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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION (DIVISION BENCH)
R.K. Agrawal, M. Shreesha, JJ.
DEBOBRATA NASKAR SON OF LATE BADAL CHANDRA NASKAR - Appellant
Vs.
BIDYUT ADDYA AND OTHERS SON OF LATE BANKIM CHANDRA ADDYA - Respondent
First Appeal No. 685 of 2017, 1127 OF 2017
Decided On : 18-01-2019
Prasanta Banerjee, Adv., Swapan Kumar Pathak, Adv., Sukalyan Sarkar, Adv., Barun Prasad, Adv., Sanjoy Kr Ghosh, Adv., Subrata Manda, Adv., Sovanlal Bera, Adv.
Purchasers have the right to demand a refund of the amount paid with interest and compensation if possession of a flat is not given as per the committed date.
Headnote:
Consumer Complaint - Sale of Flat - Section 2(1)(g), Section 2(1)(o) - The court discussed the provisions of Section 2(1)(g) and Section 2(1)(o) of the Act, which define deficiency of service and unfair trade practices. The court emphasized that if possession of a flat is not given as per the committed date, the purchaser has the right to demand a refund of the amount paid with interest and compensation.
Fact of the Case:
The Complainants entered into an Agreement for the purchase of a flat. Despite repeated requests, the sale deed was not executed, leading the Complainants to seek direction from the State Commission to execute the sale deed or refund the amount paid with interest and compensation.
Finding of the Court:
The court found that the Developer did not adhere to the terms of the Agreement with respect to completion of the flat on time, and the Complainants cannot be construed as defaulters as the flat had not been handed over to them. The court modified the compensation awarded by the State Commission to simple interest at 10% p.a. from the respective dates of deposit till the date of realization.
Issues: Non-execution of sale deed, refund of amount paid, deficiency of service, and unfair trade practices.
Ratio Decidendi: The court held that if possession of a flat is not given as per the committed date, the purchaser has the right to demand a refund of the amount paid with interest and compensation. The court also emphasized that the Complainants cannot be construed as defaulters if the flat had not been handed over to them.
Final Decision: The court disposed of the appeals, confirming the findings of the State Commission with respect to deficiency of service and refund of the amount deposited by the Complainants. The court modified the compensation awarded to simple interest at 10% p.a. from the respective dates of deposit till the date of realization.
JUDGMENT/ORDER :
M. Shreesha, Member
1. Aggrieved by the order dated 30.11.2016 in Consumer Complaint No. 259 of 2015 passed by the West Bengal State Consumer Disputes Redressal Commission, New Delhi (in short "the State Commission"), the first Opposite Party namely, Debobrata Naskar and the second Opposite Party namely, Sayanti Dutta preferred First Appeal Nos. 685 of 2017 and 1127 of 2017 respectively. By the impugned order, the State Commission has allowed the Complaint in part directing first and second Opposite Parties to refund the amount of Rs.12,50,000/-, pay compensation of Rs.10,00,000/- and costs of Rs.10,000/- within 30 days from the date of the order failing which the amount shall carry interest @ 12% p.a. from that date till its realization. The case against Opposite Parties No. 3 to 8 was dismissed.
2. Since both these Appeals are arising out of a common impugned order, they are being disposed of by this common order.
3. The facts in brief are that the Complainants entered into an Agreement with the Opposite Parties on 11.05.2011 for purchase of a flat admeasuring 739 sq. ft. on the second floor at premises No. 56, Jadavgarh, P.S.-Kasba, Kolkata for a total sale consideration of Rs.12,25,640/- @ Rs.1300 per sq. ft. It was averred that the Complainants paid an amount of Rs.50,000/-by cash to the first and second Opposite Parties and subsequently in the month of October, 2011 the parties agreed to enhance the size of the flat and the rate from Rs.1300 per sq. ft. to Rs.1600 per sq. ft. the size of the flat was also agreed to be increased from 739 sq. ft. to 961 sq. ft. on the first floor for a total sale consideration of Rs.20,37,120. It was stated that the advance amount of Rs.12,75,000/- was paid to the first and second Opposite Parties on different dates. In the Agreement it was stated that the developer would hand over the subject flat within 12 months from the date of Agreement for sale. Despite repeated requests, the sale deed was not executed and therefore the Complainant approached the State Commission seeking direction to the Opposite Parties to execute the sale deed after receipt of the balance sale consideration or refund the amount of Rs.12,75,000/- with interest @ 12% p.a., compensation of Rs.10,00,000/- and costs of Rs.50,000/-.
4. Despite service of notice, Opposite Parties No. 2 to 8 did not appear before the State Commission and they were set ex parte. The first Opposite Party presented their case stating that the construction of the flat in question has already been completed and they are ready to hand over the same on receipt of the balance sale consideration. Complainants filed their Affidavit by way of evidence in support of their case. The State Commission based on the evidence adduced allowed the Complaint in part with the aforenoted directions observing as follows:
"The evidence on record also suggests that complainants have already paid Rs. 12,50,000/- as part consideration amount out of total consideration of Rs. 20,37,120/-. In accordance with the terms of the agreement the developer could not hand over the subject flat within 12 months as mentioned in the agreement. It was also stipulated that the balance amount will be paid at the time of taking possession by the complainants and as such the complainants did not commit any fault to fulfil their part of the obligations. Unfortunately, the developers could not keep their commitment. In this regard, the complainants run from pillar to post for redressal of their grievances. The submission of the Ld. Advocate that the developer is ready to hand over the flat could not inspires us because the complaints have made several correspondences with the developer and ultimately prayed for return of money by their letters dated 25.03.2013 and 19.11.2013 but those remain unattended.
In the agreement, it was agreed that if the developer failed to hand over flat within the specified period, the developer will return the full amount which already paid.
Therefor
