Date of filing: 14/03/2018                            

Date of Judgment: 05/10/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                 BRIEF FACTS

In order to buy one flat measuring 310 sq. ft. approx, at premises no. 119, Baghajatin ‘E’ Block East, Kolkata 700 086, P.S. Patuli, complainant made advance Rs. 5,00,000/- out of the total consideration of Rs. 8,00,000/- for the said flat to OP No. 1 who is the developer of the building at that premises and who had agreed to sale one flat to the complainant and also received the said amount of Rs. 5,00,000/- as advance. OP Nos. 2 & 3 are the owners of the land. Even after completion of the construction of the building OP No. 1 did not execute any formal agreement for sale with the complainant. No deed of conveyance was made nor possession of the flat was handed over to him. Complainant repeatedly requested the OP No. 1 for execution of the agreement and also for delivery of the flat to him on receipt of the balance amount of consideration. He also requested the same by issuing of letter through his Advocate. But OP No. 1 always avoided.

OP No. 1 in his written version claimed that no copy of the documents were served upon him and after completion of the building he delivered the possession of owner’s allocation and also sold flat from the developer’s allocation. He claimed that no flat on the 3^rd floor as D-2 measuring 310 sq. ft. was there in the sanctioned plan.

OP Nos. 2 & 3 who are the land owners claimed in their written version to have got possession of their allocations. Proforma OP No. 4 in his written version claimed that no relation was there between the complainant and OP No. 4 in respect of sale any 3^rd floor that at the premises in question.

Now the point for determination is whether the complainant is entitled to relief(s) in this case?

                                                               FINDINGS

We have gone through the materials on record including documents filed and also the written argument.

It is found that complainant claimed to have paid Rs. 5,00,000/- to OP No. 1 who is said to be the developer, for a 3^rd floor flat in the premises in question towards consideration of Rs. 8,00,000/-. Complainant filed evidence to which questionnaire was issued on behalf of the opposite party. Likewise, on the evidence of the OPs questionnaire was issued by the complainant but no replies were given by the OPs.

According to complainant, OP No. 4 was a mediator who introduced the complainant with OP No.1 about the construction and sale of flat at the premises in question. Complainant further claimed that though no agreement for sale was executed for the flat even after payment of advance by OP No. 1 on repeated request, yet he was assured by the said OP No. 1 of delivery of his flat after completion of the building. But no flat was delivered to him by OP No. 1 though he was all along ready to pay the balance amount of consideration.

In support of his claim complainant filed photo copies of two money receipts dated 23/05/2014 in his name and issued by Bivhas Chandra Mondal who is said to be partner of M/s. Joy Guru Construction, the developer. One money receipt vide Sl. No. 252 was for 1,50,000/- and the other vide 253 for Rs. 3,50,000/-. On both the receipts it has been written the payment was made for the Flat No. D-2, 3^rd floor, situated at 119, Baghajatin ‘E’ Block East. According to complainant the original of such money receipts were missing on 17/02/2019 from the Sheresta of his Advocate at the Court Compound for which he loged general diary with Alipore P.S. vide GDE. No. 534 dated 08/02/2019. By filing an application, complainant informed all these matters in connection with this case.

Be that as it may, what we find OP No. 1 neither in his written version nor in his evidence nor even in brief notes of argument specifically denied having received of Rs. 5,00,000/- from the complainant on 23.05.2014 for which receipts were duly issued. The only thing OP No. 1 claimed in his written version is that no information was made by the complainant to him for the money receipts No. 252 & 253 both dated 23/05/2014. Moreover OP No. 1 seemed to have avoided replying to the questionnaire as to the two money receipts showing payment of Rs. 5,00,000/- from the complainant for the flat to be given to the complainant. As there is no specific denial about the complainant’s contention that he had paid Rs. 5,00,000/- to OP No. 1 as part of consideration of Rs. 8,00,000/- for the flat the non-production of the originals of the money receipts dated 23/05/2014 is not at all total  for the case of the complainant.  

Here in this case complainant made alternative prayers for execution of the deed of conveyance in his favour or refund of money. But we find in the present circumstances an order for refund of money along with payment of interest and cost of litigation would be justified and OP No. 1 is liable to pay the said amount. The instant case against other OPs is liable to be dismissed.

Accordingly it is

                                                      ORDERED

That the instant complaint case being No. CC/128/2018 stands allowed on contest against OP No. 1 and dismissed on contest against the remaining OPs.

OP No. 1 is directed to refund the amount of Rs. 5,00,000/- along with interest @ 9% p.a. to the complainant from the date of filing of this case i.e. from 30/03/2018 till the actual payment.

OP No. 1 is also directed to pay Rs. 5,000/- to the complainant as cost of litigation.

OP. No. 1 is directed to comply with this order within 45 days from the date of this order failing which complainants shall be at liberty to proceed in accordance with the Law.

Dictated and corrected by me

President