Date of filing: 02/08/2021                                                    

Date of Judgment: 06/11//2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                  BRIEF FACTS

Complainants had entered into an agreement for sale on 12/03/2019 with the OPs for purchasing one flat measuring 800 sq. ft. super built up area as mentioned in the petition of complaint at a consideration of Rs. 20,50,000/- and they paid 4,40,002/- by way of five different cheques and also a sum of Rs. 2,40,000/- by cash to the developer OP No. 2 for which receipts were duly issued to the complainants. Though complainants were ready to fulfill their duty as per agreement to pay the balance consideration but the developer i.e. OP No. 2 failed to comply with the requirements in accordance with the said agreement. OP No. 2 failed to complete the construction within the stipulated period of 24 months from the date of the said agreement. A notice was issued by the complainants through their advocate on 23/05/2021 but despite receipt of the notice the developer failed to complete the construction and deliver possession of the flat to the complainants. Finally complainants filed this complaint before this commission praying for relief(s) as per prayer of the complainants.

OP No. 1 land owner filed one written version but OP No. 2 the developer did not appear to contest the complaint. So it was heard exparte against OP No. 2.

Point for determination is whether the complainants are entitled to relief in this case?

                                                                  FINDINGS

 On perusing the materials on record including the evidence of the complainants and documents produced by them it is found that complainants had entered into the said agreement for sale with the OPs on 12/03/2019 for purchasing 800 sq. ft. flat as mentioned in the 3^rd schedule of the said agreement for sale at a consideration of Rs. 20,50,000/-..The time period for completion of the construction and deliver of the possession was 24 months from the date of the agreement. In the memo of consideration attached with the said agreement for sale the OP 2 / developer admitted to have received Rs. 4,40,002/- by way of cheques on different dates. This apart we find the money receipt produced by the complainants showing payment of Rs. 2,40,000/- by cash to the developer. Thus the complainants are found to have paid to the developer in total Rs. 6,80,000/-. However, in the petition of complaint it was mentioned as Rs. 5,80,000/-. It is not made clear by complainants as to the stage of construction of the proposed building.

However, OP No. 1 who is found to be the land owner claimed in her written version that the development agreement she had entered into with OP No. 2 for the proposed building on 14/03/2018 and also the registered power of attorney on the same date in favour of the developer were cancelled by a registered deed of cancellation of the said agreement and also the power of attorney on 19/12/2018 on the ground of non-performance of the construction by the developer. The complainants did not speak much about this contention of OP No. 1. Only a single sentence of denial was made in their evidence. In the written argument submitted by the complainants there is also no whisper about this contention of OP No. 1.

In the petition of complaint complainants prayed for a direction upon the OPs to complete the construction and register the deed of conveyance in respect of the schedule flat in favour of the complainants on payment of balance consideration or alternatively a direction for refund of the earnest money paid by them along with compensation and cost of litigation. Here considering the facts and circumstances of the case particularly when no exact picture is forthcoming from the side of the complainants as to the exact nature of the proposed construction. So we think to pass an order for refund of money paid by the complainants. Thereafter OP No. 2 who received the money should be given a direction to refund the entire amount 6,80,002/- along with interest @ 9% p.a. from the date of 18/07/2019 when the last payment of Rs. 90,000/- was made in cash to OP No. 2. This apart complainant is entitled to Rs. 5,000/- towards cost of litigation.

Accordingly it is

                                                     ORDERED

 That the instant complaint stands allowed exparte against OP No. 2 and dismissed on contest against OP No. 1.

OP No. 2 is directed to refund the amount of Rs. 6,80,002/- to the complainants along with interest @ 9% p.a. from the date of 18/07/2019.

OP No. 2 is also directed to pay Rs. 5,000/- towards cost of litigation to the complainant.

OP No. 2 is directed to comply with this order within 30 days from the date of this order failing which the awarded sum shall carry interest @ 12% p.a. until realization and complainant shall be at liberty in accordance with law.

Dictated and corrected by me

President