Kaushik Chaudhury v. Anwar Azim, Chairman and Managing Director of M/S. Lord Realty Pvt. Ltd.

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT -1- This is an application u/s.12 of the C.P. Act, 1986. . The case of the complainants, in short; is that on going through an advertisement published in the Ananda Bazar Patrika, a daily Bengali newspaper, the complainants interested to book a Bunglow in the township named Lord City Sonarpur including 04 Cottahs of land and had entered into an Agreement for Sale dated 23.05.2013. The OP-1 allotted Unit No. B-112 within Zone-7, comprised in Dag No.1421/ 22, J.L. No. 108 within Mouza Sonarpur along with a plot of land measuring about 04 Cottahs at Lord City Sonarpur at a total consideration of Rs.7,00,000/- excluding other charges. In terms of the Agreement for Sale the complainants paid the entire consideration amount of Rs.7,00,000/- to the OP. The OP failed and neglected to handover the subject Bunglow along with 04 Cotthas of land in spite of several request. In terms of the Agreement for Sale the OP is liable to deliver possession of the subject Bunglow along with plot of land within 42 months from date of commencement of the construction of Bunglow. The OP failed to construct the Bunglow and the complainants vide letter dated 26.08.2017 cancelled the said agreement. Despite of repeated request the OP did not refund the entire consideration amount. The OP being the Chairman & Managing Director of M/s Lord Realty Pvt. Limited issued two post dated cheques of Rs.87,500/- each on 25.01.2018 & 25.02.2018 with an assurance to pay the balance consideration amount within six months. Both the cheques were dishonoured with reasons Fund Insufficient. Neither the OP refund the consideration amount nor handover the possession and register the Sale Deed of the subject Bunglow including land in favour of the complainants. Finding no other alternative, the complainants have filed the instant consumer complaint before this Forum seeking redress and relief as incorporated in the prayer of the complaint. In spite of service of notice the OP did not turn up to contest the case. As such, the case has proceeded ex parte against the OP. DECESION WITH REASONS To establish their case complainant No. 1 Mr. Kaushik Chaudhury, adduced evidence on affidavit and also produced, Money Receipts, Agreement for Sale dated 23.05.2013, cancellation letter dated 26.08.2017, letter dated 19.05.2018 of the OP, two Nos. Cheques bearing Nos. 001870 and 001871 dated 25.01.2018 and 25.02.2018 drawn on Standard Chartered Bank, Rajdanga Main Road Branch and Return Memos of HDFC Bank, Salt Lake Branch. We have travelled the documents on record. On perusal of those documents, we find that in terms of the Agreement for Sale dated 23.05.2013 the complainants have been allotted a Bunglow being Unit No. B-112 within Zone-7 along with 04 Cotthas of land comprised in Dag No. 1421/22, J.L. No. 108 within Sonarpur Mouza at Lord City Sonarpur. In terms of the Agreement for Sale the complainants had paid the entire consideration amount to the OP against money receipts. The OP did not handover possession, execute and register Sale Deed of Unit No.B-112 in Zone-7 along with 04 Cottahs of land at Lord City Sonarpur to the complainants within 42 months from the date of commencement of the construction of Bunglow. Ultimately, the OP failed to construct the Bunglow. Photocopy of letter dated 26.08.2017 goes to show that the complainants cancelled the Agreement for Sale with a request to the OP to refund the entire consideration amount. The OP, Md. Anwar Azim, being the Chairman & Managing Director of M/s. Lord Realty Pvt. Ltd. issued two post dated cheques of Rs.87,500/- each after accepting the cancellation request and assured to refund the balance consideration amount -2- within six months from the letter dated 19.05.2018 but till date they did not fulfill their commitment. Both the post dated cheques dated 25.01.2018 and 25.02.2018 were dishonoured on account of Fund Insufficient . We do not find any reason why the OP has received the amount of Rs. 7,00,000/- from the complainants and utilized the money for their own gain. Therefore, we hold that the OP demonstrated a gesture of deficiency in service and indulged in unfair trade practice. OP has also caused harassment, mental pain and agony to the complainants. There is no contrary evidence on the part of the OP. The evidence of the complainant No.1 remains unchallenged. In absence of any contrary and controverting materials on record as well as evidence and documents on record, we are of the opinion that the complainants have been able to prove their case against the OP. Thus, the complainants are entitled to get relief against the OP. In the result, the case succeeds in part. Hence, Ordered That the complaint case be and the same is allowed ex parte against the OP in part with cost of Rs.5,000/- (Rupees Five thousand) only. The OP, Anwar Azim, Chairman & Managing Director of M/s. Lord Realty Pvt. Ltd. is directed to refund Rs.7,00,000/- (Rupees Seven lacs) only to the complainants within 45 days from the date of this order along with litigation cost. The OP is further directed to pay Rs. 20,000/- (Rupees Twenty thousand) only to the complainants for harassment and mental agony within the stipulated period in default, liberty be given to the complainants to put the order in execution, according to law. [HON'BLE MR. Swapan Kumar Mahanty] PRESIDENT [HON'BLE MRS. Sahana Ahmed Basu] MEMBER -3-