Date of filing : 08.07.2019

Date of Judgment : 18.10.2022

Mrs. Sashi Kala Basu, Hon’ble President

            This complaint case is filed by the complainant namely (1) Sri Sanjoy Sharma and (2) Smt. Tapasi Sharma U/s. 12 of the Consumer Protection Act, 1986 against the opposite parties (Referred as OPs hereinafter) namely (1) Sri Amit Mukherjee and (2) Sri Sudarshan Bhattacharjee alleging deficiency in service on their part.

            The case of the complainants in short is that OP No. 2 is the owner of the property and the OP No. 1 is the developer. They entered into a development agreement. Consequent to the same complainants agreed to purchase a flat and an agreement for sale dated 29/09/2018 was executed between the parties in respect of a flat measuring more or less 550 Sq. Ft. of super built up area situated on the 1^st Floor which has been described in Schedule ‘’C’’ of the said agreement. The consideration price was settled of Rs. 12,00,000/-. Out of which Rs. 2,40,000/- was paid by the complainant as earnest money and further paid sum of Rs. 25,000/-. So total sum of Rs. 2,65,000/- was paid by the complainant to the OP developer who was also the constituted Attorney of OP owner. The construction was to be completed within six months. After the execution of the agreement, complainant applied for House Building Loan but as per record of right the nature and character of the land was ‘Sali’. So complainant asked for refund of the earnest money but the OPs paid no need.   Legal notice was also sent but all in vain. Thus the present complaint has been filed by the complainants for directing OP No. 1 / the developer to return the amount of Rs. 2,65,000/- paid by the complainant, to pay compensation of Rs. 50,000/- and the litigation cost.

            On perusal of the record, it appears that notice was sent but in spite of its service, as no steps was taken either by OP No. 2 or by OP No. 1, vide order dated 21/10/2019 and order dated 05/03/2020, the case was directed to be proceeded exparte against them.

            So the only point requires determination is whether the complainants are entitled to the relief as prayed for?

Decision with Reason:

            In order to substantiate their claim, complainants have filed the agreement entered into between the parties, money receipt and also copy of the record of right. On perusal of the agreement it appears that the same was entered into between the parties on 20/09/2018 in respect of the sale of the schedule ‘C’ property in the agreement at a total consideration price of Rs. 12,00,000/- The OP No. 1 had represented OP NO. 2 as his constituted Attorney.  The memo of consideration in the agreement reveals that the sum of Rs. 2,40,000/- was paid by the complainants to the OP No. 1 and the same has been acknowledged by the OP No. 1. The money receipt dated 04/12/2018 further supports the case of the complainant that they paid further amount of Rs. 25,000/- towards the purchase of the subject flat. So apparently the total sum of Rs. 2,65,000/- has been paid by the complainant to the OP No. 1. The copy of record of right indicates that the property as described in schedule ‘A’ of the agreement is categorised as ‘Sali’ land. So the claim of the complainant that unless the land is converted to bastu, the bank refused to sanction any loan or no construction could be raised in the said Sali land cannot be disbelieved. Since before this commission there is absolutely no material to counter the claim of the complainants regarding the payment of sum and the nature of the land, Complainants are entitled to refund of sum as there has been not only deficiency in service but also unfair trade practice on the part of the OPs specially the OP No. 1. The complainants are also entitled to the interest on the said sum @8% p.a. in the form of compensation.

Hence,

            Ordered

 CC/332/2019 is allowed exparte against OP No. 1 but dismissed against OP No. 2. OP No. 1 the developer is directed to refund the sum of Rs. 2,65,000/- to the complainants along with interest on the said sum @8% p.a. from the date of the last payment i.e. 04/12/2018, to till this date, within 2 months from this date failing which the amount shall carry further interest @ 8% p.a. till its realization.

OP No. 1 is further directed to pay litigation cost of Rs. 10,000/- to the complainants within the aforesaid period of 2 months.