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DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM
SOUTH
24 – PARGANAS ,
AMANTRAN
BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _131_ OF ___2016_
DATE OF FILING : 28.11.2016
DATE OF PASSING JUDGEMENT:27.07.2017
Present
: President :
Member(s) : Jhunu
Prasad & Subrata
Sarker
COMPLAINANT
: 1. Sri Arunava Sanyal, son of Sri Amiya Sanyal
2. Smt. Jhuma Sanyal, wife of Sri Arunava Sanyal both of
Gorhkhara Avay Apartment, P.S Sonarpur, Kol – 150.
-VERSUS
-
O.P/O.Ps
: Sri Ram Chandra Shah, son of Sri Kapil Shaw of
Purba Baidyapara, P.S Sonarpur, Kolkata – 150. And presently at 38, Raipur
Top Floor, Ramgarh More, (Near West wind), Housing, Kolkata-84.
___________________________________________________________________
J U D G E M E N T
Jhunu Prasad, Lady
Member
Interference of this Forum has
been sought for by the complainant contending gross negligence, deficiency
and unfair trade practice in rendering service towards the complainant by
the OPs.
In diminutive, the case of the
complainant is that, the O.P No 1 is the owner of a land measuring about
more or less 3 cottah 8 chittak 0 Sq. Ft. lying and situated at Mouza-
Sonarpur, J.L. No.39 RS Dag No 270(p) under R.S. Khatian No 577, holding
No. purbadaspara, P.S. Sonarpur, under Rajpur-Sonarpur municipality ward No
12. Dist South 24 PGs. The O.P No. 1. is carrying a business of promoter
and developer under name and style of Sarada Construction as O.P No.2. The
O.P No1 wants to develop the said land measuring about more or less 2
cottah 13 chittak after obtaining sanctioned plan and thereafter to
dismantle the dilapidated walls lying in the said landed property for
construction.
Complainant entered in to an
‘Agreement for sale’ on 22.07.2012 with the O.Ps which was executed on the
same date i.e. on 22.07.2012 and being intended to purchase one flat on 2nd
floor measuring about 700 Sq. Ft more or less super built up area of the
above mentioned premises in the new building to be constructed in favour of
the complainant within 24 months from the date ‘Agreement for sale’.
Accordingly the complainant paid
of Rs. 7,50,000/- to the O.P No.1 on different dates by cash and by cheque.
In spite of receiving the said
money of Rs. 7,50,000/- out of total consideration of Rs.12lacs, the O.P
No.1 neither developed the said land nor constructed the building.
Thereafter on 27.02.2015 the O.P
No.1 returned the amount of Rs. 2,000,00/- to the complainant through
cheque being No.000328, drawn on Union bank, Sonarpur branch, but the said
cheque was dishonoured due to ‘Insufficient Fund’.
Thereafter the complainant
several times visited the office of the O.P and requested to hand over the
flat or refund the amount which has been received from the complainant, but
till date the O.P No.1 neither constructed the said flat nor refunded the
said amount of Rs.7,50,000/- and the O.P No.1 palpably violating the said’ Agreement
for sale’ dated 22.07.2012.
Having no other alternative the
complainant filed this instant complaint for getting relief as prayed for.
Issued notice upon the O.Ps.
In spite receiving notice, the
O.Ps did not appear to controvert and to refute the case. So the complaint
case is heard exparte against the O.P.
Points for Determination :-
1. Was there any negligence or
deficiency in service on the part of the O.P?
2. Is the complainant entitled
to get relief as prayed for?
Decision
with Reasons:-
At the time of argument the complainant filed affidavit – in - chief, BNA
and some Xerox copies of document to support of his contention.
All points are taken up together for consideration for the sake of argument
and brevity.
We have carefully considered and scrutinized the submission made before us
by the Ld. Advocate for the complainant and critically perused all the
material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocate of the
complainant and on critical appreciation to the case record, it is evident
that admittedly one ‘Agreement for sale’ was executed by and between the
complainant as ‘purchaser’ and the O.P.No.1 as ‘vendor’ on 22.07.2012 for
purchasing a self contained residential flat measuring about 700 Sq. Ft. as
mentioned in the ‘H’ schedule of the flat of the complaint, for total
consideration amount of Rs. 12,00,00/- out of which the complainant paid of
Rs7,50,000/-.
Now, the fact remains that after stipulated period i.e. within 24 months
from the date of ‘Agreement for sale’ the O.P neither developed the said
land nor constructed the new building.
From perusal of the record, it is also evident that the O.P refunded
Rs.2,000,00/- to the complainant by way of cheque No. 000328 dated
27.02.2015 which was dishonoured due to ‘Insufficient fund’.
Therefore, from the discussions made above, it is crystal clear that the
O.P deliberately failed to hand over the said flat in question to the
complainant without showing any cogent reason, for which as per ‘Agreement
for sale’ the O.Ps are liable to refund the entire earnest money to the
complainant which he has been paid.
In this scenario the Hon’ble National Commission also observed that
when a developer fails to perform his duty as per ‘Agreement for sale’ and
delivered possession within the stipulated time i.e 24 months from the date
‘Agreement for sale’, purchaser has discretion either to take possession of
flat or ask for refund of deposited amount with interest.
Accordingly we hold that the purchaser’s claim for refund of money is
justified and entitled to take back the deposited money and compensation.
Moreover, all the allegations made by the complainant are unchallenged,
though the O.Ps got chance to contest and to refute by filing the written
version before the Forum, but the O.Ps deliberately failed to file the
same. Therefore, there are no reasons to disbelieve the unchallenged
testimony of the complainant’s case.
In light of the analysis, we are of the unanimous opinion that the
O.Ps committed gross deficiency in service under the per view of section 2
(1)(g) of C.P. Act 1986.
Therefore, we have no hesitation to hold that the complainant has
successfully proved his case and is entitled to get the relief as above
from the OPs. and consequently the points for determination are decided in
affirmative.
In short, the complainant deserves success.
In the result, we proceed to pass
ORDER
That the complaint be and the same is allowed exparte against the O.P. with
cost of Rs. 2,000/-
That the O.P is directed to refund money of Rs.7,50,000/- to the
complainants which has been paid as advance money to the OP within one
month from the date of this order along with interest @10% p.a. effective
from the date of final payment till realisation.
That the O.P is also directed to pay compensation of Rs.1,50,000/- for
mental agony and harassment and Rs.5,000/- as litigation cost to the
complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the
OPs. within a period of one month from the date of this order, the
defaulting O.P shall have to pay a sum of Rs.100/-per day, till its
realization, as punitive damage, which amount shall be deposited by the O.P
in the State Consumer Welfare Fund.
Let a plain copy of the order be supplied to the parties free of cost when
applied for.
Member
Member
Dictated and corrected by me
Member
The judgment in separate sheet
is ready and is delivered in open Forum. As it is ,
ORDER
That the complaint be and the same is allowed exparte against the O.P. with
cost of Rs. 2,000/-
That the O.P is directed to refund money of Rs.7,50,000/- to the
complainants which has been paid as advance money to the OP within one
month from the date of this order along with interest @10% p.a. effective
from the date of final payment till realisation.
That the O.P is also directed to pay compensation of Rs.1,50,000/- for
mental agony and harassment and Rs.5,000/- as litigation cost to the
complainant within one month from the date of this order.
In the event of non compliance of any portion of the order by any of the
OPs. within a period of one month from the date of this order, the
defaulting O.P shall have to pay a sum of Rs.100/-per day, till its
realization, as punitive damage, which amount shall be deposited by the O.P
in the State Consumer Welfare Fund.
Let a plain copy of the order be supplied to the parties free of cost when
applied for.
Member
Member
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