FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The factual matrix of the case, is that, the Complainant has entered into an Agreement for Sale dated 21/08/2015 with the OPs for purchasing a flat measuring about 642 sq.ft on the 3^rd  floor being no. E at Mouza  Tarapukuria, JL No. 12 , Touzi No. 178, Khatian No. 208/1, Holding No. 26/C, South Station Road , within Panihati Municipality, P.S. – Khardah, District – North 24 Parganas by paying Rs.3,00,000/- as booking money through post dated cheque vide no. 024436 dated 24/09/2015 drawn on Allahabad Bank , Rs.50,000/-  vide cheque no. 103169 dated 23/09/2015 drawn on Axis Bank , Rs.1,00,000/- vide cheque no. 508242 dated 24/09/2015 and Rs.50,000/- vide cheque no. 508243 dated 29/09/2015 out of total consideration amount Rs.10,27,000/- . The money receipts dated 24/09/2015 was printed in respect of different project, namely Trishul Apartment for which the Complainant raised objection but the OP2 assured that said different project was also of the OP3. As per the said Agreement OPs are bound to deliver the said  finished  flat within 24 months from the date of signing the Agreement or sanction of the building plan by local Municipality.  But till date no such delivery has been made by the OPs 1 & 2. Complainants asked the OPs several times to hand over the sanction plan but the OPs failed to deliver the sanction plan and possession of the said flat. After waiting for a long time the Complainant made a representation dated 20.04.2021 to the OPs 1 & 2 stating to provide floor plan of the said flat and to execute registered Sale Deed in respect of the said flat within 30 days from date of receiving the same and also undertake to supply a copy of Demand Draft of Rs.5,27,000/-   as balance consideration. Despite receiving the aforesaid letter OPs did not turn up. Finding no other alternative Complainants preferred to file this case praying relief/reliefs.

OPs 1 & 2 contested the case by filing W.V. contending inter alia that the instant complaint is baseless, suppression of facts, false, barred by limitation and hit by mis-joinder and non-joinder of necessary parties. The case of the OPs 1 & 2 is that an Agreement was made containing certain Clauses which are very much agreed by the Parties. After signing the said agreement due to high cost of new materials the cost of the project was increased and subsequently that was informed to the Complainant. Moreover payments made by the Complainants are for different commercial transactions between the parties but not for the Agreement. Money receipts produced before this Commission were false and fake. No such Money Receipts was issued by the OPs 1 & 2. Original Money receipts be produced before this Commission for sending them to the Forensic Department for confirmation of signature and also to check the reliability of the Money Receipts. After execution of the said Agreement no payment was made. As such, the Complaint Petition is liable to be dismissed.

Upon service of notice OP3 did not appear before the Commission to defend themselves and no WV is filed on behalf of them within stipulated period. Thus the case has proceeded ex parte against them.

Complainant has tendered evidence supported by affidavit. Per contra OPs 1 & 2did not adduce any document on record. We have gone thoroughly evidence adduced by the parties including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.

Evidently the Complainants booked a flat measuring about 642 sq.ft bearing No. E on the 3^rdFloor of the Mouza  Tarapukuria, JL No. 12 , Touzi No. 178, Khatian No. 208/1, Holding No. 26/C, South Station Road , within Panihati Municipality, P.S. – Khardah, District – North 24 Parganas by paying Rs.5,00,000/- as Booking Amountout of total consideration amount of Rs.10,27.000/-  to the OPs. Photocopy of the MEMORANDUM OF CONSIDERATION issued by the OPs 1 & 2 in respect of Booking Amount and photocopy of the Bank Statements of Allahabad Bank and Axis Bank support the averments made in the Complaint Petition. Ld. Advocate for the Complainant alleged that despite several efforts of the Complainants OPs 1 & 2 neglected to hand over the possession and register the said flat. Therefore the Complainant has sent a letter dated 20.04.2021with abovementioned prayer to the OPs 1 & 2 expressing his willingness to pay the remaining amount.

Documents on record annexed by the Complainants showing that OPs 1 & 2 issued a Money Receipt of Rs.5,00,000/- in the name of the Complainant under SRISHTI . Ld. Advocate for the OPs 1 & 2 alleged that said Money Receipt furnished by the Complainant is fabricated one and they will submit the Original Money Receipt for Forensic Test. But no such material document has been placed on record by the OPs 1 & 2 which can prove that said fraud has been committed on the part of the Complainant. Therefore, this submission of the OPs has no leg to stand.

Ld. Advocate for the OPs 1 & 2 argued that, as an evidence of payment towards the Consideration Amount of the said flat the Complainant has relied upon the Money Receipt issued by the OPs 1& 2 and Statement of Account is adduced by the Complainants in this regard, those are paid for different Commercial Transaction. We have perused the documents on record and found that as per MEMORANDUM OF CONSIDERATION the Complainants paid the abovementioned amount in respect of the suit property. Moreover, it is noted by us that as per Agreement for Sale:

In case the Developer failed to deliver the possession of the flat in question from the date of obtaining sanctioned Building Plan the Developer shall be liable to pay interest @ 18% per month to the purchaser after expiry of 6(six) months in addition to 24(twenty four) months.

In the present case the flat in question was to deliver to the Complainants by the OPs within 24 months from the date of obtaining sanctioned Building Plan. On 20/04/2021 the Complainant wrote a letter to the OPs expressing his willingness to complete the final registration and to take the possession of the flat by paying the remaining amount of Rs.5,27,000/-. Ld. Advocate for the OPs submitted that after signing the said Agreement price of the Building Materials was increased and the same is intimated to the Complainant. We have  observed that not a single scrap of paper placed on records wherefrom it can establish that OPs 1 & 2 knocked the Complainants in this regard subject to payment of extra amount or they have sent any reminder to the Complainants intimating the price hike of building materials as alleged by OPs 1 & 2. In this connection we may refer the letter dated 20/04/2021 sent by the Complainant to the OPs. As such, failing to deliver the possession of the flat in question within stipulated period OPs are deficient in rendering service.

In the result, the Consumer Complaint is allowed on contest in part against the OPs 1& 2 and on ex parte against the OPs 3 with a following direction:

1. OPs are jointly severally directed to refund the deposited amount of Rs.5,00,000/- with interest @6% p.a. to the Complainants from the respective dates of payment..

2. OPs are also directed to pay an amount of Rs.10,000 to the Complainant as litigation cost and an amount of Rs.25,000/- as compensation for harassment and mental agony.

3. The abovementioned payment should be made within 45 days from the date of this order failing which the deposited amount shall attract the interest @12% from the date of this order.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.

Copy of the Judgment be given to the parties as per rules