Date of filing : 27.06.2019

Judgement : Dt.28.2.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Sadhan Kumar Seal alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Sri Sanjib Bhattacharjee.

            Case of the Complainant, in short, is that by an agreement for sale dt.20.8.2014 the Complainant agreed to purchase one flat being flat No.2 on the 1^st floor measuring about 600 sq.ft. area including 20% super built up area, situated under Dist.- South 24 Parganas, P.S.-Thakurpukur (Now Sarsuna), S.R.O.-Behala, R.S. No.84, J.L.No.16, Mouza – Dakshin Behala, Parganas – Balia, KMC Ward No.127 and the premises No.6, Banerjee Para Rd., from the OP at a total consideration of Rs.16,50,000/- OP is the developer and promoter who was authorized by a power of attorney dt.13.3.2013 executed by the land-owners of the schedule property namely – Parul Mitra, Jayanta Mitra, Prasasnta Mitra and Mithun Sen. Complainant has paid a total sum of Rs.11,40,000/- out of total consideration price of Rs.16,50,000/-. But, he has not been handed over the possession of the flat nor the sale deed has been executed on acceptance of the balance consideration of Rs.5,10,000/-. OP is trying to sale out the schedule flat to a third party in exchange of huge money. So, a notice was sent by the Complainant through his Ld. Advocate on 29.5.2019 with a request to hand over the physical possession of the flat or to return the entire amount. But, the OP paid no heed. A complaint was also lodged before the Sarsuna P.S. Subsequently, the present complaint has been filed praying for directing the OP to handover the flat on the 1^st floor as per agreement by executing a registered sale deed on accepting the balance of Rs.5,10,000/- or in alternatively to return the sum of Rs.11,40,000/- along with interest @ 10%, to pay a sum of Rs.1,00,000/- as compensation and litigation cost of Rs.50,000/-.

            Complainant has annexed with the complaint – Copy of the agreement for sale dt.20.8.2014, money receipts showing payment by the Complainant, copy of the notice dt.29.5.2019, copy of the complaint lodged before the concerned P.S.

            On perusal of the record, it appears in spite of service of notice no step was taken by the OP and thus, vide order dt.22.10.2019, the case was directed to be proceeded ex-parte against OP.

            During the course of trial, Complainant has filed affidavit-in-chief in support of his claim and ultimately argument has been advanced.

            So, the only point requires determination : Whether the Complainant is entitled to the relief as prayed for.

Decision with reasons

It is claimed by the Complainant that by an agreement for sale dt.20.8.2014 OP agreed to sell the flat as described in the schedule of the complaint at a consideration of Rs.16,50,000/-. It is claimed by the Complainant that he has made payment of Rs.11,40,000/- out of the total consideration price as agreed. But, he has neither been handed over the possession of the flat nor the money has been refunded. In order to support his claim Complainant has filed the copy of the agreement for sale dt.20.8.2014 and also several money receipts. On perusal of the agreement it appears that OP entered into the said agreement as constituted attorney for the owners namely Parul Mitra, Jayanta Mitra, Prasanta Mitra and Mithun Sen. Even though in the body of the agreement there is specific recital that the OP agreed to sell a flat, being flat No.2 in the 1^st floor, measuring more or less 600 sq.ft. including 20% super built up area from the builder or from the Developer’s allocation with specific mention that the same is more fully described in the 2^nd part of the agreement. But, there is no specific schedule with regard to the said flat sold to the Complainant it bears the description of the schedule A property but no schedule describing the flat sold to Complainant. Be that as it may, since it is apparent from the recital in the agreement that a flat was agreed to be sold by the OP to the Complainant and the several receipts filed by the Complainant substantiate his claim that Rs.11,40,000/- has been paid, he is entitled to the relief as prayed. But as it is apparent that the owners of the property have not been made party in this case and neither the copy of the development agreement entered into between the developer and the owners has been filed nor the copy of the power of attorney has been filed, so in absence of these two documents specially the power of attorney it is not clear whether the OP was empowered also to execute the deed of conveyance in favour of the intending purchasers. Thus, in the absence of owners, the prayer of the Complainant to direct the OP who is only the developer to handover the flat and to execute the sale deed cannot be allowed. However, since alternative relief of refund of amount paid by the Complainant has also been prayed, OP is liable to refund of the said sum along with interest on the said sum. Since interest is being allowed we find no justification to allow compensation as prayed.

            Hence

                          ordered

            CC/314/2019 is allowed ex-parte. OP is directed to return the sum of Rs.11,40,000/- along with interest on the said sum @ 10% p.a. from the date of last payment i.e. 6.3.2015 to till this date within two months from the date of this order. OP is further directed to pay litigation cost of Rs.12,000/- within the aforesaid period of two months, in default the entire sum shall carry interest @ 10% till realization.