FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.35 of the Consumer Protection Act, 2019.

The case of the complainant is that he had entered into an agreement dated 16.09.2012 with the OP for accommodation of two self contained flats measuring about 165 sq. ft. each on the 2^nd floor of Premises No. 6/2, Meher Ali Lane, Kolkata 700015 at a total consideration of Rs. 4,62,000/-. Complainant paid

Rs. 2,00,000/- out of total consideration. That the possession of the flats would be handed over to the complainant within 18 months from the date of execution of the agreement dated 16.09.2012. OP has failed to meet the commitment and also sold the booked flats to other persons. OP undertake to refund the advance consideration amount of Rs. 2,00,000/- along with compensation of Rs. 50,000/- to the complainant in two installments vide letter dated 02.01.2014. OP paid 1^st installment of Rs. 1,00,000/- but failed to pay 2^nd installment of Rs. 1,50,000/-. Legal notice dated 08.09.2020 was duly sent to the OP but no consequence. Finding no other way out, the complainant filed the present consumer complaint.

Despite service of notice neither any one appeared on behalf of the OP/Developer nor any written version is filed on his behalf. Accordingly, vide order dated 27.01.2021 the case is proceeded ex-parte against the OP and his right to file written version is forfeited. He even did not choose to file any application to set aside the ex-parte order.

Complainant Shamsuddin has filed his evidence by way of affidavit supporting the allegations made in the complaint.

Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of the photocopy of the agreement dated 16.09.2012 executed between the complainant and OP, it is clear that vide said agreement OP agreed to sale two flats measuring about 165 sq. ft. each on the 2^nd floor of Premises No.6/2, Meher Ali Lane, Kolkata-700015 at a total consideration of Rs. 4,62,000/- to the complainant. It is also clear from clause -10 of the said agreement that the OP has agreed to deliver possession of the booked flats to the complainant within 18 months from the date of execution of the agreement. Complainant has categorically alleged in the complaint as well as evidence that he has paid Rs.2,00,000/- out of total consideration amount to the OP. Despite expiry of the said period possession of the booked flats are not handed over to the complainant. Complainant has clearly stated that the OP sold the booked flats to other persons. We draw our attention to the letter dated 02.01.2014 written by OP that he undertake to refund the consideration amount of Rs. 2,00,000/- along with compensation of Rs. 50,000/- to the complainant within two installments. It is also true that OP paid Rs. 1,00,000/- to the complainant out of Rs. 2,50,000/- but did not refund the balance consideration amount and compensation. A legal notice dated 08.09.2020 was duly sent to the OP but of no consequence. The OP/Developer has failed to keep his promises of timely delivery of possession of the booked flats and/or refund the balance consideration amount along with compensation.

Despite the notice being served on the OP as well as on the application filed u/s 35 of the Consumer Protection Act, 2019, for the reasons best known to him, the OP neither put appearance nor filed Written Version in support of his defense. Hence, the facts averred in the complaint remain un-rebutted. Under these circumstances, the question regarding reasons for refund of balance consideration amount, compensation and why the OP/Developer not in a position to handover possession of the booked flats also remain unanswered.

In the case of Emmar MGF Land Ltd. & Ors  –Vs- Amit Puri reported in II (2015) CPJ 568 (NC) the Hon’ble NCDRC has held that after the promised date of delivery, it is the direction of the complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of principal amount with interest and compensation.

Complainant has accepted the undertaking dated 02.01.2014 of the OP and received a part of settlement amount. Thus, complainant cannot be entitled for possession of the booked flats. Moreover, it is the case of the complainant that OP sold the booked flats to other persons. Therefore, complainant is entitled for refund of the principal amount with interest.

Considering all the facts and circumstances of the case, it is directed that the OP shall pay a sum of Rs.1,50,000/- (Rs.1,00,000/- as principal & Rs.50,000/- as compensation) to the complainant within 60 days from today along with simple interest on the balance principal amount of Rs.1,00,000/-  at the rate of 5 percent per annum from the respective dates of payments till realization together with litigation cost of Rs.5,000/-.

With these directions consumer complaint stands disposed of.

Copy of the judgment be supplied to the parties as per rules.