Sri Subal Chandra Roy,

son of late Baidya Nath Roy,

residing at Block 67/B, Unit -4,

B.F.  Siding, S.E. Railway Colony, Shalimar,

P.S. Shibpur, District – Howrah.---------------------------------------------- COMPLAINANT.

-          Versus   -

1.      Sri Swapan Dey,

proprietor of M/S. Unique Construction,

46/2, Kalitala Lane, P.O. Salkia,

P.S. Golabari, District – Howrah,

PIN – 711106.

2.      Sri Phanindra Nath Chakraborty.

3.      Sri Rabindra nath Chakraborty,

4.      Sri Nagendra Nath Chakraborty,

5.      Sri Harendra Nath  Chakraborty,

6.      Smt. Ashalata @ Rama Chatterjee,

7.      Smt. Anima Mal

residing at 31 & 32, Balai Mistry Lane, P.S. Shibpur,

District – Howrah,

PIN – 711102.------------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  The instant case filed by the complainant, Subal Chandra Ray   U/S 12 of the

C.P. Act, 1986 as amended upto date against the O.Ps. alleging deficiency in service U/S 2(1)(g) of the C.P. Act, 1986 prayed for direction upon the O.Ps. to deliver and / or handed over the flat in the building comprised at  31 & 32, Balai Mistri Lane, P.S. Shibpur, Howrah, or alternatively to refund the sum of Rs. 1,50,000/- as advance with 18% interest p.a. together with prayer for compensation and litigation costs as the O.Ps. in spite of repeated requests refused and neglected to make over / handed over the said flat to the petitioner in spite of deposition of earnest money out of total agreed amount of Rs. 6,84,250/-.

2.                  The O.P no. 1 in filing written statement contended interalia that the instant c

case is false, frivolous, motivated and vindictive one and the petitioner has no cause of action to purchase the suit flat in the manner as falsely stated in the complaint petition. Moreover, the O.P. no. 1 opined that the O.P. no. 4 have not been surrendered 50% area of the said property for which these answering O.P. no. 1 i.e., developer has not been completed the same which was within the knowledge of the complainant and keeping in mind it prayed dismiss the case.

3.                  The O.P. nos. 2 to 5 during submission of written version stated that the O.P.

no. 1 developer will responsible for all the activities regarding the construction  allied works that that to sell and execution of agreement with the purchaser / complainant and the answering O.Ps. have no role / responsibility in regard of execution of agreement and monetary transaction with the complainant. 

4.                  Notice was served upon the O.P. nos. 6 & 7  which was returned back by the

postal authority to this end with remarks ‘not known’ / ‘death’ and the same is considered to be a good service as per Apex  Court Order for which ex parte hearing was declared against O.P. nos. 6 & 7.

5.                  Upon pleadings of both parties two  points arose for determination :  

ii)                  Whether there is  deficiency in service on the part of the O.Ps.   ? 

iii)                Whether the complainant is entitled to get relief and compensation as prayed for ?

DECISION  WITH   REASONS      :

6.                  Both the points are taken together for consideration. The agreement dated 22-

12-2008, the money receipt dated 22-12-2008, 18-02-2009 and 18-06-2008 issued by the O.P. no. 1 clearly reveals that there was an agreement in between the parties for sale of a flat measuring 700 sq. ft. covered area + 15% super built area on the ground floor for the said purpose the O.P no. 1 received Rs. 1,50,000/- as part  payment against  the total consideration amount of  Rs. 6,84,250/-. In spite of repeated reminders /requests the O.P. no. 1 turned a deaf ear to the request of the complainant and in our considered opinion the denial on the part of the O.P. no. 1 amounts to gross deficiency in service  U/S 2(1)g), 2(1)(o). The O.P. no. 1 cannot have any respite  from the rigours of law as because the complaint is quite maintainable before this Forum in view of the  Section 3 of the C.P. Act, 1986. It appears that ( Rs. 6,84,250 – 1,50,000) = Rs. 5,34,250/- is remained outstanding for which the complainant tried his level best to negotiate with the O.P. no. 1 ie.., developer so that he can  get the respective flat in hand by executing and register the deed of conveyance. But all attempts are in vain.  

7.                  It is understood that the O.P. no. 1 in the garb of enhancement of price refused

to comply his part for handing over the flat  so far record is concerned. We are of the view that the O.P. no. 1 cannot have any respite from the rigours of law as stated above. Receiving the earnest money and refusing/ ignoring  the flat for handing over the same under which  the O.P. no. 1 comes within the purview of the deficiency in service and unfair trade practice. We are therefore, of the view that it is a fit case where the complainant is entitled to get the   relief as prayed for.  

                 Both the points are accordingly disposed of.

In the result, the complaint succeeds.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 28  of 2013 ( HDF 28 of 2013 )  be  allowed on contest against O.P. no. 1  with a litigation costs of Rs. 5,000/- and dismissed ex parte against O.P. nos. 6 & 7 and also dismissed  without cost  against the rest.

      The O.P.  no. 1 Swapan Dey  is hereby directed to refund  the E.M.D. money Rs.1,50,000/-  with  @ 12% interest from 19-06-2009 till realization  within 30 days from the date of this order.

      The O.P. no. 1  is also directed to pay sum of Rs. 50,000/- as compensation against prolonged harassment and mental agony of the complainant.

      The  amount of Rs. 55,000/- ( Rs. 5,000+  + 50,000  ) should be payable within 30 days from the date of this order  i.d. a penal interest of 12% per annum shall be levied on the unpaid amount till realization.

      The complainant is  at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.                                       Member,  C.D.R.F.,Howrah.

     (  Jhumki Saha  )                                                                (  T.K. Bhattacharya  )

 Member, C.D.R.F.,Howrah.                                            President,  C.D.R.F.,Howrah.