Date of filing: 30/01/2019                                                    

Date of Judgment: 22/02/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by Sri Damodar Paswan under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) alleging rendering of deficiency in service on the part of the OPs.

Case of the complainant in short is that O.P. No. 1 being the developer and his wife O.P. No. 2 and the O.P. No. 3 being the owner entered into a development agreement to construct a new building on the structure standing at premises No. 240, Jadabgarh Ward No. 105 under P.S. Kasba now Garfa. O.P. No. 3 also executed power of attorney in favour of O.P. No. 1 to facilitate the construction of the building. Subsequently complainant entered into an agreement for sale dated 10/01/2013 with the O.P. developer to purchase a flat measuring 240 sq. ft. super built-up area at a consideration price of Rs. 4,32,000/-. Complainant paid a total sum of Rs. 2,50,000/- out of the total consideration price of Rs. 4,32,000/-. As per the terms of the agreement O.P. No. 1, the developer, agreed to deliver the possession of the flat within 24 months but even much after expiry of the said period of 24 months, opposite party failed and neglected to deliver the possession of the flat in favour of the complainant. So due to the delay in delivery of the possession, complainant requested for refund of the sum paid by him. O.P. executed a “Chuktipatra” on 11/09/2016 assuring to refund the sum paid by the complainant within the period as mentioned therein. Thereafter towards refund of the said amount O.P. developer issued three post dated cheques being nos. 600111, 081582 and 081581 for amount of Rs. 20,000/-, Rs, 20,000/- and Rs. 30,000/- respectively. But on presentation of the said cheques by the complainant, they were returned by bank with the remarks “fund insufficient”. So complainant sent a notice through his Ld. Advocate dated 19/12/2018 demanding to return the sum but all in vain. Thus the present complaint is filed praying for directing the opposite parties to hand over the possession of the flat or in alternative to refund the entire amount paid by the complainant with interest @ 18% p.a., to supply the sanctioned plan and the CC, to pay Rs. 3,00,000/- as compensation for delay in delivery of possession, Rs. 1,00,000/- towards harassment and mental agony and Rs. 50,000/- as litigation cost.

On perusal of the records it appears in spite of service of the notice as OPs did not turned up, the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

Complainant has claimed that by an agreement for sale dated 10/01/2013 O.P. developer agreed to sell a flat at a total consideration price of Rs. 4,32,000/- but the said agreement for sale has not been filed by the complainant. However, a “Chuktipatra” executed by the O.P. on 11/09/2016 has been filed wherefrom it appears that O.P. has admitted about the receiving of Rs. 2,50,000/- from the complainant towards the part payment of the consideration price to purchase a flat. As per the terms of the said ‘Chuktipatra’ O.P. developer promised to pay the said sum of Rs. 2,50,000/- on different dates as specifically mentioned in the said “Chuktipatra” and the last date for payment was 31/12/2017. According to the claim of the complainant, O.P. issued three cheques of Rs. 70,000/- in total but all the three cheques were dishonoured on the ground of “fund insufficient”. Complainant has filed the two returned cheques of Rs. 20,000/- and Rs. 30,000/- along with the bank returned memo. Since before this commission there is absolutely no contrary material to rebut or counter the claim of the complainant, complainant as entitled to refund of the sum paid by him along with compensation in the form of interest.

Hence

          ORDERED

CC/68/2019 is allowed exparte. O.P. No. 1 is directed to refund sum of Rs. 2,50,000/- paid by the complainant along with interest on the said sum @ 9% p.a. from the date of “Chuktipatra” i.e. 11/09/2016 to till this date, within two months from the date of this order. O.P. No. 1 is further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months.