Order No. 31 dt. 14/06/2017
The case of the complainant in brief is that the complainant entered into an agreement with the opposite party no-1 for purchasing a flat situated at Block No-6/2, 15 Jodhpur Colony, Kolkata 700045 within Lake P.S. The opposite party No-2&3 are the owners of the land in question and they executed a general power of attorney in favour of opposite party No-1 who happens to be the proprietor of M/S N.G . Enterprise -178, Jodhpur Garden, Kolkata-45.It was decided that the complainant will be provided a flat on the 2nd floor of the building to be constructed by the opposite party No-1.The complainant in order to have the flat paid an amount of Rs.5,76,000/- out of the consideration price of the flat of Rs. 8,00000. After the construction of the building the complainant noticed that the O.p-1 was trying to avoid the complainant. The complainant requested the opposite party No-1 to execute the deed of conveyance as well as the possession of the flat but the opposite party failed to pay any heed to the request of the complainant . The complainant finding no other alternative filed this case praying for execution the deed of sale as well as possession in respect of the flat in questioning as mentioned in the schedule of the complaint.
The opposite party No-1 contested the case by filing a written version denying all the material allegation of the complaint. The opposite party No-1 denied that he accepted any money from the complainant for providing a flat measuring 775 square feet. It was stated that the opposite party No-1 for the purpose of promoting business took loan from the complainant to the tune Rs, 5,00000/ and there was no question of providing flat to the complainant . On the basis of the said fact the opposite party No-1 prayed for dismissal of the case.
On the basis of the pleadings of the respective parties following points are to be decided;-
1) Whether the complainant entered into an agreement for purchasing a flat?
2) Whether the complainant paid the consideration for purchasing the flat?
3) Whether there was any deficiency in service on the part of the opposite party no -1?
4) Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons : -
All the points are taken up together for sake of brevity and for avoidance of repetition of facts.The ld advocate for the complainant argued that for purchasing the flat constructed by opposite party No-1 the complainant paid an advance amount of Rs.5,00000/- out of total consideration price of Rs of 8,00000.The complainant in order to proof the payment filed some documents.The ld advocate for the complainant emphasized that after the construction of the building by opposite party No-1 the complainant requested the o.p-1 to deliver possession of the flat as well as to execute the deed of conveyance but the opposite party No-1 avoided to pay any heed to the request of the complainant. Accordingly the complainant filed this case praying for the delivery of the possession of the flat as well as execution of the deed of conveyance.
The ld advocate for the opposite party argued that the complainant was approached by the opposite party No.1 to provide loan of Rs. 500000/- which was required by opposite party No-1 for running his promoting business. There was no question of any agreement for proving flat to the complainant. The amount taken by the opposite party No-1 for loan is being claimed by the complainant for part payment of the consideration price of the flat.
The complainant cannot file any agreement for sale for the purchasing the flat in question. Having regard to the said fact the ld advocate for opposite party prayed for dismissal of the case.
Considering the submission of the respective parties in order to proof that there was any talk of providing flat to the complainant and in order to establish the said fact the complainant ought to have filed the agreement for sale in respect of the flat as mentioned in the schedule to the complaint. Mere claim of entering into an agreement orally with the opposite party No-1 does not give any right to the complainant to claim the flat in question. The opposite party No. 1 agreed that the he received the amount of Rs.500000/- from the complainant in order to run his business which goes to show that money receipts filed by the complainant were genuine but there is no iota of evidence before this Forum so as to come to this conclusion that the opposite party no -1 agreed to provide flat to the complainant.
Accordingly we hold that there was no deficiency in service for the part of the opposite party No-1 but since he received the amount of Rs. 500000/- from the complainant, the complainant will be entitled to get the said amount from the opposite party No-1 and the opposite party No-1 must refund the amount with interest at the rate of 9% per annum from the date receipt of the said amount.
Thus all the points are disposed of accordingly.
Hence it is
ordered,
that the C.C Case No 663/2013 is allowed on contest and the opposite party No-1 is directed to refund the amount of Rs .500000/- (Rupees along with interest of 9% per annum from the month of March 2007 and also to pay compensation of Rs 30,000/ within one month from the receipt of the copy of the order failing which the complainant will be entitled to get interest at the rate of 10% per annum till the realization of the decretal amount .
Supply certified copy of this order to the parties free of cost.
