Date of Filing :  07/12/2021

Date of Judgement :  03/11/2023

Sri Sudip Niyogi, Hon’ble President

                                                                  Brief Facts

The complaint case in brief is that on 28/5/2017, complainant No. 1 entered into an Agreement for Sale with OP 1 to buy one 664 sq.ft. more or less residential flat at Siddhivinayak Apartment in the proposed building at Mouza : Sapraipur, J.L. No. 12, R.S. No. 353, Pargana : Baliya corresponding to R.S. Dag No. 359 L.R. Dag No. 436 Maheshtala Municipality under P.S. Maheshtala, the description of which is given in paragraph 1 of the petition of complaint at a consideration of Rs.14,50,000/-. 

Complainant paid Rs.6,77,000/- as advance towards consideration by way of cash and cheque, upon signing of the said agreement and the balance amount was agreed to be paid at the time of taking over of the possession and execution of the deed of conveyance.  The flat was agreed to be delivered by 31/4/2018.  Though nearly 50% of the consideration was paid, the complainant found, on visiting the locale, that the construction was at a very nascent stage and the OP failed to give any reason for such delay in execution of the project.  So, complainant demanded refund of the money, which was not complied with by OP 1.  So, he prayed for relief in the form of execution and registration of a deed of conveyance in respect of the said flat, compensation, cost of litigation etc. or alternatively an order for refund of the amount paid as advance alongwith interest.

OP 3, 4 & 5 who claimed to be the landowners, filed written version stating that they have no connection with any agreement between the complainant and the vendor.  So, they prayed for dismissal of the complaint against them.

OP 1 & 2 did not appear to contest the case.  Complainant filed evidence and the document namely - a copy of the agreement for sale of the flat and copies of several letters.

Therefore, the point of consideration is, whether the complainant is entitled to any relief(s) in this case?

                                                                      Findings

The copy of the agreement for sale which is found to be undated, reveals that the said paper was signed by complainant No. 1 and Sunita Ghosh being the proprietor of Siddhivinayak Construction (OP 1) and Gopal Ghosh i.e. OP 2 as witness.  The said agreement also reveals payment of Rs.6,77,000/- towards consideration of the flat.  It also reveals that it would be valid upto 31/4/2018.  It is further found that complainant produced one copy of the letter issued on behalf of OP 1 through their Advocate informing complainant No. 1 that they are willing to hand over the possession of the flat as early as possible and requested complainant No. 1 to do and execute necessary action to get possession of the said flat with immediate effect.  We further find, on behalf of complainant No. 1, several letters were issued through his Advocate to OP 1 demanding refund of the money advanced by them.  Surprisingly, it is also found that in the said letters it is said that amount of Rs.6,77,000/- was paid for booking a four-wheeler on his behalf, but no document in this regard was filed by the complainant nor the vendor OP 1 appeared to contest this case.  But the fact remains, what we find, that the agreement is there and advance was also made.  But, as the flat was not made ready, complainant filed this case praying for alternative prayers.  As already stated, OP 1 did not appear and challenge the contention of the complainant as made in his petition of complaint and evidence.

Taking into consideration all these and also the prayers as made by the complainant, we think an order for refund of the money paid by him alongwith interest from 12.09.2018 (the date on which the complainant claimed refund from OP 1) should be made in favour of the complainant No. 1.  This apart, OP 1 is also to pay Rs.5,000/- for cost of litigation. 

Complainant No. 2 is said to be the son of complainant No. 1 who was not a party to the agreement for sale.  OPs 3, 4 & 5 are the landowners and against whom the instant case is liable to be dismissed.

Accordingly, it is

                                                             ORDERED

That the instant complaint is allowed exparte against OP 1 and dismissed on contest against OP 3, 4 & 5 and also dismissed against OP 2.

OP 1 is directed to refund the amount of Rs.6,77,000/- alongwith interest @9% from 12.09.2018 until realization.

OP 2 is also directed to pay Rs.5,000/- to the complainant for cost of litigation.

OP 1 is directed to comply with this order within 60 days  from the date of this order, failing which, the complainant shall be at liberty to proceed with accordance of law.

Dictated and corrected by me

President