Judgment : Dt.15.1.2018
Shri S. K. Verma, President
This is a complaint made by one Sri Krishna Chandra Debnath, s/o Sri Subash Debnath of 29B, Sarat Ghosh Garden Road, P.S.-Kasba, Kolkata-700 031 against Sri Rajit Roy, son of Bishnandeo Roy, of 110/1A, Sarat Ghosh Garden Road, P.S.-Kasba, Kolkata-700 031, OP No.1 Sri Anjan Kumar Banerjee of 110/5/J/1, Sarat Ghosh Garden Road, P.S.-Kasba, Kolkata-700 031, OP No.2, Sri Sekhar Banerjee, s/o Ashini Bikash Banerjee of 62, Nazir Bagan, P.S.-Garfa, Kolkata-700 078, OP No.3 and Dewan Housing Finance Corporation Ltd. of UBI Building, 1st floor, 4 No. N. C. Dutta Sarani, Kolkata-700 001, O No.4 praying for refund of Rs.5,60,000/-, already paid to the developer, refund of Rs.86,700/- for registration and Rs.13,903/- as processing fees of DHFL and Rs.80,000/- as compensation for mental agony.
Facts in brief are that Complainant decided to purchase a flat in the description of o ne bed room with bath, kitchen, measuring 400 sq.ft.at ground floor, at the premises No.62, Nazir Bagan (KMC Premises No.51, Nazir Bagan) P.O.-Haltu, P.S.-Garfa, at an agreed cost of Rs.8,00,000/- and made it clear that Complainant will have to take housing loan. Accordingly, Complainant applied for housing loan to the Dewan Housing Finance Corporation Ltd. and after all necessary formalities DHFL granted loan of Rs.5,69,363/- by an offer letter dt.24.9.2013, which was duly registered. This agreement for sale was drafted under the guidance of DHFL. This agreement for sale contains the memorandum of consideration at page 23 exhibiting the up-to-date payment received by the developer, Sri Rajit Roy, sole proprietor of M/S Roy Enterprise. Out of Rs.5,60,000/- DHFL paid Rs.3,20,000/- by cheque and the balance amount of Rs.2,40,000/- by cash. After receiving the above noted payment developer completed the structural and brick works including roof of proposed flat. But, unfortunately, Rajit Roy was missing from his residence and office. Accordingly, finding no way out Complainant lodged a G.D.E. No.1600 dt.21.5.2014 with Garfa P.S. Thereafter the land owners Sri Anjan Kumar Baneree and Sri Sekhar Banerjee availing of the opportunity arisen out of developer, Sri Rajit Roy revoked their power of attorney and took absolute right and possession of partly completed flats. After that land owners started doing the rest job of the building and they did not allow Complainant to see the flat’s conditions and verbally promised to hand over the proposed flat at the agreed price of Rs.8,00,000/- minus Rs.5,60,000/-. The land owners sold the flat. Thereafter land owners did not hand over the possession of the flat to the Complainant. So, Complainant filed this case.
OP No.2 & 3 filed written version and denied the allegations of the complaint. Further, these OPs have stated that land owner Anjan Kr. Banerjee and his bother Sekhar Banerjee performed their part but the developer Rajit Roy willfully and deliberately neglected to perform his obligation and failed to render his service towards land owner in terms of agreement for development dt.14.12.2011. The land owners were compelled to file an application under section 12 of the CPAct before the Hon’ble District Consumer Disputes Redressal Forum, Alipur against the developer. Hon’ble District Consumer Disputes Redressal Forum, Alipur, directed the developer Rajit Roy and his company to handover the vacant possession of the two flats, owners’ allocation at that premises within 30 days from the date of the order. OPs were also directed to pay compensation of Rs.1,50,000/- and litigation cost of Rs.5,000/- to the Complainant, land owners. Thereafter land owners filed an application for execution to get the vacant possession of two flats. OP No.2 & 3, however, have submitted that the Complainant Krishna Chandra Debnath filed an application before the Hon’ble Assistant Director, Consumer Affairs & Fair Business Practices on same self matter against the OP No.2 & 3 by suppressing the original facts and circumstances. Again they have filed a petition before this Forum. So, their prayer should be rejected.
OP No.1 & 4 did not contest the case by filing written version and so the case is heard ex-parte against them.
Decision with reasons
Complainant filed affidavit-in-chief to which OPs filed questionnaire to which Complainant filed affidavit-in-reply. OPs did not file evidence.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for refund of Rs.5,60,000/- from the OPs. In this regard, it is the contention of the Complainant that OP No.1 is developer and he did not appear to contest the case. OP No.2 & 3 are the owners. Further, a copy of the registered agreement for sale is filed which reveals that this agreement was entered on 10.10.2013 between Anjan Kumar Banerjee and Krishna Chandra Debnath and Rajit Roy. Further, on perusal of the copy of agreement for sale, it appears that though the name of Anjan Banerjee appears in the agreement for sale but neither Anjan Banerjee nor OP No.3 Sekhar Banerjee have signed it.
As such, it can be said that Complainant made payment to the developer Rajit Roy because his signature appears on page No.23 of agreement for sale and so liability appears to be of the developer who has not contested the case.
So, we are of the view that OP No.1 is liable for refunding the money of the Complainant.
So far as a direction upon the OPs for paying the other reliefs are concerned, we are of the view that this can be accommodated if a compensation of Rs.50,000/- is awarded.
Hence,
ordered
CC/191/2017 and the same is allowed ex-parte against OP No.1 and dismissed on contest against OP No.2 & 3. OP No.1 is directed to pay Rs.5,60,000/- and compensation of Rs.50,000/- to Complainant within three months of this order, in default the amount shall carry interest @ 10% p.a. from the date of this order till realization.
