Judgment : Dt.12.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Shisir Khan, s/o Beehulal Khan of Ghosh & Khanpara, Daulatabad, Bishnupur, Dist.- South 24-Parganas against (1) Smt. Eti Mondal, w/o Sri Pratap Mondal, 46, Dhalipara, Purba Putiary, Kolkata-700 093, OP No.1 and (2) Sri Rathin Mondal, s/o Late Sudas Chandra Mondal of Chakdah Purba Putiary, Gurucharan Naskar Road, P.S.-Regent Park, Kolkata-700 093, OP No.2 praying for a direction upon the O.P. 1 and 2 to register the deed of conveyance of flat No.GA, situated in the southern portion of the ground floor in favour of the Complainant and a direction upon the OP to complete the construction of the said flat in all respect and a direction to hand over copy of completion certificate of the premises and a direction to pay compensation of Rs.2,00,000/- and also a direction to pay litigation cost.
Facts in brief are that Complainant entered into an agreement for sale on 3.12.2012 with the OP to purchase flat No.GA measuring about 500 sq.ft. situated in the ground floor, southern portion of the municipal premises No.144, Chakdah Govt. Colony under Regent Park P.S. at a consideration of Rs.9,75,000/-. OP No.2 is the owner of the plot of land. Complainant paid Rs.7,50,000/- out of Rs.9,75,000/- as per the terms and conditions of the agreement. The possession of the flat was to be handed over within 17 months from the date of agreement. But, even after several reminders OPs did not hand over the possession. So, Complainant filed this case.
OP No.1 filed written version and denied the material allegations of the complaint. Further, OP No.1 has stated that during construction he received a notice alleging encroachment of 160 ft. area and due to such reasons completion certificate was not issued. The flat in question is required to be measured. Due to the notice the construction stopped. The handing over of completion certificate was delayed. So, in such situation OP No.1 has prayed for dismissal of the complaint.
OP No.2 did not contest the case by filing written version and so the case is heard ex-parte against it.
Decision with reasons
Complainant filed affidavit-in-chief against which OP filed questionnaire to which Complainant filed affidavit-in-reply. Thereafter, OP filed evidence to which Complainant filed questionnaire and the OP filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon the OPs No.1 & 2 to register the deed of conveyance of flat No.GA situated in the southern portion of the ground floor and also for completion certificate. In this regard, one Xerox copy of the sale agreement is filed. On perusal of this sale agreement, it appears that on 3rd December, 2012 the agreement was entered between Complainant and OP No.1. Further, it appears that the flat No.GA on the ground floor having super built up area of 500 sq.ft. was to be sold to the Complainant after completion at a consideration of Rs.9,75,000/-. It also appears that the Xerox copy of the money receipts have been filed which reveal that OP No.1 received Rs.7,50,000/- on different dates. One Xerox copy of notice is also filed which was issued by Shisir Khan to the OP stating that as per the agreement for sale the flat was to be handed over and the registration was to be made. Xerox copy of reply is filed which reveals that OP No.1 has stated that there was a development agreement and OP No.1 was stopped for making the construction by Milan Chakra Pathagar and OP No.1 informed the police. But, no action was taken and so the construction could not be completed.
Now, the question is whether due to the non completion of the construction works Complainant has to loss his money. No original money receipt is filed. Furthermore, Complainant has not made any prayer for refund of the paid amount. If it is considered that construction could not be completed, the question of handing over of the flat does not arise. However, it is clear that Complainant has paid Rs.7,50,000/-. So, he is entitled for refund of the money with interest of 10% from the date of filing of the complaint. Accordingly, we are of the view that if OP No.1 is directed to refund Rs.7,50,000/- with interest of 10% from the date of filing of the complaint the object of justice would be served. Complainant has also prayed for a compensation of Rs.2,00,000/- which appears to be excessive because as per the allegation and counter allegations there appears some difficulties in making the construction. So, at best, Complainant can be provided with compensation of Rs.30,000/-.
Hence,
ordered
CC/47/2017 and the same is allowed on contest against OP No.1 and dismissed ex-parte against OP No.2. OP No.1 is directed, provided original receipts are filed, to pay Rs.7,50,000/- to the Complainant with 10% interest within three months of this order, in default the amount shall continue to carry 10% interest till realization, and in addition, OP No.1 is directed to pay Rs.30,000/- as compensation within this period, in default, this amount shall also carry 10% interest p.a.
