Date of filing : 18.12.2018

Judgment : Dt.1.10.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Sri Arghya Maiti and (2) Mrs. Satadru Samanta (Maiti) alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Tarak Nath Karmakar, (2) Sri Basudeb Banik and (3) Sri Nara Hari Banik.

            Case of the Complainant, in short, is that OP No.1 is a developer and the OP No.2 & 3 are the owners of the landed property measuring about 2 cottah 6 chittaks 34 sq.ft. more or less in B.P.No.60, R.S.Plot No.150(P), 1569(P), 1569(P), J.L.No.25 in Mouza- Haridevpur, premises No.242, Naskar Para Road, P.S.-Thakurpukur. A development agreement dt.29.11.2016 was executed between OP No.1 and OP No.2 & 3 to develop the  said property and General Power of Attorney dt.9.12.2016 was also executed by OP No.2 & 3 in favour of OP No.1. It was also registered. Subsequently, Complainant knowing about the construction of 3 storied building by the OP No.1 as per development agreement between the OPs entered into an agreement dt.2.4.2017 with the OP No.1 to purchase a flat at a consideration of Rs.10,50,000/- and he paid a total sum of R.3,35,000/- to the said developer. Complainant with a view to take loan from the Bank to make further payment, submitted papers but learnt that due to the defect in the title of the property, Bank refused to grant loan. Thereafter, OP No.1 admitted that he  was unable to cure the defect and refunded the money paid by the Complainant by issuing cheque of Rs.3,00,000/- dt.6.7.2018, but, when it was presented for encashment, the same was returned unpaid by the banker of the OP No.1. So, a demand notice was sent and a criminal case was also filed against OP No.1 for the said dishonor of the cheque. So, as the Complainant has neither delivered the flat as agreed nor has refunded the money, the present complaint has been filed praying directing the OPs to pay the sum of Rs.3,35,000/- along with interest @ 14% p.a.as agreed, to pay Rs.5,00,000/- as compensation, to pay further interest on the amount till realisation and for litigation cost of Rs.50,000/-.

            Complainant has filed the agreement for sale dt.2.4.2017 entered into between the parties, copy of the letter sent to the Bank, copy of the notice sent by the Complainant to the OP No.1 dt.26.8.2018 and another copy of notice dt.1.10.2018 sent by the Complainant to OP No.1. Complainant has also filed the cheque which was issued by the OP No.1 but dishonoured.

            On perusal of the record, it appears that in spite of service of notice, no step was taken by the OPs and thus, vide order dt.19.3.2019, the case came up for ex-parte hearing.

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

Decision with reasons

In support of their claim, Complainants have filed agreement entered into by the OP No1, as developer and constituted attorney of OP No.2 & 3 with the Complainants on 2.4.2017 agreeing to sale the flat as described in the schedule therein to the Complainant at a consideration of Rs.10,50,000/-.

According to the Complainants they have paid a total sum of Rs.3,35,000/- and were ready to pay the balance amount by taking loan from the Bank. But it appears from the copy of the letter dt.2.5.2017 sent to the Bank by their Lawyer that there was some defect with respect of the title of the property. The cheque is also filed and also the copy of the order passed by the Ld. A.C.J.M., Sealdah dt.6.2.2019, wherefrom it appears that a complaint was filed by the Complainants against the OP No1 under NIAct. But the same was dismissed for default. So, on consideration of the agreement and the cheque which  was dishonoured establish the claim of the Complainants about the execution of the agreement and payment of amount by them to OP No.1 towards part-payment of consideration price. However, Complainants have not filed any document in order to show that they paid total sum of Rs.3,35,000/-. As copy of the notice dt.26.8.2018 as well as the memo of consideration annexed with the agreement indicates that total sum paid by the Complainants was of Rs.3,20,000/- only. Even though in the subsequent notice dt.1.10.2018 sent by the Complainants through their Ld. Advocate to the OP No.1, they have stated that total sum paid Rs.3,35,000/-, showing  Rs.15,000/- was also paid by cash on 10.8.2018 but the same cannot be accepted as the notice dt.26.8.2018 is very categorical regarding the payment of Rs.3,20,000/- only. So as the Complainants have not been handed over the flat nor the money has been refunded, Complainants are entitled to the said sum of Rs.3,20,000/- paid by them from the OP No.1 along with interest on the said sum @ 14% from the date of last payment i.e. 2.8.2017.

But as the interest has been allowed, we find no justification to allow the compensation as prayed.

            Hence, it is

                                             ordered

            CC/681/2018 is allowed ex-parte against OPs. OP No.1 is directed to refund Rs.3,20,000/- to the Complainants along with interest @ 14% p.a. from 2.8.2017 to till this date within two months from the date of this order. OPs are 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% p.a. till realisation.