Order-10.
Date-03/11/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that the complainants being attracted by the advertisement dated 07-11-2012 by the OPs on Anandabazar Patrika, wanted to purchase a flat at Mouza Baruipur, P.S. Baruipur, Dist-South 24 Pgs. at Touzi No.250. The details of flat are also furnished in the petition of complaint. Eventually complainant paid an amount of Rs.51,000/- to the OPs vide cheque no.794563 dated 12-11-2012 drawn on Punjab and Sind Bank, Kolkata Main Branch on booking the flat. Further complainant paid a sum of Rs.1,99,410/- vide different cheques on different dates. Complainants, as such, paid a total payment of Rs.2,50,420/- i.e. 20 percent of the total consideration of the flat. Despite receipt of 20 percent of the consideration amount of the flat, OPs neglected and failed to enter into an agreement for sale of the flat with the complainants. The complainants also requested the OPs on several occasions for execution of the agreement and finally the OPs entered into an agreement with the complainants on 24-09-2013 for purchase of the subject flat, the details of which are mentioned in the petition of the complaint. The total consideration of the flat with open car parking space was settled at Rs.12,52,100/-. The complainants visited the site of the project in the month of December, 2013 and were astonished to find that there was no construction initiated in the project of the OPs. The complainants enquired about the matter with the office of the OPs but OPs failed to give any positive reply regarding construction work. The complainants, thereafter, approached the OPs on several occasions for returning of the booking amount of Rs.2,50,420/- as the OPs failed to start construction work and hand over the subject flat to the complainant within the specified time. The complainants also sent Advocate’s notice dated 282-02-2015 to the OPs for delivery of the flat but to no good. Hence, this case.
OPs have not appeared in this case in spite of receiving the summons. OPs neither filed written versions nor contested the case. The case has proceeded ex parte against the OPs as such.
Point for Decision
- Whether the OPs are guilty and deficient in rendering service to the complainants?
- Whether the complainants are entitled to get the relief as prayed for?
Decision with Reasons
We have travelled over the documents on record, i.e., Xerox copy of bank statement, Xerox copy of the pass book in the name of the complainants, Xerox copy of the agreement dated 24-09-2013 with receipt and memo of consideration of Rs.2,50,420/- out of the total consideration of Rs.12,52,100/- in respect of the subject flat. We also find that OPs entered into an agreement with the complainants on 24-09-2013 in respect of the subject flat as described in the petition of complaint at Vibgyor Niketan Baruipur, Dist – South 24 pgs. It is alleged by the complainants that OPs have not started any construction work in the project in question. It also appears that the OPs have received a total amount of Rs.2,50,420/- i.e. 20 percent of the total consideration for the subject flat from the complainants but have neglected and failed to make any construction in the project in question. Despite the receipt of 20 percent of the consideration amount of the subject flat from the complainants, OPs have not initiated any construction work and have failed to complete the flat within the stipulated period as per the agreement for sale or to give possession of the flat within the specified time period unto the complainants. It also appears that the OPs have not refunded the booking amount of Rs.2,50,420/- to the complainants in spite of approach on several occasions and service of legal notice dated 28-02-2015. We think that the OPs have been deficient in rendering services to the complainants for non-delivery of flat in terms of the agreement. We also think that the OPs have exhibited a gesture of unfair trade practice in receiving the booking amount and failing to carry on any construction work on the site in question. OPs have not also refunded the booking amount to the complainants. None came from the side of the OPs to challenge or contradict the version of the complainants in the petition of the complaint and as adduced in the Evidence of Affidavit. In absence of any contrary and controverting materials on record we think that OPs have been deficient in rendering services to the complainants and they have also indulged in unfair trade practice.
In result, the case succeeds.
Hence,
Ordered
That the instant complaint be and the same is allowed ex parte but on merit against the OPs.
OPs are jointly and severally directed to refund an amount of Rs.2,50,420/- to the complainants along with interest at the rate of10 percent p.a. w.e.f. 12-11-2012 till compliance within one month from the date of passing this order.
OPs are also jointly and severally directed to pay litigation accost of Rs.10,000/- along with compensation of Rs.1(one) lakh to the complainant for causing mental agony, pain and harassment and unfair trade practice within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.10,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
