This is a complaint made by Sri Biswanath Basak, son of Sri Gopal Basak of 186/23, Jodhpur Gardens, P.O.-Lake Garden, P.S.-Lake, Kolkata – 700 045 against (1)Sri Sandip Kumar Nandy, OP No.-1, (2) Sri Dilip Kumar Nandy, OP No.2, both sons of Late Gouranga Chandra Nandy, (3) Smt. Namita Nandy, wife of Late Gouranga Chandra Nandy, OP No.3, (4) Smt. Kajal Nandy, wife of Late Pradip Kumar Nandy, OP No.4, (5) Priyanka Nandy, daughter of Late Pradip Kumar Nandy, OP No.5, all of 1/5, S. N. Ghosh Avenue Elachi, P.S.- Sonarpur, P.O.- Narendrapur, Kolkata-103, OP No.5, (6) Sri Amar Das (Contractor), 160/2, A.T.Chatterjee Road, P.S. – Lake, P.O.-Dhakuria, Kolkata- 700 031, OP No.6, (7) Sri Subhamoy Ghosh, son of Gour Chandra Ghosh, OP No.7 and (8) Smt. Poulami Ghosh, wife of Sri Subhamoy Ghosh, OP No.8, both of entire Second Floor Flat, situated at 40C, Ashutosh Chatterjee Road, P.O.-Dhakuria, P.S.-Lake, Kolkata – 700 031, praying for direction upon the OPs to refund Rs.9,00,000/-, compensation to the tune of Rs.8,00,000/- and also litigation cost of Rs.50,000/-.
Facts in brief are that Complainant is a peace loving and law abiding citizen. OP No.1 to 5 are land-owners, OP No.6 is the contractor/ developer and OP No.7 & 8 are intruders and unknown trespassers.
On 6.2.2012 Complainant entered into an agreement for sale with OP No.1 to 5 to purchase a flat on the 2nd floor, 40C, Ashutosh Chatterjee Road, P.O. Dhakuria, P.S.-Kasba now Lake, Kolkata – 700 031 and also paid Rs.9,00,000/- as earnest money out of a total consideration of Rs.13,00,000/-. In the said agreement for sale OP No.1 to 5 agreed to complete the flat within 14 months and at that time Complainant paid Rs.9,00,000/- and Rs.4,00,000/- was to be paid at the time of registration of deed of conveyance. As per instruction of OP No.1 to 5 Complainant paid Rs.16,750/- to the OP No.6 and also labour charges. Further, Complainant paid Rs.65,500/- to the OP as per bill dt.19.2.2015. Complainant also paid Rs.19,000/- for grill of the flat. OP No.1 to 6 constructed the entire flat with the money of the Complainant.
On several occasions, the Complainant requested the OP to complete the registration of deed of conveyance. But, unfortunately, on 23.1.2015, OP sent and advocate’s notice to sell the said flat to a third party in a higher price. Complainant replied through his Advocate Krishna Nanda De on 12.2.2015 that he is still willing to complete the registration of deed of conveyance. Despite receiving the notice OP remained quiet. Subsequently, on 27.3.2015 again sent a legal notice that they are going to sale the flat to any other third party. OP No.1 to 5 in collusion with OP No.6 put the padlock in the said flat. Complainant sent reply on 17.4.2015 requesting the OP No.1 to 5 that he is willing to purchase the flat. On 29.6.2015 Complainant lodged a written complaint to the OC, Lake P.S. to take necessary legal action and finally on 3.9.2015, police of Lake P.S. lodged a case under Sec.120B/406/420/506 IPC against the OP No.1 to 6 before the Ld. Chief Judicial Magistrate at Alipore.
It is unfortunate that on 14.8.2015 OP No.1 to 5 sold out the flat to OP No.7 8 at a higher price of Rs.24,00,000/- and the flat was registered before the Alipore Registrar. Thereafter, on 7.9.2015 Complainant lodged a complaint before the Consumer Affairs Dept. but, OP did not obey the direction of the Dept. So, Complainant filed this case.
OP No.1 filed written version and denied all the allegation of the complaint. Further, OP No.1 has alleged that this Forum does not have jurisdiction to pass any order. OP No.1 has also alleged that on several occasions he requested the Complainant to pay the balance money and get the conveyance deed in his favour. But, Complainant for no reason delayed the payment and thus under compelling situation OP No.1 to 5 sold the property to another person. Before selling the flat to other person OP No.1 to 5 issued notice to the Complainant. But, Complainant did not care and so the flat was sold.
In the circumstances, OP No.1 has prayed for dismissal of this case. Other OPs did not file written version and contest the case. So, the case proceeded ex-parte against other OPs.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint against this OP No.1 filed questionnaire to which Complainant replied.
Main point for determination is whether Complainant is entitled to the relief which he has prayed for.
Complainant has prayed for refund of Rs.9,00,000/-. On perusal of agreement for sale dt.6.2.2012, it appears that on page No.17 of the Xerox Copy of the agreement, it appears that OP received Rs.4,00,000/- only. In addition, Complainant has filed Xerox copies of the receipts of Rs.16,750/-, Rs.65,500/-. Further, it appears from annexure-D that OPs have issued a letter to the Complainant stating that only Rs.4,00,000/- was due to be paid to the OP by the Complainant. They have admitted that they received Rs.9,00,000/- from the Complainant. But, they could not register the sale deed in favour of the Complainant on the ground that Complainant did not pay rest of the consideration money.
So, it is clear that OPs received Rs.9,00,000/- from the Cmplainant nd as such they are bound to refund Rs.9,00,000/- to the Complainant. Further, it appears on perusal of the written version as well as questionnaire and affidavit-in-reply that there is no ground as to why the Complainant will not get refund of Rs.9,00,000/-
There may be circumstances due to which Complainant failed to pay rest of the money to the OPs. But, the money which Complainant paid to the OPs is liable to be refunded.
So, we do not find any reason as to why the first prayer of the Complainant cannot be allowed.
Second prayer of the Complainant is payment of compensation to the tune of Rs.8,00,000/-. On perusal of the material on record, it appears that both the parties alleged latches on each other and in such circumstances, the award of compensation cannot be granted. No doubt had OPs paid the money received by the Complainant, the Complainant would not have been compelled to file this case.
Accordingly, it appears that Complainant is entitled to litigation cost of Rs.10,000/- and also interest upon the amount from the date of filing of this complaint.
Hence,
ordered
CC/201/2016 and the same is allowed on contest against OP No.1 and ex-parte against other OPs. OPs are directed to refund Rs.9,00,000/- with interest of 10% from the date of filing of this complaint within two months of this order. In addition, they are directed to pay litigation cost of Rs.10,000/- within this period otherwise this amount also shall carry 10% interest till realization. The responsibility of the OPs is joint and several.
