Judgment dated 01-07-2016
This is a complaint made by Saumya Kumar Das against Shri Sanjoy Sharma proprietor of M/s. Ganapati Builder of 32, Siddhinath Chatterjee Road, Kolkata-700 034, P.S. Parnasree and Branch Manager, United Bank of India, South Subarbon Behala Branch, 233, Diamond Harbour Road, Kolkata-700034 praying for possession of the flat described in the schedule of the complaint. Alternatively a direction upon the OP No.1 to pay Rs.11,00,000/- with interest of 18% p.a. from the date on 22/9/2013 till recovery and direction upon the OP No.1 for compensation of Rs.3,00,000/- and also litigation cost.
Facts in brief are that OP No.1 offered to sale a flat located at No.3A, Southern Side of 2nd Floor measuring about 600 Sq. ft. at a consideration money of Rs.15,00,000/- and for that an agreement for sale was entered on 22/09/2013. Out of this amount Complainant paid a sum of Rs.2,10,000/- by cash and Rs.90,000/- by cheques when the agreement for sale was executed. Thereafter, Complainant paid a sum of Rs.8,00,000/- by cheque through United Bank of India, OP No.2. OP No.1 served a letter of possession on 07/10/2013 to OP No.2 and a copy was also served upon the Complainant.
OP No.1 undertook to hand over physical possession after completion of flat in habitable condition. Complainant was always ready and willing to pay Rs.4,00,000/- to the OP and asked him to execute and register the sale deed but of no use. So Complainant sent a notice to OP No.1 asking to hand over of physical possession. Since Complainant did not receive the possession he filed this complaint for deficiency in service.
On the basis of above facts complaint was admitted. But no step was taken by OP and so the case was heard ex-parte.
Decision with reasons
Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition.
Main point for determination is that whether the Complainant is entitled to reliefs as prayed for.
First prayer of Complainant is handing over of possession of the flat mentioned in the schedule alternatively refund of Rs. 11,00,000/-. On perusal of Xerox copy of the receipt it appears that Complainant paid Rs.3,00,000/- to the OP. A Xerox copy of the agreement for sale has also been filed. There is no document filed to establish that Complainant paid Rs.8,00,000/- after taking loan from the United Bank of India OP No.2 did not appear to substantiate the allegation of the Complainant. Accordingly order of Rs.11,00,000/- cannot be made. But since Complainant has paid Rs.3,00,000/- and OPs did not appear to challenge this payment, Complainant is entitled to refund of Rs.3,00,000/- of course with interest of 12% p.a. from the date when the OP No.1 was to hand over possession to the Complainant.
So far as prayer of compensation of Rs.3,00,000/-is concerned, it appears that there is no detailed explanation as to how Complainant suffered loss of Rs.3,00,000/- .
However, Complainant appears to be entitled for compensation of Rs.20,000/- and litigation cost of Rs.10,000/- .
Hence,
O R D E R E D
CC/109/2016 and the same is allowed ex-parte in part against both the OPs.
OP No.1 is directed to refund to Complainant Rs.3,00,000/- with 12% interest from the date mentioned above within two months of this order. OP No.1 is also directed to pay Rs.30,000/- as compensation and litigation cost within this period in default this Rs.30,000/- shall carry interest @ 12% p.a. after lapse of two months till realization.
