Date of Filing : 04/09/2019
Date of Judgement : 05/09/2023
Sri Sudip Niyogi, HON’BLE PRESIDENT
The case of the complainant may be briefly stated as follows :-
That the Complainants had entered into an Agreement for Sale on 27/11/2016 with the Opposite Parties whereby they agreed to buy one self-contained flat being No. 2B, measuring an area of 400 sq.ft. super built up on the 2nd floor of the building at Premises No. 68 Talpukur Road, P.S. Thakurpukur, Kolkata 700 061 at a consideration of Rs.8,00,000/-. The Complainants also made an advance of Rs.1,25,000/- towards consideration. It was agreed that the possession of the said flat would be handed over to them within 15 months from the execution of the said Agreement for Sale and a deed of conveyance would be executed and registered in their favour within 18 months from the said date of agreement. According to the Complainants, Opposite Parties could not complete the said construction within the stipulated period and they requested the OPs to complete the construction at the earliest by a letter dated 15/02/2018. Subsequently, following discussions between the parties, the Opposite Parties expressed their difficulties to complete the construction and asked the complainant to cancel the Agreement and to take refund of the advance paid by him. Accordingly, the Opposite Parties issued two cheques amounting to Rs.1,25,000/- and Rs.27,500/- on 26/09/2018. But the said two cheques were dishonoured when presented to the Complainant’s Bank. Later, complainants also issued Demand Notice requiring the OPs to make refund of the advance along with interest through their Ld. Advocate, but to no effect. So, alleging deficiency in service against the Opposite Parties, Complainants filed this case and prayed for refund of the amount of advance along with interest and cost of litigation.
The Opposite Parties contested this case by filing one written version and also adducing evidence. According to them, Complainants did not make payment of consideration in accordance with the Agreement for Sale. They also claimed the instant complaint is not maintainable. So, they prayed for dismissal of the complaint.
Both parties filed their evidence, exchanged interrogatories and replies thereto. Now, the point for consideration is whether the complainants are entitled to relief(s) in accordance with the prayer in this case.
FINDINGS
On perusing the material on record, it is found, Complainants produced a copy of the Agreement for Sale dated 27/11/2016 and copies of the cheques issued by the Opposite Parties which were dishonoured, Advocate’s letter and also several communications made through online. No document, however, was produced on behalf of the OPs.
The said Agreement for Sale revealed that it was made between OP 2, who is the Proprietor of OP 1 Construction and the Complainants wherein it has been clearly stated that complainants would purchase the said Flat No. 2B as stated in the schedule B to the Agreement and also in the schedule to the petition of complaint at a consideration of Rs.8,00,000/- out of which Rs.1,25,000/- was made advance to the Opposite Parties and that has been specifically mentioned in the memo of consideration dt. 27/11/2016 in the said agreement. It is further found that Opposite Parties issued two cheques in favour of the Complainants for payment of the said amount of advance and interest. In fact, the Opposite Parties did not deny in their replies to the Questionnaire (vide reply 13) that they had issued two cheques, one being No. 248419 dt. 26/9/2018 for Rs.1,25,000/- and the other being No. 248421 of the same date for Rs.27,500/-. The said two cheques were issued for the entire amount – principle and interest.
The Opposite Parties also admitted in the said reply that due to some compelling circumstances, the said cheques were dishonoured on presentation. There is no evidence at all that subsequent to the dishonor of the said two cheques, OPs issued any other cheques for payment to the complainants.
Now, the complainant in this case has sought for refund of the amount paid by them along with interest and cost of litigation. The instant case is found to have been filed by the complainants under compelling circumstances in order to realize the amount advanced by them in accordance with the Agreement for Sale. Therefore, the instant case is found to be maintainable and the complainant is entitled to refund of Rs.1,25,000/- along with interest @9% per annum from the date of 27/11/2016 when the advance was made. This apart, the Complainants are also entitled to Rs.5,000/- towards cost of litigation.
Accordingly, it is
ORDERED
The instant complaint is allowed on contest against the Opposite Parties.
Opposite Parties are directed to make payment of Rs.1,25,000/- along with interest @ 9% per annum from the date of 27/11/2016 to the complainants.
Opposite Parties are further directed to pay Rs.5,000/- to the complainant as cost of litigation.
The aforesaid payment shall be made by the Opposite Parties within 45 days from the date of this order, failing which, the entire amount as aforesaid shall carry interest @ 12% per annum until realization in full and the complainants shall be at liberty to realize the entire amount in accordance with the provision of law.
