Judgment : Dt.23.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Sri Sujay Mukherjee, son of Tapan Mukherjee and Smt. Sukla Mukherjee, wife of Sujay Mukherjee, both are residing at 30B, Banerjee Para Lane, P.S.- Kasba, Kolkaga-700 031 against Sri Benoy Karmakar, proprietor of SAI SIDDHI ENTERPRISE, having its office at 103B, Sarat Ghosh Garden Road, P.S.-Kasba, Kolkata-700 031 praying for a direction upon the O.P. handing over possession and also for registration alternatively to refund the balance amount along with interest and to pay for rented accommodation since October, 2015 and also to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.
Facts in brief are that Complainant entered into an agreement with the OP on 5.7.2015 for purchasing a flat measuring about 457 sq.ft. consisting of two bedrooms, one drawing with open kitchen, one toilet and one balcony in the 2nd floor of the three storied building situated a 69, K. P. Roy Lane, P.S.-Garfa, Kolkata-700 084. In terms of the sale agreement dt.5.7.2015 executed between the Complainant and the OP, Complainant paid a sum of Rs.9,83,500/- to the OP through cash and bank cheque against receipts in respect of receiving payment from the Complainant. OP failed to construct the flat with the time and hand over possession in stipulated period. As per the said agreement for sale the OP was obliged to bear the cost of rent accommodation of Complainant within the vicinity of the Complainant’s residence from October,2015 to the date of completion of the building and handing over possession. OP in order to deprive the Complainant with ulterior motive gave a declaration on 22.4.2016 that is already admitted his failure to handover possession within time and undertakes to hand over possession by June, 2016 and he also agreed that if failed to do so, he will refund the Complainant the received amount as per money receipts along with interest of 15%. OP did not hand over the possession of the flat. OP proposed the Complainant to pay Rs.10,80,000/- as the price of the flat. Till the date of filing of this complaint OP refunded Rs.4,50,000/- in cash and pay order and balance amount is still lying with the OP. Complainant is entitled to get refund of Rs.6,30,000/- with interest as per undertaking of the OP dt.22.4.2016. Complainant is further entitled for rent payment of Rs.7,000/- per month, since October, 2015. Complainant issued a legal notice and demanded Rs.6,30,000/- with rent, compensation and litigation cost. But, OP did not pay this. So, Complainant filed this case.
OP filed written objection and denied the allegations of the complaint. In paragraph 10 of the written version, OP has stated that he has already paid a sum of Rs.4,50,000/- out of the total sum of Rs.9,83,000/-. With this denial OP has prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts of the complaint against this OP has filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OP did not file reply.
Main point for determination is whether Complainant is entitled for the reliefs as prayed for.
In this regard, it appears that Complainant has prayed for a direction upon the OP for handingover possession of the flat and also for its registration. On perusal of affidavit-in-chief, it appears that Complainant has already received Rs.4,50,000/- from OP as refund of the money which he had paid to the OP.
Complainant has prayed alternatively for refund which he has paid, with interest and also the rent for the period during which the possession was not handed over to the Complainant. Complainant has also prayed interest over the amount which he paid.
On perusal of the agreement for sale, it appears that there is no provision that Complainant will be entitled for any rent amount due to non-handing over possession to the Complainant by the OP. There is a copy of declaration filed where on 22.4.2016 OP agreed that he is bound to handover the ready flat to the Complainant within 22.6.2016, in default he will refund the received amount along with interest of 15% within the month of June, 2016. If this declaration is accepted, it appears that OP did not refund the money and he only refunded Rs.4,50,000/-. It is contention of the Complainant that he paid Rs.9,83,500/- in total to the OP, out of which Rs.4,50,000/- was refunded. So, the amount left to be paid by the OP to the Complainant remains Rs.5,35,500/-. So, It appears that the Complainant is entitled for this amount by in any manner what so ever.
Complainant has prayed for rent since October, 2016 till realization of the full amount. In the complaint petition, Complainant has stated that in terms of the agreement, Complainant is entitled to this amount. But, it appears that there is no such agreement between the Complainant and the OP. As such, direction upon the OP for paying rent amount cannot be allowed.
Complainant has also prayed for compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.
In this regard, it is submitted that Complainant himself did not make the full payment, after which he would have been entitled for the possession of the flat. It is common prudence that unless the purchaser makes full payment, the possession cannot be handed over. Accordingly, Complainant cannot be entitled for compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-. At best he can get interest @ 10% from the date of filing of this complaint.
Hence,
ordered
CC/61/2017 and the same is allowed on contest in part. OP is directed to pay Rs.5,33,500/- to the Complainant within three months of this order with interest of 10% from the date of filing of this complainant till realization.
