Date of filing: 13/09/2021

Judgment date: 04/04/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainants namely Sri Krishnendu Bhattacharya and Mrs. Tilottoma Patra under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs hereinafter) namely (1) Sri Rana Bhattacharjee and  (2) M/s. R.M. Enterprise alleging deficiency in rendering of service on the part of the OPs.

Case of the complainants in short is that a development agreement was entered into between the owners namely Sri Swapan Kr. Paul, Alokesh Paul and Mallica Paul as land owners with the OP No. 2 being represented by OP 1 the proprietor as developer to develop and construct a three storied building upon the land described in the schedule of the said development agreement. Consequent to the same opposite parties being the developer entered into an agreement to sell a flat to the complainant by agreement dated 27/10/2019 at a total consideration price of Rs. 21,00,000/- complainants have paid a sum of Rs. 11,75,000/- out of the said total consideration price of Rs. 21,00,000/- but subsequently came to know on enquiry that OP 1 has sold the said flat to one Sankari Das and also executed deed of conveyance dated 07/02/2020 in her favour and it was also duly registered. The said transfer was done by the OPs illegally and it was breach of contract by OPs. Subsequently finding no alternative, complainants asked for return of the sum paid by them. By an agreement dated 19/10/2020 executed by the OPs, OP 1 assured that they would return the said earnest money paid by the complainants within two months along with admissible interest of 12% p.a. along with penalty for such breach to the tune of Rs. 6,000/- per month for the last 18 months. But till the date of filing of the complaint, OP 1 neither returned the money along with admissible interest nor paid the penalty as agreed so the present complaint has been filed praying for directing the OP 1 & 2 to pay the claim amount of Rs. 11,75,000/- along with prevailing bank interest as per RBI rules, to pay compensation of Rs. 2,00,000/-, to pay Rs. 50,000/- as litigation cost and to pay Rs. 66,000/- towards arrear rent.

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

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

DECISION WITH REASON

In support of their claim, complainants have filed agreement for sale dated 27/10/2019 entered into between the complainants and the opposite parties in their capacity as developer and the constituted attorney of the owners. Complainants have also filed the copy of the development agreement and registered Power of Attorney dated 16/08/2021 executed by the owners in favour of the OP 1 to develop and raise three storied building. On perusal of the agreement for sale dated 27/10/2019 entered into between the parties, it appears OP 1 representing the OP 2 as developer and the constituted attorney of the owners agreed to sell the flat as described in the schedule ‘B’ of the said agreement at a total consideration price of Rs. 21,00,000/-. It also appears from the said agreement that complainants have made payment of the sum stated therein as earnest money. It is the specific claim of the complainants that they have paid total sum of Rs. 11,75,000/- to the OP out of the consideration price of Rs. 21,00,000/-. The said payment by the complainants is substantiated from the agreement executed between the parties on 19/10/2020 where by the OP 1 as proprietor of the OP 2 has acknowledged and admitted receiving total sum of Rs. 11,75,000/- from the complainants. He has also promised in the said document that he shall pay the rent for eight months @ Rs. 6,000/- per month and agreed to pay further amount of Rs. 1,48,500/-. So by the said agreement OP 1 promised and assured the complainants to refund Rs. 11,75,000/- paid by the complainants along with Rs. 1,48,500/- i.e. the total sum of Rs. 13,23,500/-.

It is specifically claimed by the complainants that the said agreement dated 19/10/2020 was executed by the OPs to return the sum as the subject flat agreed to be sold to the complainants, was already sold to someone else. Since before this commission, there is absolutely no contrary material to counter or rebut the claim of the complainants, complainants are entitled to the refund of sum paid by them of Rs. 11,75,000/- along with interest @ 10% p.a. from the date of agreement entered into between parties. Since compensation in the form of interest has already been allowed we find no justification to pass any separate order as to compensation as prayed by the complainants.

Hence

            ORDERED

CC/437/2021 is allowed exparte. Opposite parties are directed to refund sum of Rs. 11,75,000/-along with interest on the said sum @ 10% p.a. from the date of agreement dated 27/10/2019 till this date within two months from the date of this order. OPs are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months. In default of payment of the sum as directed above, the entire amount shall carry further interest @ 10% p.a. till its realisation.