Judgment : Dt.6.9.2017

Shri S. K. Verma, President.

            This is a complaint made by one Anjan Kr. Dutta, s/o Late Ananda Dutta, 1/C, Nandaram Sen Street, P.S.-Shyampukur, Kolkata-700 005 against Sri Soumen Chakraborty, s/o Sri Ashok Chakraorty, proprietor of A.G.Constructions, having its office at 4/4B, Motilal Gupta Road, Kolkata-700 008, praying for a direction upon the O.P. to deliver the possession of the flat and also for compensation of Rs.3,00,000/-.

            Facts in brief are that Complainant is a law abiding citizen. OP is a developer and entered into an agreement for sale on 3.3.2014 for purchasing a flat. It was settled between parties that the price of the flat would be Rs.7,00,000/-. Complainant started paying the consideration and OP used to issue receipts. Complainant already paid Rs.5,00,000/-. As per the agreement, Complainant was to receive the possession of the flat within 12 months from the date of registration of the agreement for sale.

            As such, OP should have delivered the possession of the flat on 3.3.2015. Complainant repeatedly requested the OP to hand over possession. But, OP did not hand over possession and Complainant filed this case.

        OP, Soumen Chakraborty filed written version and has denied the allegations of the complaint. Further, OP has stated that Complainant is not a consumer and it is frivolous complaint. So, this OP has prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief against which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP filed evidence to which Complainant filed questionnaire  and OP filed affidavit-in-reply.

Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon OP to deliver the possession of the flat in complete condition and also a direction for payment of compensation of Rs.3,00,000/-.

            In this regard, it appears that there is a schedule mentioned in the complaint petition, which reveals that Complainant was to be handed over the flat of 380 sq.ft. Receipts have been filed to show that there was an agreement between the Complainant and the OP, as per which OP has agreed to sell a flat to the Complainant and the schedule of that flat is mentioned in the copy of agreement for sale. Here Complainant has prayed only for handing over of the possession and not for registration of the flat. There is no explanation furnished as to whether the flat is ready for handing over. At the time of argument, Ld. Advocate for OP submitted that Complainant has paid the money. But, he did not make payment in time as per schedule. As a result of which, OP suffered loss and could not hand over the possession to the Complainant. Further, it appears that Complainant has not prayed for refund of the money which he had paid. Ld. Advocate for Complainant drew the attention of this Forum towards Paragraph 19 of the OP’s evidence and submitted that OP is ready and willing to refund the money with Bank interest. However, there is no such prayer in the complaint petition. Also, there is discrepancy of the amount, mentioned by the Complainant in the receipt and in the agreement for sale. In page 16 of Xerox copy of the agreement for sale, it is mentioned that Complainant paid Rs.5,00,000/-, where as from receipts it appears that Complainant paid only Rs.3.5-lakhs.

            As such, we are not in a position to pass any order of refund in favour of the Complainant, even if there is demand to that effect in the OP’s evidence.

            Accordingly, Complainant failed to prove the allegations.

            Hence,

ordered

            CC/69/2017 and the same is dismissed on contest.