For the Complainant - Mr. Rajendra P. Roy Chowdhury, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in a nutshell; is that he had entered into a letter of understanding dated 02.07.2016 with the OP to purchase a flat consisting with three rooms on the ground floor of premises No. 70B, Tiljala Road, Kolkata-700046 at a total consideration of Rs. 09 lacs. In pursuant to the said letter of understanding, the OP agreed to deliver possession of the subject flat to the complainant within 15 months from the date of execution of said understanding. Complainant had paid Rs. 09 lacs to the OP on 09.07.2016. Despite expiry of 15 months, the OP did not hand over possession of the subject flat to the complainant. Complainant had requested to the OP to hand over the subject flat but the OP failed to comply the terms of the understanding. Finding no other alternative, complainant issued legal notice dated 15.07.2019 requesting the OP to refund of booking money of Rs. 09 lacs but the OP reluctant to reply the legal notice. Being aggrieved of the failure of the OP to perform his part of contract, the complainant has filed the instant consumer complaint seeking following reliefs:-
- An order for refund of money paid on the date of execution of understanding, if the subject flat is not registered,
- An order for interest at the rate of 6 percentP.A. on the booking amount till its realization,
- An order to pay a sum of Rs. 1,20,000/- as compensation on account of mental pain, agony & harassment suffered by the complainant as well as Rs. 80,000/- as cost of litigation against the OP.
OP despite service of notice of the complaint has failed to file WV within the limitation provided U/s 13 (2) of the CP, Act, 1986. No request for condonation of delay or extension of time for filing WV was made. Thus, the right of OP to file WV was closed vide order dated 23.09.2019.
Decision with Reasons
Complainant Sikandar Khan has filed his evidence by way of affidavit supporting the allegations made in the complaint.
Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of the letter of understanding dated 02.07.2016 executed between the complainant and the OP, it is clear that vide said understanding the OP was compelled to hand over the subject flat to the complainant within 15 months. From the above document, it is also clear that agreed consideration amount was Rs. 09 lacs. Complainant has categorically alleged in the complaint petition that he has paid Rs. 09 lacs as consideration amount to the OP on 09.07.2016 but even more than 03 years after the expiry of stipulated period, the OP has failed to deliver possession. As the OP has opted not to file WV despite service of notice of complaint, the above allegations of the complainant are deemed to have been admitted as correct. In order to prove said allegations, complainant has filed his affidavit reaffirming the allegations. Thus, its stand to prove that despite of having received of Rs. 09 lacs, the OP has failed to deliver possession of the subject flat to the complainant. In absence of any explanation for failure to comply with stipulation of delivery of possession, we have no hesitation in concluding that the OP has committed deficiency in service as also has indulged in unfair trade practice.
Now, the question is as to what should be the amount of compensation to be granted to the complainant? Ld. Advocate for complainant, however, has pressed for 12 percentinterest on the booking amount of Rs. 09 lacs. In our opinion, the claim of interest at the rate of 12 percentP.A. is too much excessive.
In the instant case, OP has not shown any cogent and circumstances or reason which prevented him to deliver possession of the subject flat to the complainant within the stipulated period. Therefore, in our view, the OP shall refund the consideration amount of Rs. 09 lacs received from the complainant with interest at the rate of 06 percentP.A. Thus, in our view, OP is liable to refund Rs. 09 lacs which received from the complainant with 06 percentinterest P.A. on the said amount w.e.f. the date of payment of consideration amount.
For the reason aforesaid, the complaint is allowed ex parte against the OP with following directions:-
- The OP is directed to refund of Rs. 9,00,000/- (Rupees nine lacs) only to the complainant within 60 days from today along with compensation of simple interest at the rate of 6 percentP.A. from the date of payment till realization of amount.
- The OP is also directed to pay a sum of Rs. 5,000/- (Rupees five thousand) only as cost of litigation to the complainant within the stipulate period of 60 days.
The above directions be complied by the OP within a period of 60 days from the date of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act, 1986 against the OP.
Order be communicated to the complainant as per rules.
