Date of filing: 08/03/2021                                                    

Date of Judgment: 03/10/2023

Mr. Sudip Niyogi, Hon’ble President.

                                                                BRIEF FACTS

The complainants had entered into an agreement for sale with OP Nos. 1 & 2 who were the developers and power of attorney holder of OP Nos. 3 to 6 on 19/01/2018 in order to buy one 1180 sq. ft. more or less flat on the 3^rd floor being flat no. 3B out of developer’s allocation and one car parking space measuring 120 sq. ft. in the ground floor at premises no. 298 Diamond Park within P.S. Haridevpur (formarly Thakurpukur) Kolkata – 700 104 at a consideration of Rs. 49,00,000/-. They paid Rs. 5,00,000/- at the time of execution of the said agreement. OP No. 1 also took Rs. 10,000/- for preparing agreement for sale and he assured the said amount to be adjusted with the cost of registration of the deed of conveyance. Complainants obtained loan from OP No. 7 who disbursed Rs. 12,00,000/- on 23/03/2018, Rs. 10,00,000/- on 03/05/2018 and Rs. 11,00,000/- on 24/07/2018 to the developer. Thus complainant paid a sum of Rs. 38,00,000/- and the remaining amount of consideration Rs. 11,00,000/- was to be paid at the time of handing over the possession and registration of the flat and car parking space. It is alleged that the said developers did not complete the said flat and hand over the possession thereof despite repeated request. One notice was also issued by the complainants through their advocate but the notice upon OP No. 1 returned “unclaimed” and finally complainants filed this case against the opposite parties praying for a direction upon the OPs to complete the flat and the car parking space, execution and registration of the deed of conveyance to pay compensation and cost of litigation etc.

In this case only OP No. 7 appeared and filed a written version admitting that complainant obtained loan in respect of the flat booked by them. No other opposite parties appeared to contest the case and thereafter it is heard exparte against them.

The point for determination is whether the complainants are entitled to any relief(s) in this case?

                                                                FINDINGS

Complainants filed their evidence on affidavit, also produced the photocopies of the documents in support of their case and also the brief notes of argument. OP No. 7 issued questionnaires to which complainants submitted their replies. However no evidence on affidavit was filed on behalf of the said OP.

We have gone through the entire materials on record and it is found that complainants had entered into an agreement for sale with OP Nos. 1 & 2 who are the developers on 19/01/2028 by which the complainant had agreed to purchase the schedule flat at a consideration of Rs. 49,00,000/-. Apart from this, complainants are found to have obtained loan for the purpose of their flat from OP No. 7. It is further found from the account statement and money receipt that developers were paid for the schedule flat by the bank OP No. 7 an amount of Rs. 33,00,000/- in total by making payment on different dates as stated in the petition of complaint. That apart complainant also paid rs. 5,00,000/- in total on different dates. Thus complainants are found to have paid in all Rs. 38,00,000/- out of the consideration of Rs. 49,00,000/-.

Considering the unchallenged testimony of the complainants including documents filed by them it is found that the developers failed to perform their part to complete the schedule flat and also to execute and register the deed of conveyance and they also did not respond to the request made by the complainant. Thereafter the complainants are entitled to relief(s) in this case and opposite parties Nos. 1 & 2 are liable to complete the project. OPs are also liable to execute and register the deed of conveyance in favour of the complainant and deliver the possession thereof. Complainants are also entitled to compensation and cost of litigation.

Accordingly it is

                                              ORDERED

That the instant CC/135/2021 is allowed exparte against OP Nos. 1 to 6 and dismissed against OP No. 7 on contest.

OP Nos. 1 & 2 are directed to complete the schedule flat and car parking space.

OP Nos. 1 to 6 are directed to execute and register the deed of conveyance in respect of the schedule flat and the car parking space in accordance with the agreement dated 19/01/2018.

The cost in this regard shall be borne by the complainant.

OP Nos. 1 & 2 are also directed to pay compensation of Rs. 30,000/- and cost of litigation of Rs. 6,000/- to the complainants.

OPs are directed to comply with the aforesaid order within 60 days from the date of this order failing which the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

President