Date of filing :3.7.2018

Judgment : Dt.22.1.2019

Mrs. Sashi Kala Basu, Hon’ble President.

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Utpal Mukherjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Tarak Nath Karmakar, (2) Sri Basudev Banik and (3) Sri Narahari Banik.

            Complainant’s case, in brief, is that OP No.2 & 3 being the joint owner of the land measuring 1 cottah 0 chittak 34 sq.ft. and 1 cottah 6 chittaks 0 sqw.ft. in total 2 cottah 6 chittaks and 34 sq.ft. more or less in N.P.No.60, R.S.Plot No.150(P) 1569(P), J.L.No.25 in Mouza-Haridevpur, P.S.-Haridevpur, within the Ward No.115 of Kolkata Municipal Corporation, entered into a development agreement with the OP No.1 for raising a 3 storied building thereon. The Complainant subsequently entered into an agreement for sale with the OP No.1 on 17.3.2017 to purchase a self-contained residential flat measuring about 450 sq.ft with the super built up area on the 1^st floor in the West side which is described in schedule B of the complaint petition at a consideration price of Rs.10,50,000/-. The delivery of the possession of the flat was to be done within 6 months from the date of execution of agreement for sale. Complainant has paid in total Rs.9,00,000/- to the OP as consideration money out of total amount of Rs.10,50,000/- But till today OP has not handed over the said flat to the Complainant in spite of repeated requests. Lastly, OP No.1 verbally agreed to cancel the agreement and also agreed to refund the consideration amount paid by the petitioner. He issued three cheques of Rs.1,50,000/- dt.2.3.2018, for Rs.2,50,000/- dt.25.1.2018 and of Rs.1,00,000/- dt.3.3.2018 to the Complainant. But, on presentation of the said cheques, they were dishonoured. In spite of sending of the notice informing about dishonouring of the cheques OP No.1 failed to refund the amount paid by the Complainant of Rs.9,00,000/-. Thus, the instant complaint has been filed praying for directing the OPs to refund the consideration amount of R.9,00,000/- paid by the Complainant, to pay Rs.2,00,000/- as compensation for harassment, mental agony and Rs.50,000/- as litigation cost.

            Complainant has annexed with the complaint petition, agreement for sale dt.9.3.2017, money receipts and the notice sent to the OP No.1, the developer.

            On perusal of the record, it appears that the notices were sent, but, as no step was taken by the OPs, vide order dt.30.8.2018, it was directed that the case shall proceed ex-parte against the OPs.

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

            Decision with reasons

            On perusal of the agreement filed by the Complainant, it appears that the agreement for sale was executed on 9.3.2017 by OP No.1, whereby the Complainant agreed to purchase the property described in the schedule B of the complaint petition on consideration price of Rs.10,50,000/-. It also appears as per terms of the agreement. OP No.1 being the developer was to hand over the possession of the flat within 6 months from the date of agreement.

Complainant has filed the money receipts and on perusal of the original money receipts filed in this case, it appears that Complainant paid Rs.2,00,000/- on 18.9.2016 by way of cheque, Rs.1,70,000/- on 21.11.2016 by way of cheque, Rs.1,00,000/- on 23.4.2017 by way of cheque, Rs.90,000/- by way of cheque dt.7.5.2017 and according to Complainant he also paid Rs.1,00,000/- by cash on the very date of agreement which has been reflected in memo of consideration in the agreement. So, if calculated the total amount paid by the Complainant will be Rs.6,60,000/- including the cash payment made by the Complainant of Rs.1,00,000/- on the date of agreement. So, the claim  of the Complainant in the complaint petition that he paid Rs.9,00,000/- in total cannot be accepted in the absence of the document. The Complainant has filed three cheques, appears to have been issued by OP No.1, allegedly towards return of the amount paid by the Complainant, being cheque dt.2.3.2018, 25.1.2018 and 3.3.2018 for Rs.1,50,000/-, for Rs.2,50,000/- and for Rs.1,00,000/- respectively and also has filed copy of the notice sent to the OPs intimating about the dishonor of those cheques on the ground of – stop payment. Since before this Forum there is absolutely no evidence contrary to the evidence filed by the Complainant, to counter or rebut his claim, Complainant is entitled to the refund of the said amount of Rs.6,60,000/- paid by him as there has been deficiency in service on the part of the OP No.1. Apparently, possession of the flat has also not been handed over and the amount paid by the Complainant has also not been refunded.

Hence it is

                             ordered

CC/404/2018 is allowed ex-parte against the OPs. OP No.1 is directed to refund the amount of Rs.6,60,000/- along with interest on the said amount @10% p.a. from the date of last payment made by the Complainant i.e.7.5.2017 within two months from the date of this order. OPs are further directed to pay litigation cost of Rs.10,000/- within the aforementioned period of two months, in default the entire amount shall carry interest @ 10% p.a. till its realization.