Date of Filing : 15/06/2022
Date of Judgement: 25/09/2024
Smt Monihar Begum, Hon’ble President in Charge
The petitioners had made an agreement for sale on 16/11/2019 with the OP/Developer in respect of one self contained residential flat which is lying at Flat No.’C’ second floor, South Eastern Side, measuring 400 sq.ft. super built up area situated at Premises No.429, Kendua Main Road, Post Office- Garia, P.S. Patuli, Kolkata 700 084 at a consideration amount of Rs.8,00,000/- (eight lakhs) only and out of which petitioner initially paid Rs.3,50,000/- (three lakhs fifty thousands). Rs.1,15,000/- paid by cash and Rs.2,35,000/- paid by cheque which was duly acknowledged by issuing valid receipt to that effect by the said OP. OP also agreed to deliver the said flat to the petitioner.
Petitioner was ready to pay remaining amount of Rs.4,50,000/- (four lakhs fifty thousands) to the developer at the time of registration of the said flat as per the terms of the said agreement for sale dated 16/11/2019 but the developer did not handover the said flat in terms of the agreement dated 16/11/2019 and told them due to some unavoidable circumstances, he is unable to handover the said flat. The developer/OP gave a declaration in writing over a non-judicial stamp paper admitting the fact of exchange of flat and acceptance of consideration money in part and signed the same over that stamp paper on 27/01/2021. The OP thereafter entered into a fresh agreement dated 15/03/2021 wherein the developer promised to handover the said flat within six months from the date of agreement for a consideration of Rs.5,00,000/- only treating the earlier part payment as afresh to this agreement and in default to deliver within six months the entire consideration money Rs.3,50,000/- only will be refunded back to the petitioners.
After execution of such second agreement, petitioners waited for a considerable period of time but did not receive any information from the developer/Opposite Party about the progress of work even after expiry of six months from the execution of second agreement. The petitioners had requested the developer several times to comply with the terms of the second agreement for sale. But OP had failed to handover the possession of the flat. Alternatively, OP failed to refund the earnest money of Rs.3,50,000/- with interest. Developer/OP had the intention to deceive and defraud the petitioners withholding the said amount of Rs.3,50,000/- and the said acts and conducts on the part of the OP amounts to deficiency in service. As the OP failed to comply with the request of the petitioners, this case was filed by them against the OP/developer.
OP did not appear to contest the case, so it was heard exparte against him.
The only point of consideration is whether the petitioners are entitled to get relief(s) in this case.
FINDINGS
We have gone through the petition of the complaint, evidence and also the documents produced on behalf of the petitioners.
- Agreement for sale dated 16/11/2019
- Money receipt dated 16/11/2019
- Second agreement for sale dated 15/03/2021
- Legal notice dated 07/05/2022
It is found from the said money receipt that the OP received the amount having been paid to him by the petitioners but he failed and neglected to comply within the stipulated period as per agreement for sale dated 15/03/2021.
Petitioners claimed from the OP/developer either to handover the possession of said flat or refund of the said amount from the OP/developer as per agreement for sale.
We think, considering the materials on record, petitioners are either entitled to get the said flat or they are entitled to get refund of the said amount along with interest @9% p.a. from the date of agreement 15/03/2021. No cost for compensation to be paid since compensation is being paid by way of interest and Rs.8,000/- for litigation cost. OP/developer is liable to pay the said amount.
Accordingly it is
ORDERED
The instant case is allowed exparte against the OP/Developer.
OP is directed to handover the possession of the flat in accordance with the agreement dated 15/03/2021 on receipt of balance consideration of Rs.4,50,000/-.
Alternatively petitioners are entitled to get refund of Rs.3,50,000/- along with interest @9% p.a. from the date 15/03/2021 to the petitioners within 30 days from the date of this order.
OP is also directed to pay Rs.8,000/- for litigation cost to the petitioners also within the said period.
The aforesaid payment shall be made by the OP within 45 days from the date of this order failing which the petitioners shall be at liberty to proceed in accordance with law.
And also if the order is also not complied by the said OP within the above period, he is liable to pay the interest of entire amount @10% p.a. until realization.
Directed and corrected by me
Member
