MRS. FIROZA KHATOON, PRESIDENT
The case of the complainant in a nutshell is that he entered into an agreement with the opposite party on 04.03.2015 to purchase a flat measuring about 850 sq. ft. on the second floor of premises no.14, Jugipara Main Road, P.S. Narkeldanga, Kolkata-700011 at a consideration of Rs.27,00,000/- (Rupees twenty seven lakh) only. It was agreed by the parties to the agreement that the opposite party will complete the work of construction of the building within eighteen months from the date of sanction plan. It was further agreed between the parties that till completion of construction, the opposite party will provide a two bed room flat as residence of the complainant for which the rent will be borne by the opposite party.
The complainant states that out of total consideration of Rs.27,00,000/- (Rupees twenty seven lakh) he paid Rs.22,00,000/- (Rupees twenty two lakh) only to the opposite party by issuing cheques. In spite of payment of Rs.22,00,000/- (Rupees twenty two lakh) only, the opposite party did not even start the work of construction of the building. After waiting for a considerable period, the complainant on 19.02.2018 sent a letter to the opposite party requesting him to refund the amount of Rs.22,00,000/- (Rupees twenty two lakh) only which he already paid to him or to hand over the flat on completion of the construction. The opposite party in reply dated 19.12.2018 expressed his willingness to refund the amount in four instalments and accordingly issued four post-dated cheques in favour of the complainant but all the cheques were dishonoured by the bank. Thereafter on request of the complainant the opposite party paid a sum of Rs.12,49,000/- (Rupees twelve lakh forty nine thousand) only on different dates on and from 11.09.2018 to 04.10.2019. But till date the outstanding due of Rs.9,59,000/- (Rupees nine lakh fifty nine thousand) only had not been paid by the opposite party to the complainant. The opposite party is liable for deficiency in service and harassment to the complainant. Hence this case.
In spite of service of notice the opposite party did not appeared in the case to contest the same and the case was fixed ex-parte vide order no.3 dated 24.03.2022. On 18.05.2022 Ld. Advocate Mr. Rajendra Prashad on behalf of opposite party appeared and by filing a petition prays for recall of order no.3 dated 24.03.2022 under section 40 of the Consumer Protection Act, 2019. On hearing both sides, the Commission had been pleased to reject the application under section 40 of Consumer Protection Act, 2019.
Thereafter the case was heard ex-parte as against the opposite party.
Point for decision
- Is the complainant a consumer in terms of Consumer Protection Act, 2019?
- Is the case barred by limitation?
- To what relief the complainant is entitled to?
Decision with reason
In order to proof the case the complainant has filed affidavit in chief along with original agreement for sale and original pass book of savings bank account no.50150849211 of Allahabad Bank. The agreement for sale is marked document-1 and the original pass book in the name of the complainant is marked document-2.
Point nos. 1 to 3
For the sake of brevity and convenience all the three points are taken up together for consideration and discussion. From the material on record and evidence of the complainant it is crystal clear that he is a consumer in terms of section 2(7) of the Consumer Protection Act, 2019 and the case is not barred by limitation.
Document-1 reveals that the complainant entered into an agreement with the opposite party on 08.03.2015 to purchase a flat on the first floor measuring about 850 sq. ft. a little more or less on the second floor of premises no.14, Jugipara Main Road, P.S. Narkeldanga, Kolkata-700011 at a consideration of Rs.27,00,000/- (Rupees twenty seven lakh) only. The original pass book of savings account no.50150849211 of Allahabad Bank stands in the name of complainant (document-2). This document-2 reveals that the complainant on 29.08.2014 paid sum of Rs.5,00,000/- (Rupees five lakh) only, on 05.12.2014 Rs.1,00,000/- (Rupees one lakh) only and on 11.03.2015 Rs.16,00,000/- (Rupees sixteen lakh) only to the opposite party. Therefore the complainant has paid Rs.22,00,000/- (Rupees twenty two lakh) only in total to the opposite party. Both the document nos.1 & 2 and evidence of the complainant remained unchallenged and un-rebutted in the case. Moreover, the complainant by submitting his unchallenged and un-rebutted evidence on oath stated that till date the opposite party has not started the work of construction at the said premises. It is further stated that the opposite party in terms of clause no.8 of the agreement for sale has not paid Rs.200 per day to the complainant on expiry of eighteen months from the date of sanction plan. On his request the opposite party refunded the sum of Rs.12,49,000/- (Rupees twelve lakh forty nine thousand) only in total on different dates on and from 11.09.2018 to 04.10.2018 but till date has not refunded the outstanding amount of Rs.9,59,000/- (Rupees nine lakh fifty nine thousand) only to the complainant. By not providing the complainant with the flat in time, the opposite party has been liable for deficiency in service.
In view of the unchallenged and un-rebutted evidence of the complainant we are of the opinion that the complainant has been able to prove his case beyond shadow of any doubt. In order to get relief of the claim of Rs.200 (Rupees two hundred) only per day on expiry of eighteen months from the date of sanction plan of the building the complainant has not submitted any sanction plan of the building from which the period of eighteen months can be calculated. We do not find any time limit has been referred in the agreement for sale dated 08.03.2015 for obtaining sanction plan by the opposite party.
However it is not expected that a buyer will wait for a indefinite period for completion of the work of construction of the building after investing money in terms of agreement for sale.
Having considered the discussion made above we are of the opinion that all the three points are decided in favour of the complainant.
Thus the complaint case succeeds.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed ex-parte with cost.
The opposite party is directed to pay a sum of Rs.9,59,000/- (Rupees nine lakh fifty nine thousand) only within two months from the date hereof along with 12% simple interest per annum from the date of filing of the case.
The opposite party is directed to pay compensation of Rs.1,00,000/- (Rupees one lakh) only to the complainant within two months from the date hereof, in default to pay simple interest @12% per annum till payment.
The opposite party is directed to pay litigation cost of Rs.20,000/- (Rupees twenty thousand) only to the complainant within two months from the date hereof, in default to pay simple interest @12% per annum till payment.
