HON’BLE SUDIP NIYOGI PRESIDENT FACTS The complaint case, in short, is that respondent Nos. 2, 3 & 4 being the Thika tenants in respect of the premises No. 98/H/39, Narkeldanga Main Road presently Maulana Abul Kalam Azad Sarani, P.S- Phoolbagan, P.O- Kakurgachi, Kolkata- 700054 made one development agreement dated 24/01/2019 with respondent No. 1 for raising a multi-storied building on the said property obtaining sanction plan from the concerned authority while the said Thika tenants had 40 % share in the property and the remaining share would be given to respondent No. 1. On 15/04/2019 complainant entered into an agreement of lease of one flat measuring approximately 750 sq. ft. super-built-up area on the 1st floor right side of the said premises at a consideration of Rs.18,75,000/-. Complainant advanced Rs.10,00,000/-, in all by making payments on different dates to respondent No. 1 but he failed to discharge his services and obligations. It is alleged that instead respondent No. 1 allocated the said flat to respondent Nos. 5 & 6. Now, being the helpless and aggrieved by the act of the respondent No. 1, complainant informed the matter to local police station and she also approached the Assistant Director of Central Consumer Redressal Cell, Consumer Affairs, Government of West Bengal and ultimately, filed this complaint before this Commission praying for refund of the amount of Rs.10,00,000/- which she paid to respondent No. 1 towards consideration of the flat along with interest @20% p.a. and also compensation and cost of litigation etc. The instant case was heard ex parte against respondent No. 1. Respondent Nos. 2 to 4 contested the case by filing a written version. According to them, they do not have any knowledge, nor they were involved in the matter of agreement of payment of consideration between the complainant and respondent No. 1. They prayed for dismissal of the instant case against them. Respondent Nos. 5 & 6 also filed a separate written version stating that respondent No. 5 got lease of the flat, in question, from the Thika tenants on payment of premium amount of lease rent and developer signed the deed of assignment of lease and possession thereof was also handed over to them on 25/10/2020. They have nothing to show with regard to the complaint case. Complainant and the contesting respondents filed their evidence and they also exchanged questionnaires and replies thereto. Brief notes of argument were also filed on behalf of the complainant and respondent Nos. 2 to 4. Now, the point for consideration is if the complainant is entitled to get any relief(s) as prayed for. FINDINGS: We have gone through the materials on record including the documents filed by the parties. Complainant is found to have filed the development agreement between the Thika tenants who are respondent Nos. 2 to 4 and respondent No. 1 where the respondent No. 1 is shown to be the developer who would construct one G+3 building on the land as mentioned in the petition of complaint on certain terms and conditions. Complainant has also filed one agreement for lease of a flat made between the respondent Nos. 2 to 4 and respondent No. 1 on 15/04/2019 wherein the complainant had agreed to take lease of the flat in the said building at a consideration of Rs.18,75,000/-. According to complainant, out of the total consideration of Rs.18,75,000/-, she paid Rs.10,00,000/- but ultimately, the said flat was not leased out to her and that is why, she has come before this Commission for getting refund of the said amount. According to complainant, she paid Rs.4,00,000/- on 15/04/2019 by a cheque and thereafter, on 08/06/2019 she also paid Rs.4,00,000/- by cheque and cash and on 31/07/2019, she paid Rs.2,00,000/- by cash. Thus, she made a payment of Rs.10,00,000/-, in all to respondent No. 1. The complainant is found to have produced the document to show that she made the payment of the abovementioned amount. Complainant claimed to be the ‘Consumer’ within the definition of the term as per the Consumer Protection Act, 2019 as she hired the services of respondent No. 1 in getting the lease in respect of the flat, in question. Here, respondent No. 1 has not appeared to rebut the claim of the complainant. Having gone through the entire materials on record, we think that the prayer of the complainant for refund of the amount of advance made by her should be allowed. Accordingly, complainant is entitled to get refund of Rs.10,00,000/- along with interest @ 9% p.a. from the date of last payment i.e. on 31/07/2019. This apart, complainant is also entitled to Rs.5,000/- towards cost of litigation. Accordingly, it is ORDERED That the instant case be and the same is allowed on contest against respondent Nos. 2 to 4 and 5 & 6 and heard ex parte against respondent No. 1. Respondent No. 1 is directed to pay Rs.10,00,000/- (Rupees Ten Lakhs Only) along with interest @ 9% p.a. to the complainant from the date of last payment i.e. on 31/07/2019. Respondent No. 1 also to pay Rs.5000/- (Rupees Five Thousand Only) towards cost of litigation to the complainant. Respondent No. 1 is directed to comply with this order by making the aforesaid payment to the complainant within 45 days from the date of this order, failing which complainant shall be at liberty to proceed in accordance with law. |
