HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT
This appeal has been directed against the judgment and order dated 24-11-2015 passed by Ld. DCDRF, North 24-Parganas at Barasat in CC/226/2015 where Ld. Forum concerned while disposing of the complaint case allowed the same exparte, directed the OP to regularize the amount of the complainant, to execute and register the deed of conveyance in favour of the complainant within two months from the date of the order, to pay compensation to the tune of Rs. 5,000/- (Rupees five thousand) for mental harassment and Rs. 2,000/- (Rupees two thousand) towards litigation cost, within one month failing which each OP shall have to pay Rs.100/- per day from the date of the order as punitive damages which shall be deposited before the SCWF, West Bengal.
Being aggrieved by and dissatisfied with the said judgment and order, the OP/Administrative Officer and Estate Manager, M & M Unit, KMDA filed this appeal.
Briefly stated, the case of the complainant of CC/226/2015 i.e. the respondent herein (and hereinafter referred to as the complainant) was that the complainant was in need for purchasing a flat for the purpose of her residence and approached the OP/appellant (and hereinafter referred to as the OP) for the purpose of a flat in the year 2008 and her fate favoured, she got allotment in respect of one flat of LIG type, Apartment No. 5 on the ground floor, measuring 375 sq.ft. for a consideration of Rs. 2,50,000/- (Rupees two lakh fifty thousand). The complainant paid a sum of Rs. 20,000/- (Rupees twenty thousand) as an application money for purchasing the flat. For the purpose of purchasing the said flat, the complainant also paid a sum of Rs. 42,651/- (Rupees forty two thousand six hundred fifty one) as 1st installment and was eager to pay the remaining installments. In the mean time the complainant lost her husband and took shelter at her matrimonial home with her three years old baby and could not give the next installments. After such mishap the complainant went to the OP/Authority of the KMDA to know how to pay the remaining part of the amount of consideration with interest but there was none to help her. The OP never intimated the complainant that payment of consideration was the essential for her for acquiring the flat but subsequently she became conscious to pay the balance amount along with interest for delay in making payment but the OP being the service provider did not respond to her prayer and thereby committed ‘deficiency in service’ and ‘unfair trade practice’ and that prompted the complainant to ventilate her grievance before the DCDRF claiming reliefs of regularizing the amount for payment and to execute and register the deed of conveyance in her favour and to pay a sum of Rs. 10,00,000/- (Rupees ten lakh) for causing physical and mental harassment and other consequential reliefs. The OP/appellant did not appear to contest the complaint case and the matter was heard exparte against it.
The complainant/respondent herein was a successful candidate in lottery for getting allotment of a flat measuring 375 sq. ft. and as per terms of agreement she was under contractual obligation to pay the consideration of Rs. 2,50,000/- (Rupees two lakh fifty thousand) as per terms and conditions of the KMDA. Admittedly the respondent herein defaulted in paying the amount as per specified date of payment and as per agreement the respondent had to inform in writing to KMDA at least 7 (seven) days before the date regarding payment of the installment keeping the scope by the KMDA to extend time upto a maximum of 60 days, subject to payment of penal interest @ 10% p.a. for the extended period. As per said agreement, the possession of the apartment will be needed after the allottees pays full amount of cost of apartment and 1% service charge, provided the allottee becomes a member of the proposed Cooperative Housing Society. The respondent herein admitted that she could not pay the installment in time, there was no such document before us that she ever prayed for extension of time as provided in the terms of agreement between herself and the KMDA. A letter dated 06-07-2010 (which is at page 7 of the file) clearly reflected that the allotment in favour of the respondent/applicant has been cancelled as per decision of the Authority and requested her for taking refund of application money immediately, that being the situation the chapter was closed w.e.f. 06-07-2010. Moreover, the complainant took recourse of the DCDRF concerned sometime in April, 2015 i.e. long after the contractual period. In the back ground we find no alternative but to hold that Ld. Trial Forum was not justified in passing the favourable order in favour of the complainant/respondent herein. Hence, we allow the appeal, set aside the judgment impugned dated 24-11-2015, and resulting that the complaint case stands dismissed. Parties do bear their respective costs of Appeal.
