FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The facts of the case as stated in the complaint and emerged from the documents attached with it, are that the OP-1 is a Developer and engaged in the business of the Development and Construction of residential building and selling its unit to the prospective buyers. OP-2 is the landowner of property measuring an area of 02 kottahs 10 Chittaks more or less comprised in Dag No. 46 to 48 pertaining to Khatain Nos. 30 and 95 under Tiljala Mouza being KMC Premises No. 75/1, Tiljala Road, Kolkata-700039. Developer and Owner of the above mentioned plot of land had entered into a Development Agreement dated 11.03.2005 for construction of a multi storied building to the ratio of 55:45. Complainant was a tenant under the OP-2/landlord. The OP-1 expressed his intention to sell a flat measuring about 1200 sq. ft. more or less consisting of four bed rooms, two kitchens, two toilets on the top floor of the proposed building from his portion to the complainant and an Agreement for Sale dated 09.10.2005 was executed between the complainant in one part and the OP-1 in other part. The sale price of the subject flat is Rs.6,84,000/-. In terms of the Agreement for Sale, the complainant has already paid Rs.6,00,000/- to diverse dates. The OP-1 is liable to deliver physical possession of the subject flat to the complainant within 06 months from the date of Agreement for Sale. The Developer refused to receive the balance sale price of Rs. 84,000/-. There is no immediate chance for construction of proposed building on account of pendency of a civil suit. Despite of several request, The OP-1 did not handover physical possesion of the subject flat on the plea of dispute between himself and the OP-2/landowner. The OP-1 vide letter dated 02.09.2013 assured the complainant to refund the advance sale price on the ground of pendency of a civil suit between himself and the landowner. The OP-1 did not refund the advance amount of Rs. 6,00,000/- despite of his letter dated 02.09.2013. Having no other alternative, the complainant filed the instant consumer case alleging deficiency in service on the part of the OP-1/Developer.
Despite publication of notice of the complaint in daily newspaper, the OPs did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex parte against the OPs.
Sir Gopal Chandra Saha has filed his evidence by way of affidavit in where he has reiterated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainant and also perused the material available on record.
In course of hearing the Ld. Advocate for the complainant submitted that there is a gross deficiency in service and unfair trade practice on the part of the OPs. Despite receiving 95 % of sale price, OP-1 did not hand over physical possession and also execute and register Deed of Conveyance in favour of the complainant. It is prayed that the consumer complaint should be allowed in terms of the prayer.
We have considered the argument of the Ld. Advocate for the complainant and examined the reocrd.
The complainant booked the subject flat on 09.10.2005 and an Agreement for Sale was executed between themselves. On perusal of the Agreement for sale dated 09.10.2005, we find that total sale price of the subject flat is Rs. 6,84,000/- and the complainant paid Rs. 6,00,000/- on diverse dates to the OP-1 being the Developer. In terms of the Agreement for Sale, the OP-1 should sell the subject flat from his allocation to the complainant and the subject flat shall be delivered within 06 months from the date of full payment of sale price. It is true that the OP-1 vide his letter dated 02.09.2013 informed the complainant to refund the deposited sale price on the ground that a civil suit being T. S. No. 89/2007 is pending between himself and the OP-2/landlord before the Ld. Civil Judge (Jr. Div.) First Court, Alipore in respect of subject property. In this context, it is pertinent to mention here that the complainant was ready and willing to pay the balance sale price of the subject flat to the OP-1 but on account of pendency of the Title Suit the development work of the proposed building delayed. The complainant invested money in this project without knowing the facts of pendency of civil suit. The OP-1 has not offered the possession of the flat in question to the complainant though in terms of the Agreement for Sale the OP-1 compelled to handover physical possession of the flat within 06 months from the date of full payment though the complainant is ready and willing to pay the balance sale price of Rs. 84,000/-.
In the case of Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC) =III (2019) SLT 435, and in Wg. Cdr. Arifur Rahman Khan Vs. DLF Homes Southeren Pvt. Ltd.VI (2020)SLT50=IV2020 CPJ10(SC) (Civil Appeal No. 6239/2019), the Hon’ble Supreme Court has held that the flat purchasers cannot be made to wait for inordinate period of time hoping to get possession and that refund of amount deposited is a redressal. Letter dated 02.09.2013 of OP-1 itself proved that he is willing to refund the advance sale price of the subject flat to the complainant in view of pendency of civil suit though the OP-1 did not refund the sale price of Rs. 6,00,000/- to the complainant as yet which constitute unfair trade practice, inasmuch as it deprives the complainant as consumer of the flat booked in the proposed building for which he has deposited his hard earned money. There is no evidence of the part of the developer as well as land owner to deny the allegations of the complainant.
In view of the above, the following order is made:-
- The OP-1/Developer shall refund the entire amount of Rs. 6,00,000/- (Rupees six lacs) only to the complainant with 9 % simple interest p.a. from the date of respective deposit till date of payment;
- The OP-1/Developer shall also pay Rs. 10,000/- (Rupees ten thousand) only as litigation cost to the complainant
- Payment shall be made within 03 months of this order. In case of default, Rs. 6,00,000/- shall be payable with a penal interest of 12 % p.a. for the period of delay.
Thus, the consumer case is allowed in parteex parte against the OP-1 and dismissed ex parte against the OP-2/land owner without any cost.
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
