be completed by the OP within the stipulated period. Furthermore, the OP did not make any construction thereon. Subsequently the complainant sent a legal notice to the OP on 21.08.2018 under speed post with A/d asking him to complete the constructor work and handover the possession of the same flat along with car parking space. There was an alternative prayer for refund of the entire consideration amount of Rs. 13,27,200/- along with an interest @ 18% p.a. But in spite of receiving the same the OP did not take any steps. So the complainant filed the instant case. The complainant also prayed for compensation of Rs. 5,00,000/-.
The OP contested the case by filing W.V. According to him, the delay in handing over the possession of the concerned unit was due to intervening force majeure and the events were beyond control of the OPs. Furthermore, the OP failed to do the needful because of shortage of funds and demonetisation.
The complainant filed evidence on affidavit. He was cross examined by the OP in the form of questionnaire and the complainant gave reply.
OP also filed evidence on affidavit. The complainant put questionnaire but the OP did not file any reply. So, the opportunity for filing reply by the OP was closed.
The points for consideration is that
- Whether the complainant is a consumer?
- Whether there is any cause of action?
- Whether there is any deficiency in service on the part of the OP?
- Whether the complainant is entitled to relief as prayed for?
Decision with reasons:
All the points are taken together for the sake of convenience. The agreement for sale is annexure A. It appears from the annexure C a money receipt issued by the OP that the complainant paid Rs. 13,27,200/- to the OP. Our attention was drawn to the legal notice served upon the OP which we have discussed earlier. In spite of receiving the said notice the OP did not comply with the terms of the notice so, it appears as the complainant paid part consideration amount, and he is a consumer and there is deficiency in service on the part of the OPs.
It appears from the record that the complainant filed this case within the period of limitation, so the complainant has cause of action to file this case. It will not be out of place to mention that the oral and documentary evidence adduced by the complainant was not shaken by the OP in the form of cross examination. All the points are decided accordingly in favour of the complainant.
So the case succeeds.
Hence it is ordered
The complaint case no. CC/884/2018 is allowed on contest against the OP with litigation cost of Rs. 10,000/-. The OP is directed to refund Rs. 13,27,200/- to the complainant along with interest @ 9% p.a. from 03.01.2019 i.e. date of filing of the complaint within 3 months from this day till the date of realisation of entire amount. No specific order regarding compensation is passed because the interest awarded in favour of the complainant is in lieu of compensation. The complainant is at liberty to put the award into execution after the stipulated period is over.
