Hon’ble Mr. Ajeya Matilal, Presiding Member
The Ld. Advocate for the complainant is present. Heard his submission in full.
This is a case under Section 17 of the CP Act, 1986, the complainants’ case is in short like that they were in urgent need of a flat. So they approached the OP No. 1 & 2 being the promoters/developers for purchasing a flat of 700 sq. ft. at the 2nd floor (North West Side) at 141/23 Prince Golam Hosen Shah Road Kolkata 700032 KMC Ward No. 93, in respect postal premises No. C/3Poddar Nagar within Jadavpur P.S. The OP No. 1 & 2 were acting as promoters /developers. They assured the complainants for selling a flat in the second floor for total consideration of Rs.20,60,000/- reflected in Annexure A of the complaint being the agreement for sale. Out of the said consideration money the complainant paid Rs.14,00,000/- in total. At the time of execution for Agreement for sale dated 02.10.2016 the complainant paid Rs. 10,00,000/- in total, Rs. 2,00,000/- vide Cheque No. 346197 dated 12.09.2016, Rs.2,00,000/- vide Cheque No. 346198 dated 17.09.2016 drawn on Canara Bank , Rs.2,00,000/- vide cheque NO. 199077 dated 26.09.2016 drawn on IDBI Bank and Rs.3,00,000/- by cash, Rs. 1,00,000/- vide cheque No. 346201 dated 28.09.2016 drawn on Canara Bank through different cheques. Subsequently, the complainant Paid Rs.2,00,000/- vide cheque No. 466931 drawn on SBI on 04.10.2016. The complainants paid Rs.1,00,000/- vide cheque No. 466931 on 30.11.2016 to the op No. 1. As per agreement for sale it was agreed upon between the parties that the OPs shall deliver the possession of the flat within 18 months on payment of the balance consideration money amounting to Rs.6,60,000/- by the complainant. It would reveal from Annexure B that they would re-deliver the possession of the flat concerned at 152 Bikramgargh within 10.10.2017 and the complainant would receive Rs.9,00,000/- from him and after receiving the amount the complainant will redeliver the possession of the flat. It would reveal from Para 7 of the complaint that the OPs shall pay the balance amount of Rs.9,00,000/- with 18% interest. We have already discussed there was a hand written note dated 30.08.2017, but the OPs did not pay the same. So the complainants served the Advocate’s letters to the OPs No. 1 & 2 dated 09.11.2017 thorough post asking them to pay the same. The OPs received the same which would reveal from Annexure C1 And C2 being partial documents. In spite of receiving the same the OPs did not pay the same. So the complainants filed the instant case praying for a direction upon the OPs to refund the balance consideration money of Rs.9,00,000/0 along with 18% interest. They also prayed for direction upon the OPs to pay Rs.1,00,000/- as compensation for mental harassment and Rs,.10,000/- for litigation cost. But in spite of receiving the notice the OPs did not pay the same. So the complainant filed this case. According to the complainant the cause of action of case arose on 02.10.2016, June, 2017 and lastly on 09.11.2017.
The OP No. 1 & 2 contested the case by filing written version denying the materials allegation of complaint petition . It would reveal form para no. 7 of the written version that it is admitted by the OPs that the complainants paid Rs.14,00,000/- They further stated therein that as the complainants did not pay the balance consideration money of Rs.6,60,000/-, so, the deed of conveyance could not be executed. It is also admitted in the written version that the OPs already repaid Rs.5,00,000/- out of Rs.14,00,000/-.
The points for consideration are:-
- Whether the complainants are consumers?
- Whether there is any deficiency in service?
- Whether there is any cause of action to file the case?
- Whether the complainants are entitled to relief as prayed for?
Decision with reasons:
All the points are taken together for the sake of convenience. We discussed about the particulars of agreement for sale payment of Rs. 14,00,000/- by the complainants. It appears that the OPs could not complete the construction and they refunded Rs. 5,00,000/-. So, it appears from the conduct of the OPs that they agreed to repay the balance consideration amount. We have also discussed about the receipt of legal notice by the OPs. The evidence adduced by the complainant on affidavit was not shaken by the cross examination made by the OPs. The OPs adduced evidence on affidavit. The complainant also put questionnaires but the OPs did not file any reply.
So, considering the facts and circumstances of the case and evidence on record we are of the opinion that the complainants are the consumers as they paid part of consideration money. The OPs are service providers which appeared in the agreement for sale. There is deficiency in service and the complainants are entitled to relief as prayed for. All the points are decided accordingly in favour of the complainants.
Hence it is ordered
The CC/900/2018 is allowed on contest against the OPs with litigation cost of Rs. 10,000/-. The OPs are directed to refund Rs. 9,00,000/- to the complainants with an interest of 9% p.a. from 30.11.2016 within 60 days from the date of this order, failing which, the complainants will be at liberty to put the order into execution.
Let a copy of this order be given to the complainants free of cost.
