Sri Swapan Kumar Mahanty, President.
This is an application u/s.12 of the C.P. Act, 1986.
Briefly put the facts material to the case are that the OP1 is a promoter who had entered into a development agreement with the OP2 Land Owner of premises No.38Q Bediadanga 2nd Lane, P.S. Kasba, Kolkata – 700 039 for construction of a 4-storied building. Complainant entered into an agreement for sale dated 15-06-2016 with the OP1 for purchase of a self-contained flat measuring about 840 sq. ft. super built up area consisting of two bed room, one dining, one kitchen, one bath cum privy and one balcony on the proposed building at a total consideration of Rs.10,50,000/-. Complainant had already paid Rs.7,50,000/- out of total consideration to the OP1 against receipt. In terms of the agreement for sale the OP1 supposed to handover the subject flat to the complainant within 18 months from the date of execution of the agreement for sale dated 15-06-2016. The OP1 did not hand over the possession of the subject flat within the stipulated period though the complainant was ready and willing to pay the balance consideration amount. There is a specific clause in the agreement for sale that if the developer cannot deliver the possession of the subject flat to the purchaser within 18 months from the date of signing of the agreement for sale in that event the developer will refund the advance amount with interest at the rate of20 percent p.a. The OP1 failed and neglected to handover the subject flat with completion certificate to the complainant within the specified time and assured to handover the possession of the subject flat within a short span but OP1 failed to do so. Finding no other alternative, the complainant sent legal notice dated 04-05-2018 to OP1 through his Advocate and such notice was unattended. The OP1 deliberately by adopting unfair trade practice and also trying to deprive the complainant from his lawful right and claims in terms of the agreement for sale dated 15-06-2016. Hence, the complaint.
The OP1 appeared in the case by filing vakalatnama but ultimately failed to file W.V. within the statutory period of 45 days. As such, the case has proceeded ex parte against OP1.
In spite of service of notice OP2/Landowner did not turn up to contest the case. Accordingly, the case has proceeded ex parte against the OP2.
Points for Determination
- Are the OPs deficient in rendering service to the complainant?
- Are the OPs indulged in unfair trade practice?
- Is the complainant entitled to get any relief or reliefs as prayed for?
Decision with Reasons
Points No.1 to 3 :
All the points are taken up together for the convenience of brevity and discussion.
To establish his case complainant has produced photocopies of Agreement for Sale dated 15-06-2016, Development Agreement, Legal Notice dated 04-05-2018, Postal Registration Receipt and Track Report of India Post showing delivery of legal notice.
On perusal of the development agreement it appears to us that the OP2 Smt. Kalpana Mondal is the owner of 38Q Bediadanga, 2nd Lane, Kolkata – 700 039 and she had entered into a development agreement with the OP1 for construction of a four storied building in the said premises. The OP1 had entered into an agreement for sale dated 15-06-2016 with the complainant for sale of a self-contained flat measuring about 840 sq. ft. super built up area consisting of 2-BHK, one dining, one kitchen, two bath cum privy and one balcony at a total consideration of Rs.10,50,000/-. The complainant had paid Rs.7,50,000/- to the OP1 on 26-06-2015 vide cheque No.638689 of Rs.4,00,000/- drawn ICICI Bank, Ballygunge Branch and Rs.3,50,000/- paid on 24-06-2016 by cash. The physical possession of the subject flat has not yet been given to the complainant though the complainant was ready to pay the balance consideration amount. The complainant was compelled to issue legal notice to the OP1 with a request to hand over the subject flat within 7 days and/or to refund the earnest money with 20 percent interest p.a. from the date of receipt of notice but such notice was unattended. Had the OP1 been seriously interested to fulfill the terms and conditions of the agreement for sale, it would not be for the complainant to take shelter of the Forum by taking travel since coming to the Forum is not a fashionable game for an individual rather everyone tries to avoid legal complications by coming to a court of law taking all hazards unless they are otherwise compelled to come to the Forum.
Complainant corroborates his case by adducing evidence on affidavit as well as by producing documents. The evidence of the complainant remained unchallenged and uncontroverter. In absence of any contrary and controverting material on record and having regard to the documents on record, we are of the opinion that the OP1 indulged in unfair trade practice and also caused harassment, mental pain and agony to the complainant. As such, the complainant is entitled to get relief as prayed for. Thus, all the points under determination are answered in affirmative.
In the result, the case succeeds.
Hence,
Ordered
That the complaint case be and the same is allowed ex parte against the OP1 with litigation cost of Rs.5,000/- (Rupees Five thousand) only and dismissed ex parte against OP2 but without any cost.
OP1 is directed to handover the subject flat as per agreement for sale dated 15-06-2016 to the complainant within 30 days from the date of this order in default OP1 shall have to refund Rs.7,50,000/- (Rupees Seven lakh fifty thousand) only(received as consideration money from the complainant) and also pay compensation of Rs.50,000/- to the complainant by way of interest for not handover the subject flat to the complainant within the stipulated period in terms of agreement for sale dated 15-06-2016.
The OP1 is further directed to deposit Rs.5,000/- (Rupees Five thousand) only to this Forum as punitive damage for practicing unfair trade within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP1 transgresses to comply the order.
Order No. 10 Dated : 27.03.2019
Record is put up on the prayer of the complainant.
Complainant files an application supported by an affidavit praying for amend of the final order dated 15.01.2019 passed in this case on the ground stated therein.
Heard the Ld. Advocate for the complainant, who submits that the complainant has filed the instant Consumer Complaint against the OPs who are Developer as well as land owner. He further submits that the case was allowed ex parte against the OP-1 (Developer) and dismissed ex parte against the OP-2 (Land owner). According to him, the complainant has prayed for registration of the subject flat and without the OP-2 it is not possible to execute and register the deed of conveyance. Hence, the Ld. Advocate for the complainant prays for rectification / correction and amendment of the final order dated 15.01.2019.
Heard the Ld. Advocate for the complainant. Perused the impugned prayer coupled with the final order dated 15.01.2019 passed in this case. On perusal of the evidence and documents on record, this Forum passed the final order dated 15.01.2019. We do not find that there is any typographical or clerical mistake in the final order dated 15.01.2019. There is no scope to this Forum to amend the final order passed in this case. Therefore, we are not inclined to allow the prayer of the complainant for amendment of the final order dated 15.01.2019 passed in this case. If the complainant aggrieved against the final order dated 15.01.2019 he may prefer an appeal before the Hon’ble SCDRC.
Thus, the application dated 27.03.2019 is rejected.
