Judgment : Dt.13.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Sikha Karmakar alleging deficiency in service on the part of the opposite parties namely (1) Sri Dulal Chandra Naskar, (2) M/s Emerald City (a) Sri Anup Choudhury and (b) Sri Saikat Sanyal.
Case of the Complainant in brief is that the Complainant in search of a suitable accommodation visited the office of the OP No.2 where she met the OP Nos.2(a) and 2(b) who represented themselves as partners of the OP No.2 Farm and offered the Complainant for flats/apartment around the locality. It was also presented before the Complainant that by virtue of a Development Agreement and Power of Attorney executed by and between the OP No.2 and OP No.1 partners of OP No.2 i.e. 2(a) and 2(b) are authorized to enter into Agreement for Sale in respect of a project ran by the OP No.2 at premises No.30, Santoshpur East Road. Accordingly, an Agreement for Sale was executed on 7.12.2012 between the Complainant and opposite party Nos.2 and 2(a) 2(b) as partners of OP No.2 and constituted attorney of OP No.1. According to the terms of the said agreement, the Complainant hired the housing construction service in respect of a flat on the 3rd floor measuring 425 q.ft super built up area and an open car parking space measuring about 120 sq.ft. on the ground floor at premises No.30, Santoshpur East Road, P.S.-Survey Park, Kolkata-700 075 at an agreed consideration of Rs.9,50,000/-. It is stated by the Complainant that on execution of the said agreement, the Complainant paid a sum of Rs.2,00,000/- and it was agreed by the parties that the balance amount of Rs.7,50,000/- would be paid by the Complainant in installment within seven days from receipt of intimation for payment. The Complainant has also stated that it was stipulated that possession of the said flat along with car parking space would be handed over by the OP No.2 within 18 months from the date of execution of the agreement but fact remains that delivery of possession has not been done by the OP so far although the Complainant had paid further sum of Rs.2,50,000/- on 19.12.2012. The Complainant has specifically stated that it was agreed by the parties that balance amount of consideration would be paid on demand by the OP No.2 but they never raised any demand for payment of balance amount. It is specifically stated by the Complainant that the Complainant accompanied with her husband visited the said project on several occasions and found on every occasion the progress of the work too slow. The Complainant stated that she, by a letter dt.11.10.2014 requested the OP No.2 to receive the balance amount of consideration and deliver possession of flat and the car parking space but in spite of receiving the said letter the OP No.2 did not respond. As a result, the Complainant filed a complaint with the local P.S. and accordingly a case was initiated by the said P.S. which is still pending. According to the Complainant, the OPs adopted unfair trade practice and thus intentionally going slow with the construction work. Accordingly, the Complainant prays for direction upon the OPs to remove the defects and unfair trade practices by delivery of possession of the flat and car parking space, to pay sum of Rs.5,00,000/- towards compensation, Rs.10,000/- towards cost of litigation and to pay a sum of interest @ 9% p.a. on the sum of Rs.4,50,000/- since December, 2014 till realization thereof.
Notices were served upon the OPs but they did not turn up. So, the case was fixed for ex-parte hearing vide Order No.6 dt.26.12.2017.
The Complainant adduced photocopies of agreement for sale dt.17.12.2013, general power of attorney dt.11.6.2012, money receipt dt.19.12.2012. No outstanding certificate dt.26.11.2010, development agreement dt.8.6.2012, etc.
Decision with reasons
On perusal of the copy of agreement dt.7.12.2012, it appears that parties entered into agreement for sale in respect of a property as described under schedule ‘B’ of the said agreement at an agreed amount of Rs.9,50,000/-. It is evident from the document on record that on execution of the said agreement the OP No.2 received Rs.2,00,000/- and thereafter on 19.1.2012 the OP No.2 received an amount of Rs.2,50,000/-. It further appears from paragraph No.4 page 6 of the said agreement which described the mode of payment of consideration that apart from earnest money the balance consideration amount would be paid by five installments first of which was to be paid on or before 19.12.2012 as to Rs.2,50,000/-. Thereafter, the subsequent payment dates remained blank. It also appears from the same paragraph that the balance amount will be paid to the developer in the manner that within 7 days after receiving notice from the developer. The Complainant by adducing evidence has stated that the developer never sent any notice to the Complainant demanding payment for consideration amount as per installment. Moreover, the evidence adduced by the Complainant has remained unchallenged. It is further observed that since the OPs entered into agreement for transfer of the scheduled properly receiving consideration amount for it they cannot resile therefrom unilaterally.
In such view of the matter, we are of opinion that the OPs are liable to deliver possession of the property in question after receiving the balance consideration amount from the Complainant.
Considering the circumstances, we are inclined to pass no order as to compensation and litigation cost or any other relief.
In the result, the Complaint case succeeds in part.
Hence,
Ordered
that CC/524/2017 is allowed ex-parte.
The OPs are directed to deliver possession and execute and register the deed of conveyance in respect of a flat on the 3rd floor at the premises No.30, Santoshpur East Road (Postal address – 11, Santoshpur East Road), Kolkata-700 075, P.S.-Survey Park, along with an open car parking space in favour of the Complainant, after receiving balance consideration amount from the Complainant within two months alternatively to refund Rs.4,50,000/- along with interest @ 9% p.a. to be accrued thereon from the date of payment of the same till realisation thereof.
